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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION


THE FAIR HOUSING COUNCIL OF
RIVERSIDE COUNTY, INC.,
CYNTHIA BARROS, ROGER
BARROS, and LORI DILLARD
Individually and on behalf
of the GENERAL PUBLIC
     Plaintiffs,

UNITED STATES OF AMERICA,
     Intervenor

v.

No. SACV 00-988-DOC (ANx)

WILLIAM DAVID WINGO and
KAREN WINGO CIPRIANO,
Individually and doing
business as WINGO
PROPERTIES and VINCENT
STANCYK
     Defendants

___________________________________


UNITED STATES' REPLY TO DEFENDANT VINCENT STANCYK'S MOTION IN OPPOSITION TO THE UNITED STATES' MOTION TO INTERVENE

The United States respectfully submits this Reply Brief in support of its Motion to Intervene. This Reply Brief is being submitted in response to the Opposition filed by Defendant Vincent Stancyk.

The United States possesses an unconditional right to intervene in this action to defend the constitutionality of the Fair Housing Act under 28 U.S.C. § 2403(a). Section 2403(a) provides that where "the constitutionality of any Act of Congress affecting the public interest is drawn into question, the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality."

Federal Rule of Civil Procedure 24(c) sets forth the procedure for such intervention. It says that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to certify the fact of the constitutional challenge to the Attorney General and permit the United States to intervene. The Defendant in this case instead notified the Attorney General of his constitutional challenge to the Fair Housing Act by serving her with his moving papers directly. Thus, at this time, the Court has not certified the challenge to the Attorney General. In an attempt to leave undisturbed the briefing schedule stipulated to by the parties, the United States therefore moved the Court for permission to intervene. See Finch v. Mississippi State Medical Ass'n, 585 F.2d 765, 779 (5th Cir. 1978) (granting state leave to intervene where no certification took place but state Attorney General had actual notice of constitutional challenge).

Defendant's sole argument in opposition to the United States' Motion to Intervene is that his Motion to Dismiss raises an as-applied, rather than a facial, challenge to the constitutionality of the Fair Housing Act. However, the plain language of the statute makes clear that the right of intervention is triggered by "any action, suit or proceeding . . . wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question." 28 U.S.C. § 2403(a) (emphasis added). Nothing in § 2403 requires that the constitutional challenge be a facial one in order to trigger the government's right of intervention. Courts have permitted the United States to intervene pursuant to § 2403 in numerous cases where the defendants raised as-applied challenges to the constitutionality of federal statutes. See, e.g., United States v. Security Indus. Bank, 459 U.S. 70 (1982); Webber v. Credithrift of America, Inc., 674 F.2d 796 (9th Cir. 1982). See also, Connecticut v. Doehr, 501 U.S. 1 (1991) (state intervened, pursuant to analogous statutory provision, in order to defend constitutionality of state statute against an as-applied challenge); Tennessee v. Garner, 471 U.S. 1 (1985) (same). The Defendant's entire Opposition is based on a distinction without a relevant difference.

It is clear that the Defendant has raised a constitutional challenge to the Fair Housing Act. The Fair Housing Act prohibits race and sex discrimination in the sale or rental of virtually all housing. See 42 U.S.C. § 3604 (prohibiting discrimination in sale or rental of housing); § 3603(b) (setting forth limited categories of housing transactions exempted from the Act). The Defendant's claim that the Act cannot constitutionally be applied to discrimination which occurs in the local rental or sales transactions therefore represents a challenge to Congress' authority to reach such conduct. This claim, if successful, would greatly restrict the scope of protections provided by the Fair Housing Act.

For these reasons the United States should be permitted to intervene in the above-captioned case for the limited purpose of defending the constitutionality of the Fair Housing Act's prohibition of discrimination based on sex and race.

Dated: December 29, 2000

Respectfully submitted,

BILL LANN LEE
Assistant Attorney General

JOAN A. MAGAGNA
TIMOTHY J. MORAN
RIGEL C. OLIVERI
Attorneys for Intervenor
United States of America

Document Filed: December 29, 2000

General Information Housing and Civil Enforcement Section
 
Leadership
Steven H. Rosenbaum
Chief
Contact
Housing & Civil
Enforcement Section
(202) 514-4713
TTY - 202-305-1882
FAX - (202) 514-1116
To Report an Incident of Housing Discrimination:
1-800-896-7743
Mailing Contact
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530

Email: fairhousing@usdoj.gov

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