                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                   )
NATIONAL COMMUNITY REINVESTMENT    )
COALITION,                         )
               Plaintiff,          )
                                   ) Civil Action No. 07-1357(EGS)
                v.                 )
                                   )
ACCREDITED HOME LENDERS HOLDING    )
COMPANY, et al.,                   )
                                   )
                Defendants.        )
                                   )

                          MEMORANDUM OPINION

     In an August 28, 2008 Memorandum Opinion, the Court rejected

defendants’ claim that “disparate impact claims are not

cognizable under the Fair Housing Act [“FHA,” 42 U.S.C. § 3601 et

seq].”   Nat’l Cmty. Reinvestment Coal. v. Accredited Home Lenders

Holding Co., 573 F. Supp. 2d 70, 77-78 (D.D.C. 2008).1     Rather,

the Court found that Smith v. City of Jackson, 544 U.S. 228

(2005), “does not preclude disparate impact claims pursuant to

the FHA.”   Nat’l Cmty., 575 F. Supp. 2d at 79.     The defendants

asks the Court to certify this issue for interlocutory appeal.

     In granting a request for an interlocutory appeal, a

district court must certify that the order involves “a

controlling question of law as to which there is substantial



     1
        For a short and succinct discussion of the background of
this case, see Nat’l Cmty., 575 F. Supp. 2d at 73.
                                1
ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of

the litigation.”    28 U.S.C. § 1292(b); see also Walsh v. Ford

Motor Co., 807 F.2d 1000, 1002 n.2 (D.C. Cir. 1986).   “A party

seeking certification pursuant to § 1292(b) must meet a high

standard to overcome the ‘strong congressional policy against

piecemeal reviews, and against obstructing or impeding an ongoing

judicial proceeding by interlocutory appeals.’”    Judicial Watch,

Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20

(D.D.C. 2002) (quoting United States v. Nixon, 418 U.S. 683, 690

(1974)).   “‘Although courts have discretion to certify an issue

for interlocutory appeal, interlocutory appeals are rarely

allowed . . . the movant bears the burden of showing that

exceptional circumstances justify a departure from the basic

policy of postponing appellate review until after the entry of

final judgment.’”    Id. (quoting Virtual Def. & Dev. Int'l, Inc.

v. Republic of Mold., 133 F. Supp. 2d 9, 22 (D.D.C. 2001)).

     In an attempt to demonstrate that the there is a substantial

ground for difference of opinion, defendants argue that the D.C.

Circuit’s opinion in Garcia v. Johanns, 444 F.3d 625 (D.C. Cir.

2006), “reached a conclusion different from that reached by this

Court,” Defs’. Mot. for Interlocutory Appeal at 5-6.   Defendants,

however, misread Garcia.    In Garcia, which dealt with a similarly

worded provision of the Equal Credit Opportunity Act (“ECOA”), 15

                                  2
U.S.C. § 1691 et seq., the D.C. Circuit specifically said, “[w]e

express no opinion about whether a disparate impact claim can be

pursued under ECOA,” Garcia, 444 F.3d at 633 n.9.   This language

demonstrates that contrary to defendants’ representations, the

D.C. Circuit has not signaled that disparate impact claims under

ECOA or the FHA are not cognizable.2

     Likewise, defendants have not demonstrated that there is a

split within this district on this issue.   Defendants argue that

Brown v. Artery Organization, Inc., 654 F. Supp. 1106 (D.D.C.

1987), demonstrates a split on the D.C. District Court.    This

Court explicitly rejected that claim in National Fair Housing

Alliance, Inc. v. Prudential Insurance Co., 208 F. Supp. 2d. 46,

59 (D.D.C. 2002).   See id. (“Brown did not hold, as defendants

contend, that disparate impact claims were never available under

the FHA.   Rather, Brown recognized that where there is evidence

of discriminatory effect, courts have required plaintiffs to

demonstrate varying degrees of discriminatory intent.”).

     The Court finds that defendants have failed to meet the high

standard required for interlocutory appeal.   This Court

considered defendants’ arguments in its Motion to Dismiss and

rejected them.   “Mere disagreement, even if vehement, with a

     2
       Moreover, as this Court noted in its denial of
defendants’ Motion to Dismiss, “all eleven of the United States
Circuit Courts of Appeal to consider the issue have found that
the FHA does provide for a disparate impact cause of action.”
Nat’l Cmty., 573 F. Supp. 2d. at 78.
                                3
court’s ruling does not establish a substantial ground for

difference of opinion sufficient to satisfy the statutory

requirements for an interlocutory appeal.”     Judicial Watch, 233

F. Supp. 2d at 20 (internal citations and quotation marks

omitted).    Defendants have simply reiterated their position that

disparate impact claims are not cognizable under the FHA, and

their Motion for Certification Pursuant to 28 U.S.C. § 1292(b) is

therefore DENIED.     An appropriate Order accompanies this

Memorandum Opinion.


Signed:     Emmet G. Sullivan
            United States District Judge
            February 19, 2009




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