Gallagher v. Magner
2010 U.S. App. LEXIS 27066
8th Cir.2010Background
- The case involves multiple appellants challenging the City of St. Paul's aggressive housing-code enforcement as violating the FHA, 42 U.S.C. § 3604.
- The panel previously held that the City could be liable under a disparate-impact theory because enforcement increased costs and reduced affordable housing for minorities.
- The Court granted rehearing en banc requests in part, and Colleton, dissenting, would have granted rehearing to reexamine the theory's textual basis.
- Colleton notes the FHA text prohibits denying or making unavailable housing because of protected characteristics, but questions whether disparate impact based on enforcement costs fits the statute.
- The opinion discusses the doctrinal lineage from Griggs and Smith and whether those disparate-impact analyses extend to the FHA, and whether aggressive enforcement can be a permissible target of such analysis.
- The panel’s reasoning triggers threshold questions about the applicability of disparate-impact under the FHA and potential alternative enforcement programs like PP2000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FHA permits disparate-impact liability. | Gallagher contends disparate-impact theory applies under FHA. | Magner argues the FHA text does not authorize disparate impact. | En banc denial preserves panel approach; the question remains unsettled. |
| Whether aggressive housing-code enforcement can produce actionable disparate impact under the FHA. | Gallagher asserts enforcement practices cause discriminatory effects. | Magner contends no causal link under the statute's text. | Panel accepted disparate-impact rationale; not reheard en banc. |
| Whether PP2000 could achieve similar goals without greater cost and thus affect liability. | Gallagher argues a less aggressive program might be equally effective and less costly. | Magner disputes comparability and cost implications of PP2000. | Question not resolved by rehearing denial; merits further briefing. |
Key Cases Cited
- United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (disparate-impact-like approach under FHA discussed)
- Smith v. Anchor Building Corp., 536 F.2d 231 (8th Cir. 1976) (employed disparate-impact-like reasoning under FHA)
- Town of Huntington v. Huntington Branch, NAACP, 488 U.S. 15 (U.S. Supreme Court 1988) (disparate-impact theory not settled for FHA at that time)
- Griggs v. Duke Power Co., 401 U.S. 424 (U.S. Supreme Court 1971) (established disparate-impact under Title VII based on text and purpose)
- Smith v. City of Jackson, 544 U.S. 228 (U.S. Supreme Court 2005) (extension of disparate-impact analysis with identical text to Griggs)