PER CURIAM.
AFFIRMED.
HAWKES, C.J., PADOVANO, and MARSTILLER, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
a v. Boyar Miller, P.C.,
2007 WL 2428572, at *2 (N.D. Tex. Aug. 28, 2007) (Fitzwater, J.)). But at the summary judgment
stage, "each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court therefore will consider evidence offered by ICP to support its summary judgment motion on standing.
B
The doctrine of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). To satisfy the requirements of Article III of the Constitution, ICP must show, at an "`irreducible constitutional minimum,'" that it has "suffered `injury in fact,' that the injury is `fairly traceable' to the actions of the defendant[s], and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Lujan, 504 U.S. at 560-61). The injury in fact, moreover, must be "concrete and . . . actual or imminent, not conjectural or hypothetical," and "the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 561 n. 1 (citations omitted).
Only Article III standing is required to bring a claim under the FHA. See ICP I, 2008 WL 5191935, at *3 (quoting Lincoln v. Case, 340 F.3d 283, 289 (5th Cir. 2003) ("The Supreme Court has held that the sole requirement for standing under the FHA is the Article III minima.")). But ICP also asserts claims under 42 U.S.C. §§ 1982 and 1983, for which there are prudential limitations on standing. See ICP I, 2008 WL 5191935, at *6 ("The critical question, however, is whether the prudential rule against asserting the rights of others — inapplicable under the FHA — bars ICP's standing under these statutes."). Under the prudential limitations, "[o]rdinarily, one may not claim standing . . . to vindicate the constitutional rights of some third party." Singleton v. Wulff, 428 U.S. 106, 114 (1976) (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)). In ICP I the court held that precluding ICP from asserting its §§ 1982 and 1983 claims would not serve the purposes of the prudential rule against third-party standing. See ICP I, 2008 WL 5191935, at *7. Because the court is not reconsidering that holding (and the parties do not urge the court to do so), it will only consider at the summary judgment stage whether ICP has established beyond peradventure that it has Article III standing.
C 1
To satisfy Article III standing, ICP must first establish injury in fact. In ICP I the court cited Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which the Supreme Court held if "[defendants'] steering practices have perceptibly impaired [a fair housing organization's] ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact." Id. at 379. The Court pointed specifically to the "consequent drain on the organization's resources" as evidence of that injury. Id. ICP seeks to place its clients in Walker Target Area Tracts, see supra note 3, or other high-opportunity (predominately Caucasian) areas. To place Section 8 participants in LIHTC housing, ICP spent an average of $491.00 per capita. To place clients in non-LIHTC housing, ICP expended an average of $993.00 per capita. ICP's average cost to secure non-LIHTC housing is much greater than the cost to obtain LIHTC housing because ICP often must pay non-LIHTC landlords bonus payments to convince them to participate in Section 8 or to lower the rent, and it must make a larger security deposit. This cost difference is even greater than these numbers reflect, because ICP must expend more time and effort to find non-LIHTC units that will even accept Section 8 vouchers. ICP has presented evidence that 86.6% of LIHTC developments informed ICP they would accept Section 8 vouchers, while only 11.9% of non-LIHTC developments would accept them. ICP has thus presented uncontroverted summary judgment evidence that the unavailability of LIHTC units in Walker Target Area Tracts drains the organization's resources. This demonstrates that ICP suffered injury in fact due to TDHCA's allegedly disproportionate denial of tax credits for
developments in those areas.
2
To establish causation, ICP presents evidence that TDHCA disproportionately denies tax credits to proposed developments in Caucasian neighborhoods, making it more difficult for ICP to find Section 8-participating housing in those areas. Because TDHCA is the sole entity with authority to award tax credits to developers, its decisions directly affect the availability and geographical distribution of low-income housing. Moreover, TDHCA need not be the sole cause of injury to be liable for that injury. See, e.g., Gautreaux v. Romney, 448 F.2d 731, 739 (7th Cir. 1971) (holding that defendant played "significant" role in Chicago's racially discriminatory housing system). The court held in ICP I that it could reasonably infer that "an increase in tax credits allocated for proposed developments in predominately Caucasian areas would over time increase the number of LIHTC units available in these areas." ICP I, 2008 WL 5191935, at *5. If ICP is injured by the existing distribution of low-income housing, and TDHCA's actions directly and significantly affect that distribution, it follows that ICP has established causation.
See supra § III(C)(1).
Defendants argue that TDHCA does not solely control the location of low-income housing in Dallas because the developers choose where to locate housing. But this argument misconstrues the nature of ICP's claims. ICP does not complain of the distribution of low-income housing in general; ICP challenges the allegedly discriminatory actions of TDHCA in disproportionately denying tax credits to proposed developments in Caucasian neighborhoods. TDHCA does control the approval or denial of applications actually submitted.
Defendants also point to Jaimes v. Toledo Metropolitan Housing Authority, 758 F.2d 1086 (6th Cir. 1985). In Jaimes the court held that plaintiffs (potential low-income housing tenants) could not establish causation sufficient for standing even though they were excluded from Toledo's suburbs, where there was no public housing. See id. at 1096. But in Jaimes the court noted that, even if defendants had sought to build such public housing, it was "still a matter of speculation and conjecture as to whether [] third party, non-defendant [suburban town governments] would grant approval for construction of units that plaintiffs could afford, qualify for, or be eligible to obtain." Id. The court also emphasized that plaintiffs had pointed to "no specific proposed project, location or site that might have been approved[.]" Id.; see also id. at 1096-97 ("[C]ourts have looked to a particular project or housing site which may have been affected by particular actions or failures to act on the part of government entities or officials.").
In the present case, no government agencies other than TDHCA have the authority to grant or deny tax credits. Although TDHCA must follow the mandates of § 42, it has final discretion in allocating tax credits. In addition, ICP presents evidence that proposed developments in Caucasian areas were disproportionately denied tax credits. The direct actions of TDHCA in denying those tax credits, for reasons to be analyzed below, to actual proposed developments distinguishes this case from the more hypothetical injury presented in Jaimes.
Defendants point to this sentence in ICP I: "Because no facts alleged suggest the existence of any independent, race-neutral reasons why TDHCA would disproportionately deny tax credit applications for proposed developments in Caucasian neighborhoods, it is fair and not merely speculative to trace this imbalance to the alleged consideration of race." ICP I, 2008 WL 5191935, at *5. Defendants argue that § 42's stated preference for development in low-income areas is a race-neutral explanation for the disproportionate denial of tax credit applications of proposed developments in predominately Caucasian neighborhoods. They assert that this race-neutral reason indicates that ICP cannot prove causation. But defendants' race-neutral explanation, and whether it is pretextual, goes to the merits of ICP's claim, not to standing. ICP has demonstrated beyond peradventure that TDHCA's approval or denial of tax credits to developers directly affects the distribution of low-income housing in Dallas, which injures ICP. The court holds that ICP has established the element of causation.
3
The third element is whether the injury to ICP will likely be redressed by a favorable decision. As discussed in ICP I, the broad equitable remedies available to this court would redress the alleged injury. See ICP I, 2008 WL 5191935, at *6. The court need not address any further evidence because its analysis in ICP I is sufficient.
Accordingly, the court holds ICP has established standing beyond peradventure, and it grants ICP summary judgment in this respect. The court denies defendants' Rule 12(c) motion and motion for summary judgment to the extent they seek dismissal based on ICP's alleged lack of standing.
IV
The court now turns to ICP's contention in its motion for partial summary judgment that it has established prima facie cases of discrimination under the FHA, § 1982, and § 1983.
A
As a threshold matter, the court notes that, in some instances, the existence of a prima facie case is not relevant. See Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607 (5th Cir. 2007) ("Because this case was fully tried on the merits, the McDonnell Douglas burden-shifting framework drops from the case. . . . [T]he sufficiency of the prima facie case as such is no longer relevant." (internal quotation marks and citations omitted)); Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 575 (5th Cir. 2004) (noting that while prima facie case is irrelevant after trial on the merits, it is applicable in context of motions for judgment as a matter of law and summary judgment). The Supreme Court has held that "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). But to evaluate the parties' summary judgment motions in this case, the court will consider ICP's motion for partial summary judgment as it relates to whether ICP has established prima facie cases. Under Fed.R.Civ.P. 56(d)(1), "the court should, to the extent practicable, determine what material facts are not genuinely at issue." If ICP can establish a prima facie case in support of its FHA claim, the burden shifts to defendants to prove that TDHCA's actions furthered a compelling government interest. Moreover, the question whether ICP has established a prima facie case of intentional discrimination under §§ 1982 and 1983 is relevant to other disputed issues in defendants' motions, such as whether defendants' justification for TDHCA's actions is pretextual. The existence of the prima facie case, together with evidence that defendants' proffered explanation
for its challenged conduct is pretextual, is sufficient to find intentional discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Additionally, the strength of the prima facie case can be relevant in determining whether defendants' proffered explanation for their actions is in fact pretextual. See, e.g., Prejean v. Radiology Assocs. of Sw. La. Inc., 342 Fed. Appx. 946, 950 (5th Cir. 2009) (per curiam). Therefore, the court will evaluate ICP's prima facie cases to decide defendants' motion for summary judgment. Because defendants essentially do not contest ICP's prima facie cases, the court will analyze this question in the context of ICP's partial summary judgment motion instead of considering it in the context of defendants' Rule 12(c) or summary judgment motions.
B
The court first turns to ICP's FHA claim. The FHA prohibits discrimination in the provision of housing. See 42 U.S.C. §§ 3604(a) and 3605(a). "A plaintiff seeking recovery under [the FHA] may proceed under either a theory of disparate treatment or disparate impact." Arbor Bend Villas Hous., L.P. v. Tarrant Cnty. Hous. Fin. Corp., 2005 WL 548104, at *12 (N.D. Tex. Mar. 9, 2005) (Means, J.); see also Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988), aff'd, 488 U.S. 15 (1988) (per curiam) ("The [FHA's] stated purpose to end discrimination requires a discriminatory effect standard; an intent requirement would strip the statute of all impact on de facto segregation.").
Section 3604(a) makes it unlawful, inter alia, to "make unavailable or deny, a dwelling to any person because of race[.]" 42 U.S.C. § 3604(a). Section 3605(a) makes it unlawful for "any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race[.]" § 3605(a). A residential real estate-related transaction includes providing financial assistance for the construction of a dwelling. See § 3605(b).
The court addresses only ICP's discriminatory impact claim under the FHA. ICP did not specifically plead in its complaint or request summary judgment on an intentional discrimination claim under the FHA. Defendants did not respond in their answer to an intentional discrimination claim brought under the FHA. The court will thus examine ICP's intentional discrimination claim under 42 U.S.C. §§ 1982 and 1983.
C
ICP maintains in its motion for partial summary judgment that it has established beyond peradventure a prima facie case of racial discrimination under the FHA. To establish a prima facie case of discriminatory impact (also referred to as discriminatory effect), ICP must show "adverse impact on a particular minority group" or "harm to the community generally by the perpetuation of segregation." Huntington Branch, 844 F.2d at 937; see also Arbor Bend, 2005 WL 548104, at *12. ICP need not show that TDHCA acted with discriminatory intent or motive. See Arbor Bend, 2005 WL 548104, at *12. ICP's prima facie burden is not a heavy one. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). ICP need only provide evidence that raises an inference of discrimination because "we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." See id. at 254 (citations omitted). If ICP establishes its prima facie case of discriminatory effect, discrimination is presumed. See id.
In determining whether a plaintiff has established a prima facie case of discrimination under the FHA, some courts have utilized factors set forth by the Seventh Circuit in Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977). See Huntington Branch, NAACP v. Town of Huntington, 668 F. Supp. 762, 785-87 (E.D.N.Y. 1987) (considering (1) strength of plaintiff's showing of discriminatory effect, (2) whether there is some evidence of discriminatory intent, (3) defendant's interest in taking action complained of, and (4) whether plaintiff seeks to compel defendant to provide housing or restrain defendant from interfering with other property owners), rev'd, 844 F.2d 926 (2d Cir. 1988). But these factors are not properly part of plaintiff's prima facie case; instead, they should be considered as part of the "final determination on the merits." Huntington Branch, 844 F.2d at 935-36 ("[T]reating the four factors as steps necessary to make out a prima facie case places too onerous a burden on [plaintiffs]."). Accordingly, the court will not consider the Village of Arlington Heights factors when deciding whether ICP has demonstrated a prima facie case.
ICP has established that its clients are African-Americans, members of a protected class, who rely on government assistance with housing, and that TDHCA has disproportionately approved tax credits for non-elderly developments in minority neighborhoods and, conversely, has disproportionately denied tax credits for non-elderly housing in predominately Caucasian neighborhoods. According to ICP's evidence, from 1999-2008, TDHCA approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Caucasian areas, but only approved 37.4% of proposed non-elderly units in 90% to 100% Caucasian areas. ICP also analyzed data produced by defendants in discovery that indicates that 92.29% of LIHTC units in the city of Dallas were located in census tracts with less than 50% Caucasian residents.
"Statistical analysis is admissible to establish disparate impact." Budnick v. Town of Carefree, 518 F.3d 1109, 1118 (9th Cir. 2008). The disparate impact analysis will "of necessity, rely heavily on statistical proof." Owens v. Nationwide Mut. Ins. Co., 2005 WL 1837959, at *13 (N.D. Tex. Aug. 2, 2005) (Sanders, J.).
Although the table that contains this information is presented as part of Dr. Thompson's report, he did not compile this information, and none of defendants' objections to his report applies. Further, defendants have not objected to the reliability of this data.
ICP's evidence is supported by the "Talton Report," a report of the House Committee on Urban Affairs prepared for the House of Representatives, 80th Texas Legislature, which found that TDHCA "disproportionately allocate[s] federal low income housing tax credit funds . . . to developments located in [areas with above average minority concentrations]." P. Oct. 2, 2009 App. 95. The Talton Report notes that, as of 2006, 77% of LIHTC units in the city of Dallas were in above-average minority areas, leading to "concentration problems." Id. A study by the U.S. Department of Housing and Urban Development ("HUD") reached a similar conclusion. See id. at 435, 486 (reporting that, from 1995-2006, 67% of LIHTC units in Texas were in greater than 50% minority areas, as opposed to 47% of all units; similarly, 69% of all LIHTC units in the city of Dallas were in greater than 50% minority areas, as opposed to 45% of all units).
This evidence establishes that TDHCA disproportionately approves applications for non-elderly LIHTC units in minority neighborhoods, leading to a concentration of such units in these areas. This concentration increases the burden on ICP as it seeks to place African-American Section 8 clients in LIHTC housing in predominately Caucasian neighborhoods. Other courts have held that actions that cause disproportionate harm to African-Americans and produce a segregative impact on the entire community create a strong prima facie case. See, e.g., Huntington Branch, 844 F.2d at 938 (holding that failure to re-zone Caucasian neighborhood for LIHTC apartments perpetuated segregation and had adverse impact on Section 8 participants who were disproportionately minorities); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977) (same); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1219-20 (2d Cir. 1987) (holding that city perpetuated racial segregation in housing, in violation of FHA, where 96.6% of subsidized housing was in areas with 40% or greater minority population); see also Dews v. Town of Sunnyvale, 109 F.Supp.2d 526, 565-68 (N.D. Tex. 2000) (Buchmeyer, C.J.). Because ICP has adduced evidence that is uncontested, it has established beyond peradventure its prima facie case of discrimination under the FHA. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1993) (noting that prima facie case can be established as a matter of law where plaintiff's facts are uncontested). The court therefore grants partial summary judgment holding that ICP has made a prima facie showing that defendants violated the FHA.
ICP also requests that the court grant summary judgment holding that defendants' actions bear more heavily on minorities than on Caucasians, one factor in the Village of Arlington Heights circumstantial evidence framework. Although the court has authority to enter a partial summary judgment determining that material facts are not genuinely at issue, see Rule 56(d), it declines to do so as to this single circumstantial-evidence factor.
D
The court turns next to ICP's intentional discrimination claim brought under 42 U.S.C. §§ 1982 and 1983. ICP may use direct or circumstantial evidence to establish its prima facie case of intentional discrimination under §§ 1982 and 1983. See Vill. of Arlington Heights, 429 U.S. at 266. ICP has presented no direct evidence of discrimination, so the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. See Arbor Bend, 2005 WL 548104, at *6.
E
ICP moves for summary judgment establishing its prima facie case of discrimination under § 1982 and the Fourteenth Amendment,
actionable under § 1983.
The court uses the term "prima facie" to mean the establishment of a legally mandatory, rebuttable presumption in the McDonnell Douglas framework, recognizing that in the more general sense, "prima facie" is a phrase used to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. See Burdine, 450 U.S. at 254 n. 7; see also Askin v. Firestone Tire Rubber Co., 600 F. Supp. 751, 755 (D. Ky. 1985) ("Even though the prima facie case may have been enough to shift the burden of production to the defendant, it is not necessarily enough to entitle the plaintiff to submit his or her case to the jury.").
Section 1982 "prohibits `all racial discrimination, private as well as public,' with respect to property rights." Evans v. Tubbe, 657 F.2d 661, 663 n. 2 (5th Cir. Unit A Sept. 1981) (quoting Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968)). "To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Moore v. Dallas Indep. Sch. Dist., 557 F.Supp.2d 755, 761 (N.D. Tex. 2008) (Fitzwater, C.J.) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)), aff'd, 370 Fed. Appx. 455 (5th Cir. 2010). ICP alleges that defendants have violated the Equal Protection Clause of the Fourteenth Amendment, which prohibits intentional racial segregation in government-assisted housing. See, e.g., Banks v. Dallas Hous. Auth., 119 F.Supp.2d 636, 638 n. 3 (N.D. Tex. 2000) (Kaplan, J.).
To prove claims under § 1982 and the Equal Protection Clause, ICP must demonstrate discriminatory intent, not merely discriminatory effect. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S 188, 195 (2003) (quoting Vill. of Arlington Heights, 429 U.S. at 265 ("Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.")); see also Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986) (noting that although FHA claim requires only showing of discriminatory effect, § 1982 claim requires finding of intentional racial discrimination); Dews, 109 F.Supp.2d at 570 ("In contrast to claims brought under the [FHA], plaintiffs suing under §§ 1981, 1982, 1983 and 2000d must prove discriminatory intent.").
ICP need only present enough evidence to give rise to an inference of discrimination. See Kennedy v. City of Zanesville, 505 F.Supp.2d 456, 493 (S.D. Ohio 2007). The prima facie case is not inflexible, and the specific facts required to be proved may vary depending on the factual situation. See id. at 493-94. "It is relatively easy . . . for a plaintiff to establish a prima facie case[.] Arbor Bend, 2005 WL 548104, at *7 (quoting Britt v. Grocers Supply Co., 978 F.2d 1441, 1450 (5th Cir. 1992)).
When a summary judgment motion on a discrimination claim is evaluated in the McDonnell Douglas framework, summary judgment is most appropriate at the pretext stage, not when addressing the plaintiff's prima facie case or the defendant's burden of producing evidence of a legitimate, nondiscriminatory reason. See Arbor Bend, 2005 WL 548104, at *7. It is thus relatively easy for ICP to establish a prima facie case and for TDHCA to meet its burden of production. See id.
F
ICP has presented enough evidence to give rise to an inference that TDHCA discriminated on the basis of race. Evidence that may give rise to an inference of discrimination includes statistical proof, comparative evidence, proof of a suspect sequence of events, or evidence of a subjective decisionmaking process. See Kennedy, 505 F.Supp.2d at 493-94.
First, ICP has presented statistical and comparative evidence that may give rise to an inference of discriminatory intent. ICP alleges that TDHCA is more likely to approve LIHTC developments in Caucasian neighborhoods if the likely tenants are Caucasian. ICP highlights the fact that, in Caucasian neighborhoods, elderly LIHTC housing is approved more often than non-elderly LIHTC housing, and elderly residents are more likely to be Caucasian. According to TDHCA data, from 1999 to 2008, TDHCA approved tax credits for 70.2% of the proposed elderly units in 90% or greater Caucasian census tracts. TDHCA approved just 37.4% of proposed non-elderly units in the same tracts.
ICP also presents evidence of a suspect sequence of events, and that TDHCA employs a subjective decisionmaking process. ICP relies on evidence that, from 1991-1993, TDHCA considered as one of its LIHTC selection criteria whether a development would provide desegregated housing opportunities. In 1994, TDHCA eliminated this criterion despite the concern about segregation in Dallas housing widely noted at the time due to the contemporaneous Dallas housing desegregation case. See Walker v. City of Mesquite, No. 3:85-CV-1210-R (N.D. Tex. Filed June 25, 1985) (Buchmeyer, C.J.). ICP suggests that the "repeal" of TDHCA's written desegregation preference in favor of TDHCA's discretion is related directly to TDHCA's intentional discrimination. P. Oct. 22, 2009 Br. 18.
For direct evidence of intent, ICP relies on contemporary statements made by TDHCA officials in board meetings as indications that race influenced defendants' actions. For example, at a February 2003 board meeting, TDHCA board member Shadrick Bogany ("Bogany") stated: "I'm tired of [these projects] being put in minority communities all the time." P. Oct. 2, 2009 App. 871. Later in the board meeting, he repeated, "And you know, it's just — it's amazing to me how we constantly concentrate these all over — in just the minority communities." Id. at 873. Bogany also protested at a later meeting that the board was creating a "tax-credit city" in a minority neighborhood in Houston. He argued that the TDHCA should not approve a proposed development because the minority neighborhood already contained 17 LIHTC developments, and that the next QAP needed to address the concentration issue. He pointed to the underdevelopment and lack of retail in the area, and noted that the city representatives arguing for the development were not from the area. "[C]ontemporary statements by members of the decisionmaking body, minutes of its meetings, or reports" may be "highly relevant" in establishing discriminatory intent. Vill. of Arlington Heights, 429 U.S. at 267-68. Although Bogany's statements are not admissions of racial discrimination, the totality of the evidence presented by ICP gives rise to an inference of discriminatory intent.
ICP points to other statements by board members, but the court's review indicates that they refer to the over-saturation of LIHTC units in some areas in Dallas; they express no concern that is specific to minority areas.
The court holds that ICP has presented enough evidence to establish beyond peradventure an inference of discriminatory intent. The court thus grants ICP summary judgment as to its prima facie case under §§ 1982 and 1983.
V
The court now turns to the remaining parts of defendants' Rule 12(c) motion and motion for summary judgment.
A
In their Rule 12(c) motion and motion for summary judgment, defendants request that the court hold that there is no genuine issue of material fact that their actions serve a compelling government interest, as required for ICP's FHA claim, and that ICP has presented no evidence that defendants' actions are pretextual, as required for ICP's §§ 1982 and 1983 claims. Because, as explained below, the court holds that there are genuine issues of material fact as to whether defendants' reason is pretextual and as to whether TDHCA's actions serve a compelling government interest, the court denies defendants' Rule 12(c) motion for judgment on the pleadings. The court must go beyond the pleadings and consider the evidence. The court will, however, consider defendants' arguments made in support of their Rule 12(c) motion in deciding their summary judgment motion.
Although defendants' motion for summary judgment is styled a "no evidence" motion, under the applicable law, once ICP demonstrated a prima facie case of discrimination, the burden shifted to defendants to prove that their actions serve a compelling government interest. See AHF Cmty. Dev., LLC v. City of Dallas, 633 F.Supp.2d 287, 304 (N.D. Tex. 2009) (Fitzwater, C.J.). Therefore, to be entitled to summary judgment as to ICP's FHA claim, defendants must establish beyond peradventure that their actions further a compelling government interest.
B
The court considers first defendants' motion for summary judgment as to ICP's FHA claim. Because ICP has established its prima facie case of discriminatory impact under the FHA, the burden shifts to defendants to prove that TDHCA's actions were in furtherance of a compelling government interest. See AHF Cmty. Dev., LLC v. City of Dallas, 633 F.Supp.2d 287, 304 (N.D. Tex. 2009) (Fitzwater, C.J.); see also Arbor Bend, 2005 WL 548104, at *12; Huntington Branch, 844 F.2d at 939. This interest must be bona fide and legitimate, and there must be no less discriminatory alternatives. See Huntington Branch, 844 F.2d at 939 (holding that "[t]he McDonnell Douglas test, however, is an intent-based standard for disparate treatment cases inapposite to the disparate impact claim asserted here. No circuit, in an impact case, has required plaintiffs to prove that defendants' justifications were pretextual.").
Defendants concede for purposes of their summary judgment motion that ICP has established a prima facie case, and they maintain that their actions further a compelling government interest. Defendants argue that the concentration of LIHTC developments in inner-city areas serves a compelling government interest; that 26 U.S.C. § 42, the statute that establishes low-income housing tax credits, compels defendants to locate developments in the most impoverished areas; that it is impossible for defendants to comply with § 42 and achieve ICP's request that 50% of LIHTC developments be located in the suburbs; and that to the extent they conflict, § 42 controls over the FHA and § 1982.
To determine whether defendants' justification rises to the level of a compelling government interest, the court will consider "(1) whether [TDHCA's actions] in fact further[] the governmental interest asserted; (2) whether the public interest served by [TDHCA's actions] is constitutionally permissible and is substantial enough to outweigh the private detriment caused by it; and (3) whether less drastic means are available whereby the stated governmental interest may be attained." See Arbor Bend, 2005 WL 548104, at *12 (internal quotation marks omitted). The court holds
that TDHCA has not established beyond peradventure that its actions furthered a compelling government interest.
Defendants have failed to establish that TDHCA cannot comply with § 42 in a way that has less discriminatory impact on the community. They offer as their justification TDHCA's compliance with § 42(m)(1)(B)(ii), which provides that a qualified allocation plan gives preference to projects serving lowest-income tenants and projects that are located in qualified census tracts (areas designated by HUD as low-income). Defendants have failed to establish without genuine dispute that TDHCA cannot comply with both § 42 and the FHA. Defendants in fact acknowledge that there is no conflict between § 42 and the FHA. The court therefore denies defendants' motion for summary judgment as to ICP's FHA claim. See, e.g., Huntington Branch, 844 F.2d at 941 (holding that defendant town violated the FHA, reversing district court, and entering judgment for plaintiff NAACP).
In Arbor Bend the plaintiff housing development filed an application with the defendant housing finance corporation seeking to become a participant in a tax-credit low-income housing program. Arbor Bend, 2005 WL 548104, at *1. The defendant denied the plaintiff's application for funding. See id. at *3. The plaintiff sued, alleging that the defendant's decision not to fund the development was motivated by race and familial status of the likely tenants. See id. The court held that, regardless of the plaintiff's establishment of a prima facie case of discrimination, the defendant's actions furthered the compelling government interest of not increasing the burden on already-overcrowded schools in the area. See id. at *12. The court thus granted defendant's motion for summary judgment. See id. at *17.
But in Dews Chief Judge Buchmeyer held that the defendant town's justifications for its zoning plan, which had a discriminatory effect, were not bona fide, legitimate, or the least discriminatory means of accomplishing zoning objectives. Dews, 109 F.Supp.2d at 568-69. The defendant maintained that its "one-unit-per-acre" zoning was necessary to protect public health and comply with regional obligations of environmental protection, transportation, air quality, and agricultural protection. See id. Chief Judge Buchmeyer found that this justification was pretextual and that less discriminatory zoning plans were available. See id. He held that the plaintiff had established liability under the FHA. See id. at 569.
C
The court now considers defendants' motion for summary judgment as to ICP's §§ 1982 and 1983 claims. Because ICP has established its prima facie case of discriminatory effect under McDonnell Douglas, the burden shifts to defendants to articulate a legitimate, nondiscriminatory reason for their actions. See St. Mary's Honor Ctr., 509 U.S. at 506-07 (addressing racial discrimination claim under Title VII). Defendants' burden is one of production, not proof, and involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) (age discrimination case). "It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant[s], `[t]he ultimate burden of persuading the trier of fact that the defendant[s] intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr., 509 U.S. at 507 (quoting Burdine, 450 U.S. at 253) (emphasis in original); see also Simms v. First Gibraltar Bank, 83 F.3d 1546,
1559 (5th Cir. 1996) (holding that plaintiff did not present sufficient evidence of discrimination to find a violation of the FHA). "It is relatively easy . . . for a defendant to articulate a legitimate, non-discriminatory reason for his decision." Arbor Bend, 2005 WL 548104, at *7 (quoting Britt, 978 F.2d at 1450).
Once defendants have produced a nondiscriminatory reason, the burden shifts back to ICP to prove that defendants' proffered reason is pretextual, which is circumstantial evidence of discrimination. See West, 330 F.3d at 385 ("It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." (internal quotation marks omitted)); St. Mary's Honor Ctr., 509 U.S. at 511 (Title VII case) (holding that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . . But the [appellate court's] holding that rejection of the defendant's proffered reasons compels judgment for the plaintiff" is incorrect). "[P]laintiffs must present evidence that would allow a rational factfinder to make a reasonable inference that race was a determinative reason for the housing decision." Jim Sowell Constr. Co. v. City of Coppell, 61 F.Supp.2d 542, 546 (N.D. Tex. 1999) (Fitzwater, J.) (citing Simms, 83 F.3d at 1556). But the Supreme Court has held that "discrimination may well be the most likely alternative explanation" for defendants' actions once the plaintiff offers evidence that defendants' reason is pretextual. See Reeves, 530 U.S. at 148 ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."); see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). The Court cautioned, however, that there are instances where although plaintiff has established a prima facie case of discrimination and offered evidence that defendants' justification is false, no rational factfinder could conclude that defendants' actions were discriminatory. See Reeves, 530 U.S. at 148.
D
Defendants offer a nondiscriminatory reason for their actions by pointing to the statute establishing low-income housing tax credits, 26 U.S.C. § 42. They argue that the statute specifically encourages awarding tax credits to developments in the most impoverished neighborhoods, which are often minority areas. In other words, they maintain that the concentration of LIHTC units in minority areas is the direct result of the mandate of § 42, which requires that defendants give preference to developments "serving the lowest income tenants" and "located in `qualified census tracts.'" Ds. Oct. 2, 2009 Br. 13. Because defendants have produced a nondiscriminatory reason for their actions, the court need not make any credibility assessment of this proffered reason at this time. See Kretchmer v. Eveden, Inc., 374 Fed. Appx. 493, 495 (5th Cir. 2010) (per curiam). The court holds that defendants have met their burden of production as to the second step of McDonnell Douglas.
See also supra § V(B).
Defendants suggest that this case should be resolved under principles of statutory construction. Because they maintain that they are simply following the mandates of § 42, they argue that their actions must be legal, even if they violate the FHA or § 1982, because § 42 is the most recent and specific statute. The court declines to evaluate this case on this basis.
First, ICP alleges violations of statutes and of the Fourteenth Amendment. Second, the FHA, § 1982, and § 42 are not in direct tension, and it is not clear that TDHCA could not comply with the three statutes. Nothing in § 42 requires that entities like TDHCA act in a discriminatory manner or in violation of the FHA or § 1982. "The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551 (1974). Therefore, the jury must decide whether defendants' actions violated the FHA, § 1982, and § 1983, even if they demonstrate that TDHCA followed § 42.
In particular, §§ 42(d)(5)(B)(i) and (ii) specifically allow a proposed development in a "qualified census tract" (a low-income area) to receive 130% of the tax credits a LIHTC development not in such an area would receive.
E
The court now turns to the third step and holds that ICP has presented sufficient evidence that defendants' proffered reason is pretextual to require a trial. See, e.g., Britt, 978 F.2d at 1450 (age discrimination case) ("In the context of summary judgment . . ., the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext."). The following examples are illustrative.
When this court denies rather than grants summary judgment, it typically does not set out in detail the evidence that creates a genuine issue of material fact. See, e.g., Swicegood v. Med. Protective Co., 2003 WL 22234928, at *17 n. 25 (N.D. Tex. Sept. 19, 2003) (Fitzwater, J.).
First, ICP has produced evidence that only 34% of all LIHTC units are in qualified census tracts, and that only 39.8% of all LIHTC units in qualified census tracts received the 130% bonus. Under TDHCA's QAP, applications are awarded points if they meet desirable selection criteria, and can receive over 200 points. See 10 Tex. Admin. Code § 50.9. A proposed location in a qualified census tract earns an application just one point, equal to the bonus given to developments with a gazebo. See 10 Tex. Admin. Code §§ 50.9(i)(25) and (h)(4)(A)(ii)(III). Thus ICP has presented evidence that TDHCA's primary justification, that its actions are required by § 42, is relevant to only 34% of TDHCA's developments.
Second, ICP points again to the evidence of discriminatory intent discussed supra at § IV(F). Circumstantial evidence of discriminatory intent allows a jury to make a reasonable inference that race was a determinative reason for the housing decision. See Vill. of Arlington Heights, 429 U.S. at 266-68; Jim Sowell Constr. Co., 61 F.Supp.2d at 546-47 (listing non-exhaustive guiding factors, including (1) the discriminatory effect of the official action, (2) the historical background of the decision, (3) the specific sequence of events leading up to the challenged decision, (4) departures from the normal procedure, (5) departures from the normal substantive factors, and (6) the legislative or administrative history of the decision). ICP has presented evidence of the discriminatory effect of TDHCA's tax credit allocation. ICP has also produced minutes from TDHCA board meetings in which tax credits for minority-area developments were approved even though the areas had a high concentration of low-income housing developments and despite some board members' objections.
Considering all of this evidence together, the court holds that ICP has raised a genuine issue of material fact as to the pretextual nature of defendants' proferred justification. ICP has presented some evidence that defendants' QAP and actual practices do not corroborate their contention that building in qualified census tracts is a true priority. Instead, the disproportionate approval of units in Caucasian areas when the likely tenants are Caucasian allows a reasonable jury to infer that defendants' reason is pretextual. Because there are genuine issues of material fact, the court denies defendants' motion for summary judgment as to ICP's §§ 1982 and 1983 claims.
* * *
ICP's October 2, 2009 motion for partial summary judgment is granted. Defendants' October 2, 2009 motion for judgment on the pleadings and their October 2, 2009 motion for summary judgment are denied. ICP's November 9, 2009 motion for leave to file supplemental appendix is denied as moot.
SO ORDERED.
September 28, 2010.
/oglesby-v-us-dept-of-army#p67920 F.2d at 67 n. 13 (citing
Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986));
Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). The agency need not search every record in the system or conduct a perfect search.
SafeCard Servs., Inc. v. Sec. Exch. Comm'n, 926 F.2d 1197, 1201 (D.C. Cir. 1991);
Meeropol, 790 F.2d at 952, 956. Nor need the agency produce a document if "the agency is no longer in possession of the document [] for [a] reason that is not itself suspect."
SafeCard Servs., 926 F.2d at 1201.
Instead, to demonstrate reasonableness, the agency must set forth sufficient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id. If the record raises substantial doubts regarding the agency's efforts, "particularly in view of well defined requests and positive indications of overlooked materials," summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326 (internal quotations and citations omitted).
b. The Defendant's Search Was Reasonable
The CIA asserts that its search was reasonably calculated to uncover all relevant documents responsive to the plaintiff's amended FOIA request. Def.'s Mot. at 6. The plaintiff counters that the CIA's search was inadequate as evidenced by its failure to disclose certain documents that had been made available to the plaintiff by the Department of State and which, according to the plaintiff, "were sent by the Department of State to CIA." Pl.'s Opp'n at 3. The plaintiff argues that the availability of the Department of State's documents, as well as "the fact that it took action by a federal court to force [the] CIA to produce any response to plaintiff's request," demonstrates that the CIA's bad faith. Id. at 3 n. 2. Finally, the plaintiff accuses the CIA of unilaterally narrowing his request, i.e. the plaintiff sought "documents" and alleges the CIA searched only for "reports." Id. at 3. Although the plaintiff acknowledges that he accepted the amended request, he argues that at the time "he understood [it] to be a narrowing quite different than the eviscerating construction now advanced." Id. at 4.
In its reply, the CIA argues that the plaintiff "agreed to narrow the scope of his FOIA request such that it plainly covers only records that originate with the CIA," and that pursuant to this narrower request, the CIA searched only CIA reports. Def.'s Reply at 4. Thus, the CIA concludes that the non-production of Department of State records does not "impugn the adequacy of the CIA's search." Id. at 5.
As a preliminary matter, the court must decide whether the plaintiff's initial or amended FOIA request is controlling. An agency can ask a FOIA requestor to clarify or narrow an overly broad request. See Nation Magazine, 71 F.3d at 891-92 (holding that an agency is not required to undertake a search that is so broad as to be unduly burdensome); Kenney v. U.S. Dep't of Justice, 603 F. Supp. 2d 184, 188 (D.D.C. 2009) (noting that an agency can ask a requester to clarify the scope of a FOIA request "where a request is not specific enough to allow `a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort'" (quoting Dale v. Internal Revenue Servs., 238 F. Supp. 2d 99, 104 (D.D.C. 2002))).
Here, the CIA explained to the plaintiff that it "could not process the first part of [his] request — [seeking] CIA documents about events in Andijan, Uzbekistan, from 2004-2006 — as presented, given its lack of specificity." Def.'s Mot., Ex. B. (emphasis added). The CIA offered, however, to search for the second part of the plaintiff's initial request, seeking "CIA reports relating to the violence of May 2005 and its aftermath, as well as subsequent trials and evaluation of refugees." Id. (emphasis added). The plaintiff, despite his demonstrated ability to utilize the CIA's administrative appeal process, accepted the CIA's offer to search for the documents responsive to the narrowed request. Def.'s Mot., Ex. C.; see also Am. Comp. ¶ 8. Had the plaintiff, as he now claims, wanted more than just "CIA reports," he was entitled to reject the CIA's offer and appeal its decision to reject his initial FOIA request. See Wilson v. U.S. Dep't of Transp., 2010 WL 3184300, at *10 (D.D.C. Aug. 11, 2010) (holding that the plaintiff, who agreed to narrow his FOIA request "cannot now argue that he meant something else"); Kenney, 603 F. Supp. 2d at 189 (D.D.C. 2009) (stating that the "[p]laintiff cannot allege that the agency failed to produce responsive records, when the records he now identifies falls outside the scope of his appropriately narrowed request"). Thus, the court is not persuaded that the CIA unilaterally "rewrote" and "twisted" the plaintiff's request and will, accordingly, refer to the amended FOIA request in evaluating whether the defendant's search was reasonable.
The court determines whether the CIA's search for documents was adequate by evaluating "the reasonableness of the [the agency's] effort in light of the specific request.'" Larson v. U.S. Dep't of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (quoting Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 956 (D.C. Cir. 1986) (emphasis added)). The CIA was "not obliged to look beyond the four corners of the request for leads to the location of responsive documents." Kowalczyk v. U.S. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); but cf. Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (requiring that an agency expand the scope of its search if during the search the agency discovers information suggesting the existence of documents elsewhere). The CIA's failure, moreover, to produce a particular document does not necessarily undermine the adequacy of a search. Lasko v. U.S. Dep't of Justice, 2010 WL 3521595, at *1 (D.C. Cir. Sept. 3, 2010) (holding that the failure to produce particular documents does not undermine the adequacy of a search (citing Wilbur v. Cent. Intelligence Agency, 355 F.3d 675, 678 (D.C. Cir. 2004))).
Here, the CIA construed the plaintiff's request for "CIA reports" as a request for "records that originate with the CIA." Def.'s Reply at 4. This interpretation was reasonable under the circumstances. The plaintiff's initial request for "information or records on all CIA documents . . . including any CIA reports" indicates that the plaintiff was mindful to distinguish between records and reports. See Am. Compl. ¶ 6. Nonetheless, the plaintiff agreed to limit the scope of the search from "information or records on all CIA documents" to "CIA reports." See Def.'s Mot., Ex. C. Both the "four corners of the [amended] request" and the plaintiff's demonstrated understanding as to the distinction between reports and records, support the conclusion that the CIA reasonably interpreted the plaintiff's amended request as one for "records that originate with the CIA" and not for all agency records. See Kowalczyk, 73 F.3d at 389 (declining to interpret a request as requiring all agency records where the plaintiff had not "clearly state[d] that he want[ed] all agency records on [the] subject, i.e. regardless of their location," and the agency had reasonably interpreted the request to be for records in a specific office); id. (noting that an "agency may reasonably interpret a request to be for records in a specific office," and "upon discovering that it has other responsive records elsewhere, it may reasonably infer that the requester already has those records, is seeking them through a separate request, or, for whatever reason, does not want them"). The court, moreover, recognizes that it has the statutory authority to enjoin agencies "from withholding agency records," 5 U.S.C. § 552(a)(4)(B), and that the Department of State documents obtained by the CIA are considered the CIA's "agency records." McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1109 (D.C. Cir. 1983). As discussed, however, the plaintiff here does not request the CIA's agency "records," instead limiting his request to CIA "reports." Thus, the court concludes that the defendant reasonably construed the plaintiff's amended request and that the CIA's nondisclosure of the Department of State documents is neither a "positive indication of overlooked materials" nor evidence of bad faith. Cf. Valencia-Lucena, 180 F.3d at 326 (stating that summary judgment was not appropriate where the reasonableness of the agency's search was in doubt "particularly in view of well defined requests and positive indications of overlooked materials" (internal quotations and citations omitted)).
Indeed, here it was plainly reasonably for the CIA to infer that the plaintiff was seeking the Department of State records through a separate request because the plaintiff did, in fact, make such a separate request. Pl.'s Opp'n at 3.
The plaintiff's argument that the CIA's bad faith is evidenced by "the fact that it took action by a federal court to force [it] to produce any response to plaintiff's request," Pl.'s Opp'n at 3 n. 2., also lacks merit. The CIA states that it "accepted the [plaintiff's] modified request on 14 January 2009, completed a search, and mailed a letter to the [p]laintiff notifying him of the results on 24 March 2009." 1st Dimaio Decl. ¶ 5. "[I]nitial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later affidavits by the agency." Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citing Meeropol, 790 F.2d at 952 (D.C. Cir. 1986)); Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 772 (D.C. Cir. 1981); see also Goland v. Cent. Intelligence Agency, 607 F.2d 339, 355 (D.C. Cir. 1978) (stating that "in view of the well-publicized problems created by the statute's . . . time limits for processing FOIA requests and appeals, the CIA's delay alone cannot be said to indicate an absence of good faith"); Am. Fed'n of Gov't Emp.v. Broad. Bd. of Governors, 2010 WL 1976747, at *7 (D.D.C. May 18, 2010) (rejecting "the plaintiffs' arguments that defendant's failure to produce any documents until after litigation commenced is evidence of bad faith or an inadequate search"). The court notes that approximately ten months elapsed between when the plaintiff claims to have submitted his amended request to the CIA in March 2008, and when this court ordered this case stayed as requested by the parties' joint motion in January 2009. See generally Joint Mot. to Stay. In March 2009, three months after the parties requested a stay, the CIA provided the plaintiff with a final response. Def.'s Mot., Ex. B. Neither the ten month period from when the plaintiff's submitted his amended request to the stay of judicial proceedings nor the three month period that the CIA took to produce a response are alone sufficient to indicate that the defendant acted in bad faith. See Iturralde, 315 F.3d at 315.
Due to the large volumes of requests submitted to federal agencies, "FOIA itself explicitly contemplates the possibility of a stay at judicial proceedings at the district court level." Electronic Privacy Info. Ctr. v. U.S. Dept. of Justice, 2005 U.S. Dist. LEXIS 18876, at *7 (D.D.C. Aug. 31, 2005).
Having concluded that neither bad faith nor contradictory evidence is present, the court need not question the veracity of the classified declaration, including the details concerning the adequacy of the search provided therein. See Hayden, 608 F.2d at 1386 (holding that a district court need not inquire into the veracity of a classified affidavit unless the information it provides is insufficient or contradicted by the record, or there is evidence of bad faith on behalf of the agency). The CIA's classified affidavit, moreover, has provided sufficient details and facts to support that its search was reasonable under the amended request. See generally Classified Dimaio Decl.; see also Nation Magazine, 71 F.3d at 890 (requiring that an agency's affidavit set forth sufficient information for the court to determine whether a search is reasonable (citing Oglesby, 920 F.2d at 68)); cf. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (holding that an agency declaration was insufficient because it provided only "a general explanation of how the agency responds to all FOIA requests" and did not "`identify[] the terms searched or explain[] how the search was conducted'" (quoting Oglesby, 920 F.2d at 68)). Accordingly, the court concludes that the CIA has demonstrated "beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine, 71 F.3d 885, 890 (D.C. Cir. 1995).
3. Exemption 1 a. Legal Standard for Exemption 1 Withholding
Exemption 1 of FOIA exempts from mandatory disclosure matters that are (1) "specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy" and (2) "are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Information "must be classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms" in order to be properly withheld under Exemption 1. Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980). Under Executive Order 12,958, an agency may not authorize information to be kept secret unless, inter alia, the "disclosure of the information reasonably could be expected to result in damage to the national security." Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr.
17, 1995). An agency that withholds information pursuant to this exemption bears the burden of justifying its decision. King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) (citing 5 U.S.C. § 552(a)(4)(B)).
Courts review challenges to an agency's decision to withhold information de novo. King, 830 F.2d at 217; 5 U.S.C. § 552(a)(4)(B). The court should conduct an in camera review of the withheld information if the agency's affidavits are insufficient to make the de novo determination. Hayden, 608 F.2d 1381, 1384-88 (D.C. Cir. 1979). In reviewing an agency's invocation of an exemption, the court must consider that in enacting FOIA, Congress aimed to strike a balance "between the right of the public to know what their government is up to and the often compelling interest that the government maintains in keeping certain information private, whether to protect particular individuals or the national interest as a whole." American Civil Liberties Union v. U.S. Dep't of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989)).
The court is to "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Military Audit Project, 656 F.2d at 738 (deferring to the agency's assertions in holding that the information could cause serious damage to the national security); see also Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982). This is especially true "in a national security case, in which the agency possesses necessary expertise to assess the risk of disclosure," Schlesinger v. Cent. Intelligence Agency, 591 F. Supp. 60, 67 (D.D.C. 1984), and judges "lack the expertise necessary to second-guess . . . agency opinions," Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C. Cir. 1980) (deferring to the agency's opinion and holding that certain CIA affidavits provided ample evidence to show potential harm under a limited de novo review). If the court finds that the agency's affidavits are insufficiently detailed, it should deny summary judgment. Campbell, 164 F.3d at 31 (remanding to the district court to allow the FBI to further "justify" its Exemption 1 claim because its declaration failed to "draw any connection between the documents at issue and the general standards that govern the national security exemption"), remanded to 193 F. Supp. 2d 29, 38 (D.D.C. 2001) (holding that a declaration was insufficient by merely concluding, without further elaboration, that "disclosure of [the] information could reasonably be expected to cause serious damage to national security"); Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1180 (D.C. Cir. 1996) (rejecting certain Vaughn indices as insufficient because agencies must itemize each document and adequately explain "the connection between the information withheld and the exemption claimed"); Oglesby, 920 F.2d at 66 n. 12 (noting the detail required in public Vaughn affidavits, especially in regard to an agency's obligation to segregate and release nonexempt material).
b. The Defendant Properly Invoked Exemption 1
The defendant argues that it justifiably withheld information pursuant to Exemption 1 because it followed the procedural and substantive requirements set forth in Executive Order 12,958. Def.'s Mot. at 6-8. The plaintiff counters that "there are myriad documents almost certainly in the CIA's possession, such as translation of public trials held in the aftermath of the violence and translations of local media reports of the violence and ensuing trials, which are not rightly classified." Pl.'s Opp'n at 4.
The court has reviewed the classified and unclassified declarations to determine whether the CIA satisfied the procedural and substantive requirements in withholding the information under Exemption 1. Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (noting that proper classification requires that both procedural and substantive requirements be met). Procedurally, the unclassified declaration demonstrates that the classification of withheld information has met the conditions outlined under Section 1.2(a) of the Executive Order. 1st Dimaio Decl. ¶ 14. More specifically, the defendant determined that (1) the withheld information is classified by "an original classified authority," (2) the withheld information is owned by, produced by, and under the control of the U.S. Government, (3) the withheld information "falls within one or more of the categories in Section 1.4 of Executive Order 12958, and (4) disclosure of the withheld information "reasonably could be expected to result in damage to the national security." Id. ¶¶ 9, 14-16; see 5 U.S.C. § 552(b)(1). Thus, the court concludes that the CIA has met the procedural requirements needed to invoke Exemption 1.
Substantively, the CIA's classified declaration describes in sufficient detail why the withheld information "logically falls" within one of the classification categories outlined in Section 1.4 of Executive Order. Hayden, 608 F.2d at 1387; see generally Classified Dimaio Decl. The court need not inquire "further into [the classified declaration's] veracity," having already determined that neither contradictory evidence nor bad faith was present. See supra Part III.B.2.b; Hayden, 608 F.2d at 1387 (holding that the veracity of an agency's affidavit need not be questioned if no bad faith or contradictory evidence is found).
Although the plaintiff contends the CIA erred in classifying certain public documents or documents relating to public events, he only provides a broad and speculative claim that "myriad documents" exist which he believes should not be classified. Pl.'s Opp'n at 4. Such "purely speculative claims about the existence and discoverability of other documents" are insufficient to show that the CIA has incorrectly withheld classified information. See SafeCard Servs., Inc., 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court, moreover, is required to defer to the CIA's judgment with regard to the reasonable expectation that the disclosure of the withheld information, even "seemingly innocent information" that has "already been made public," could result in damage to the national security. See Phillippi v. Cent. Intelligence Agency, 655 F.2d 1325, 1330 (D.C. Cir. 1981) (declining to hold that "revelation of seemingly innocent information . . . is required under FOIA" because the information had already been made public and deferring instead to "the well-documented and specific affidavits of the CIA to the contrary"); Military Audit Project, 656 F.2d at 738 (rejecting the argument that "an agency's rationale for nondisclosure is inherently implausible simply because the information at issue might already be a matter of public knowledge"). Thus, the court is not persuaded by the plaintiff's claim that public information was improperly classified. Accordingly, the court concludes that the CIA has met both the procedural and substantive requirements of 5 U.S.C. § 522(b) (1) and properly invoked Exemption 1.
The defendant also invokes Exemption 3, codified at 5 U.S.C. § 552(b)(3), as a basis for withholding information in response to the plaintiff's amended request. Def.'s Mot. at 9. Because the CIA seeks to withhold the same information under both Exemption 1 and Exemption 3, see id., and because the defendant has properly invoked Exemption 1, the court does not consider whether the defendant properly invoked Exemption 3.
4. The Defendant Has Satisfied the Segregability Requirement a. Legal Standard for Segregability Requirement
FOIA mandates that "any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). By 1977, it had "long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). The D.C. Circuit has made clear that "the `segregability' requirement applies to all documents and all exemptions in the FOIA." Center for Auto Safety v. U.S. Envtl. Prot. Agency, 731 F.2d 16, 21 (D.C. Cir. 1984). In fact, the segregability requirement is so essential to a FOIA inquiry that "it is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof." Schiller v. Nat'l Labor Relations Bd., 964 F.2d 1205, 1210 (D.C. Cir. 1992) (quoting Church of Scientology v. U.S. Dep't of Army, 611 F.2d 738, 744 (9th Cir. 1979).
To demonstrate that the withholding agency has disclosed all reasonably segregable material, "the withholding agency must supply a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." King v. U.S. Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (internal quotations omitted). The agency, however, is not required to provide so much detail that the exempt material effectively would be disclosed. Mead Data, 566 F.2d at 261. Furthermore, conclusory language in agency declarations that do not provide a specific basis for segregability findings by a district court may be found inadequate. Animal Legal Def. Fund, Inc. v. U.S. Dep't of Air Force, 44 F. Supp. 2d 295, 301 (D.D.C. 1999). The Circuit, though expressly disclaiming any attempt to provide "an encompassing definition of `conclusory assertions,'" noted that "it is enough that where no factual support is provided for an essential element of the claimed privilege or shield, the label `conclusory' is surely apt." Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987).
b. The Agency Properly Segregated Exempt Material from Non-Exempt Material
The defendant argues that that the withheld information "is not appropriate for segregation and disclosure" because
[t]o disclose [even] the amount of [responsive] material . . . or the date(s) of the [responsive], would reveal sensitive information. The disclosure of such
seemingly innocuous information would reveal, among other things, the nature and extent of the CIA's interest in, and/or its ability to gather information regarding, the subjects of Plaintiff's FOIA request.
Def.'s Mot. at 11 (quoting 1st Dimaio Decl. ¶ 22 (alterations in original)). The defendant provides additional explanations for the sensitivity of this information in Dimaio's classified declaration. See generally Classified Dimaio Decl. The plaintiff counters that he "has sufficient evidence to show that [the d]efendant . . . did not attempt to segregate exempt from non-exempt materials," referring to the Department of State documents discussed above. Pl.'s Opp'n at 3; see also supra Part III.B.2.b (discussing Department of State documents).
As a preliminary matter, the court has already concluded that the Department of State documents did not fall in the scope of the plaintiff's amended FOIA request. See supra Part III.B.2.b. Therefore, contrary to the plaintiff's position, the Department of State documents are not evidence that would demonstrate that the defendant "did not attempt to segregate exempt from non-exempt materials." See Pl.'s Opp'n at 3.
The court must decide, nonetheless, whether the defendant was justified in not providing any materials in response to the amended request. Morley, 508 F.3d at 1123 (stating that the court has an affirmative duty to consider whether an agency has released all reasonably segregable information). Ordinarily, an agency correlates each exemption it claims with a particular portion of the document to which the exemption applies. Hall v. Cent. Intelligence Agency, 668 F. Supp. 2d 172 (citing Schiller, 964 F.2d at 1209-10). Here, however, the defendant states that giving any information regarding the results of its search, including
even the number of CIA originated records responsive to the Plaintiff's FOIA request . . . [or] whether the CIA located one or more than one record . . . would reveal the extent to which the CIA collected or did not collect information and/or prepared or did not prepare analysis on the events that are the subject of the Plaintiff's FOIA request, which in turn would reveal sensitive intelligence capabilities and interests (or lack thereof).
1st Dimaio Decl. ¶ 8. The classified declaration provides further details as to why the CIA cannot segregate portions of the responsive records. See generally Classified Dimaio Decl.
This Circuit has acknowledged that individual pieces of intelligence information, "much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance itself." Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 763 (D.C. Cir. 1990) (citing Gardels v. Cent. Intelligence Agency, 689 F.2d 1100, 1106 (D.C. Cir. 1982). Through its unclassified and classified declarations, the defendant provides a sufficiently detailed justification for the defendant's determination that there is no segregable material because all of the information is exempt. 1st Dimaio Decl. ¶¶ 8-10; 2d Dimaio Decl. ¶¶ 3-4; See generally Classified Diamio Decl. Accordingly, the defendant has satisfied its burden of establishing that no portion of the withheld documents can be segregated and released to the plaintiff. Juarez, 518 F.3d at 61.
The court is also not required to inspect the withheld information in camera to determine the segregability of the requested information because "[t]he Agency's rationale for nondisclosure . . . applied to any and all information from the requested documents." Hayden, 608 F.2d at 1388.
5. Discovery is Not Warranted
The plaintiff requests discovery under Federal Rule of Civil Procedure Rule 56(f) arguing that discovery is necessary to so he can learn "why the CIA is treating Plaintiff's request differently than far more sensitive requests from others." Pl.'s Opp'n, Decl. of Pl.'s Counsel ¶ 3. Additionally, the plaintiff seeks to depose the CIA's declarant concerning
Under Rule 56(f), a court "may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion." Strang v. U.S. Arms Control Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981).
the basis for his personal knowledge as to the contents of his declaration, the CIA's construction of [the plaintiff's] request, the scope and steps taken to search
for documents by the defendant and the fact and extent of the CIA's possession of information from third parties that it has summarized and withheld, if any.
Id. ¶ 2. The defendant responds that discovery would be inappropriate because "the CIA has already provided the plaintiff with all of the information that it can . . . [and t]o provide any additional information would be to disclose classified information." Def.'s Reply at 6.
Generally, "[d]iscovery in FOIA is rare and should be denied where an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains." Schrecker v. Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff'd, 349 F.3d 657 (D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep't. of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (noting that "[d]iscovery is not favored in lawsuits under the FOIA"). Only if the agency has not undertaken an adequate search for responsive documents is discovery appropriate. Schrecker, 217 F. Supp. 2d at 35. Discovery is not warranted "when it appears that discovery would only . . . afford [the plaintiff] an opportunity to pursue a bare hope of falling upon something that might impugn the affidavits." Military Audit Project, 656 F.2d at 751-52 (internal quotations omitted); see also Broaddrick v. Executive Office of the President, 139 F. Supp. 2d 55, 63-64 (D.D.C. 2001). Where an agency's affidavits regarding its search are sufficient, the judge has broad discretion to forgo discovery. Meeropol, 790 F.2d at 960-61; see also Schleeper v. U.S. Dep't of Justice, 1999 WL 325515, at *1 (D.C. Cir. April 30, 1999) (per curiam) (upholding lower court's denial of discovery). Even if an agency's affidavits regarding its search are deficient, courts generally do not grant discovery but instead direct the agency to supplement its affidavits. Judicial Watch, 185 F. Supp. 2d at 65.
As has already been discussed, see supra Part III.B.2.b., the CIA did not act in bad faith. See Hall, 668 F. Supp. 2d 172, 196 (D.D.C. 2009) (denying discovery because the court could not infer from the record before it that the agency had acted in bad faith). Additionally, the plaintiff requests to depose the declarant to determine "the basis of his personal knowledge." Pl.'s Opp'n, Counsel Decl. ¶ 3. Ordinarily, however, a declarant who holds a supervisory position overseeing FOIA requests is deemed to have personal knowledge of a search. Carney v. U.S. Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating that "[a]n affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy [the personal knowledge requirement of Federal Rule of Civil Procedure] 56(e)"); see also Kay v. Fed. Commc'ns Comm'n, 976 F. Supp. 23, 34 n. 29 (D.D.C. 1997) (stating that "[g]enerally, declarations accounting for searches of documents that contain hearsay are acceptable"), aff'd, 172 F.3d 919 (D.C. Cir. 1998). Here, the declarant is the Information Review Officer for the National Clandestine Service of the CIA, 1st Unclassified Decl. ¶ 1, and thus, the court sees no reason for discovery to ascertain the declarant's personal knowledge of the search.
Lastly, the CIA has stated that "the only response [that it] can provide on the public record in this case is the general, `no number, no list' declaration," because revealing anything more "could reasonably be expected to cause serious damage to the national security." Def.'s Mot., 1st Dimaio Decl. ¶ 8. In such a situation, the court need only review the CIA's declaration, see Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir. 1974) (stating that "[w]hen the [a]gency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the [a]gency's refusal"), and if the court finds that "an agency's declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains," then discovery should be denied, Casillas v. U.S. Dep't of Justice, 672 F. Supp. 2d 45, 49 (D.D.C. 2009) (citing Schrecker v. Dep't of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002)). Accordingly, the court denies the plaintiff's request for discovery.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment and grants leave to the defendant to file in camera its Vaughn declaration. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 28th day of September, 2010.