Facts
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Robert Shimkus filed a private class action against Gersten Companies, a property-management business, alleging discrimination against Black applicants in tenant selection at six apartment complexes, in violation of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).
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About a week later, the United States filed a separate Fair Housing Act action against the same defendants on behalf of Black applicants and other minority applicants.
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Both actions proceeded before the same district judge, but the cases were not consolidated.
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In January 1984, the district court entered a consent order in the government’s case that:
- enjoined Gersten from discriminating against any person because of race, color, or national origin;
- identified roughly 100 minority applicants who would receive priority status for the next available units; and
- required measures such as employee instruction, public notice of nondiscrimination, outreach advertising, and notice to fair housing authorities.
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The private Shimkus plaintiffs were not parties to the government’s 1984 consent order.
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In February 1985, the Shimkus plaintiffs and Gersten submitted a separate consent decree in the private case that:
- enjoined discrimination against Black applicants because of race;
- gave Black applicants preferential consideration at the six complexes; and
- required Gersten to reach specified percentages of Black residents at those complexes.
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The district court permitted the United States to intervene in the private case to object to the proposed decree, but the court approved the decree over the government’s objections.
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The United States appealed, arguing that the private decree conflicted with the earlier government consent order and, in practical effect, awarded relief to Black applicants at the expense of non-Black minority applicants protected by Title VIII and contemplated by the government order.
Issues
- Whether the district court erred by approving a private Fair Housing Act consent decree that conflicted with an earlier consent order in a government enforcement action addressing the same rental practices.
- Whether, because the private decree could impair the interests of identifiable non-Black minority applicants protected by Title VIII, the district court was required to join those groups as parties and revise the decree to account for their interests.
Decision
- The Ninth Circuit held that the district court erred by approving the private consent decree without accounting for the rights of non-Black minorities protected by Title VIII.
- The court concluded the private decree conflicted with the earlier government consent order and effectively disregarded the interests of non-Black minority applicants covered by that order.
- The Ninth Circuit directed the district court to join the non-Black minorities as additional parties and to modify the private consent decree to provide for their interests.
- The case was vacated and remanded for joinder and modification consistent with the opinion.
Legal Principles
- Title VIII protects “any person” from discrimination in housing on the basis of race, color, or national origin; remedial relief for one protected group cannot be structured to deny meaningful access to relief for other protected groups affected by the same practices.
- A court should not enter a private consent decree that conflicts with a prior consent order in a government enforcement action aimed at the same discriminatory conduct, where the conflict would reallocate limited remedial opportunities among protected groups.
- When a proposed judgment or consent decree may, as a practical matter, impair identifiable nonparties’ ability to protect their legally protected interests, the court must consider joinder under Federal Rule of Civil Procedure 19.
- Joinder may be required even where the affected nonparties are best represented as groups or classes, if doing so is necessary to prevent impairment of their interests and to avoid placing the defendant under inconsistent obligations arising from overlapping decrees.
- Where joinder is feasible, the proper remedy is to add the affected groups and revise the decree so it can operate consistently with Title VIII and existing court orders governing the same housing practices.
Conclusion
Shimkus v. Gersten Co. holds that the district court could not approve a private Fair Housing Act consent decree granting race-specific preferences to Black applicants at six apartment complexes while ignoring non-Black minority applicants’ Title VIII interests and an earlier government consent order protecting all minorities; the Ninth Circuit vacated and remanded with instructions to join non-Black minorities and modify the decree to protect their interests and avoid conflict between the two judgments.