Rodney Green, Sr. v. Mercy Housing, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODNEY GREEN, Sr., Nos. 20-15134

Plaintiff-Appellant, 20-15358

v. D.C. No.

3:18-cv-04888-

MERCY HOUSING, INC.; MERCY WHA

HOUSING MANAGEMENT GROUP,

INC.; MERCY HOUSING CALIFORNIA

XXXVIII, a California limited OPINION

partnership,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted March 2, 2021

San Francisco, California

Filed March 19, 2021

Before: Bobby R. Baldock, * Kim McLane Wardlaw, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

*

The Honorable Bobby R. Baldock, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 GREEN V. MERCY HOUSING

SUMMARY **

Fair Housing Act / Costs

The panel vacated the district court’s grant of costs to the

defendant in an action under the Fair Housing Act, and

remanded.

Joining the First, Second, Fourth, and Fifth Circuits, the

panel held that in exercising its discretion whether to award

costs to a prevailing defendant under the Fair Housing Act’s

fee-shifting provision, a district court must apply the

Christiansburg standard, which requires the court first to

determine whether the plaintiff’s claim was frivolous,

unreasonable, or groundless.

In a separate, concurrently-filed memorandum

disposition, the panel affirmed in part and reversed in part

the district court’s grant of summary judgment to the

defendant and remanded for further proceedings.

COUNSEL

Irakli Karbelashvili (argued) and Irene Karbelashvili,

AllAccess Law Group, Santa Clara, California, for Plaintiff-

Appellant.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

GREEN V. MERCY HOUSING 3

Michelle L. Younkin (argued) and Shirley C. Wang, Davis

Wang APC, San Francisco, California, for Defendants-

Appellees.

OPINION

BERZON, Circuit Judge:

Rodney Green, Sr., a former tenant of Mercy Housing,

Inc., appeals the district court’s grant of summary judgment

to Mercy Housing on Green’s claims of race- and disability-

based discrimination in violation of the Fair Housing Act,

42 U.S.C. § 3604 et seq. We address the summary judgment

appeal and related discovery motions in a separate,

concurrently-filed memorandum disposition. As we remand

the case in the accompanying memorandum disposition, we

do not pass judgment on the merits of the district court’s

ultimate conclusion as to whether to tax costs to Mercy

Housing in this case. We write now only to clarify the

circumstances under which a district court may award fees

and costs to a prevailing defendant under the Fair Housing

Act (FHA).

I.

In November 2018, Rodney Green, Sr., was evicted from

his home in East Leland Court Apartments, in Pittsburg,

California. Two months before his eviction, Green, who is

Black and mobility impaired, filed suit in federal court

alleging that Mercy Housing had discriminated against him

on the basis of race and disability. Specifically, Green

asserted that Mercy Housing violated the Fair Housing Act,

California Fair Employment and Housing Act, California

Gov’t Code § 12955 et seq., and related statutes by refusing

to provide him with reasonable accommodations for his

4 GREEN V. MERCY HOUSING

disability, and that Mercy Housing was motivated by racial

animus when it served him with a sixty-day notice to quit in

December of 2017. Mercy Housing moved for summary

judgment. After the district court granted summary

judgment to Mercy Housing on each of Green’s claims, and

over Green’s timely objections, the court clerk entered a

taxation of Mercy Housing’s costs amounting $5,962.11.

Citing Christiansburg Garment Co. v. EEOC, 434 U.S.

412 (1978), Green argues that the district court abused its

discretion in taxing costs to Mercy Housing without first

determining that Green’s claim was “frivolous,

unreasonable, or groundless,” id. at 422. This circuit has not

previously addressed whether the Christiansburg standard

applies to the Fair Housing Act. We now hold that it does.

II.

Under Fed. R. Civ. P. 54(d)(1), costs are allowed to the

prevailing party as a matter of course “[u]nless a federal

statute, these rules, or a court order provides otherwise.”

“When the federal statute forming the basis for the action has

an express provision governing costs . . . that provision

controls.” Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190

(9th Cir. 2001) (citing Fed. R. Civ. P. 54(d)(1)). Under the

FHA’s fee-shifting provision, a court “in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee and

costs.” 42 U.S.C. § 3613(c)(2).

In Christiansburg, the Supreme Court held that, under

the fee-shifting provision of Title VII of the Civil Rights Act,

42 U.S.C. § 2000e-5(k), attorney’s fees should be awarded

to a prevailing defendant only if the plaintiff’s claim was

“frivolous, unreasonable, or without foundation.” 434 U.S.

at 421; see Summers v. A. Teichert & Son, Inc., 127 F.3d

1150, 1154 (9th Cir. 1997). Summers construed

GREEN V. MERCY HOUSING 5

Christiansburg as instructing that “attorney’s fees should be

granted to a defendant in a civil rights action only ‘upon a

finding that the plaintiff’s action’” met the Christiansburg

standard. 127 F.3d at 1154 (quoting Christiansburg,

434 U.S. at 421). Applying that standard, Summers held that

a grant of attorney’s fees to a prevailing defendant in an

action brought under the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101 et seq., would be improper unless

a plaintiff’s underlying claim was “frivolous, unreasonable,

or without foundation,” 127 F.3d at 1154 (quoting

Christiansburg, 434 U.S. at 421).

We have since held that Christiansburg applies to the

award of both fees and costs to a prevailing defendant under

the ADA. See Brown, 246 F.3d at 1190. The ADA’s fee-

shifting provision states that a court “in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee,

including litigation expenses, and costs.” 42 U.S.C.

§ 12205. In Brown, we held that the ADA’s statutory text

“makes fees and costs parallel,” and that the Christiansburg

standard therefore applies equally to both. 246 F.3d at 1190.

We now apply this same logic to the FHA. The Act’s

fee-shifting provision states that “the court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s

fee and costs.” 42 U.S.C. § 3613(c)(2). “[F]ee-shifting

statutes’ similar language is a strong indication that they are

to be interpreted alike.” Silver Sage Partners, Ltd. v. City of

Desert Hot Springs, 251 F.3d 814, 826 n.15 (9th Cir. 2001).

And the text of the FHA provision is nearly identical to that

of the fee-shifting provision of the ADA. The sole

distinction is that the ADA—but not the FHA—explicitly

identifies litigation expenses as a subset of awardable

attorney’s fees. Compare 42 U.S.C. § 3613(c)(2) with

42 U.S.C. § 12205. Because the FHA, like the ADA, treats

6 GREEN V. MERCY HOUSING

costs as parallel to, rather than a subset of, attorney’s fees,

we hold that the Christiansburg standard applies to the

award of both attorney’s fees and costs under the FHA.

Mercy Housing argues that the FHA and ADA fee-

shifting provisions are distinguishable from one another

because the ADA “includes costs as a potential part of a fee

award whereas the FHA keeps the two categories—costs and

attorney’s fees—distinct.” This construction of the ADA is

foreclosed by Brown, which explicitly held that the ADA

treats the two categories—fees and costs—as parallel.

246 F.3d at 1190. The placement of the commas in the ADA

fees provision confirms that understanding, by setting off

“litigation expenses” as a subset of fees, and then separately

adding “and costs.” 42 U.S.C. § 12205.

Our holding is consistent with the Supreme Court’s

reasoning in Christiansburg itself. In holding that plaintiff

in a Title VII action “should not be assessed his opponent’s

attorney’s fees unless a court finds that his claim was

frivolous, unreasonable, or groundless, or that the plaintiff

continued to litigate after it clearly became so,” the Court

reasoned that assessing fees against non-prevailing plaintiffs

“would undercut the efforts of Congress to promote the

vigorous enforcement” of civil rights actions. 434 U.S. at

422. Those efforts are not served when “the chilling effect

upon civil rights plaintiffs would be disproportionate to any

protection defendants might receive against the prosecution

of meritless claims.” Mitchell v. Office of Los Angeles Cnty.

Superintendent of Schs., 805 F.2d 844, 848 (9th Cir. 1986).

As this case illustrates, the danger of chilling civil rights

enforcement identified in Christiansburg and Mitchell—

both Title VII cases—is equally present in the Fair Housing

context. Here, the plaintiff, Rodney Green, was taxed costs

amounting to nearly $6,000 following the grant of summary

GREEN V. MERCY HOUSING 7

judgment to his former landlord. Green, who maintains that

he was subjected to racial harassment and disability-based

discrimination by Mercy Housing, was ultimately evicted

from his East Leland Court home for nonpayment of rent.

When he filed this suit, in August of 2018, he owed Mercy

Housing $3,417.00. We do not now pass judgment on the

merits of Green’s underlying action. But it does not require

much imagination to see how a similarly situated plaintiff,

already struggling to cover his expenses, might choose to

forego the risk of incurring costs equal to several months’

worth of rent to pursue even the strongest of claims against

a discriminatory landlord.

We therefore hold that a plaintiff bringing suit under the

Fair Housing Act should not be assessed fees or costs unless

the court determines that his claim is “frivolous,

unreasonable, or groundless.” Christiansburg, 434 U.S.

at 422. In so holding, we join the First, Second, and Fourth,

and Fifth Circuits, all of which have applied the

Christiansburg standard in the Fair Housing context. See

Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos,

38 F.3d 615, 618 (1st Cir. 1994); Taylor v. Harbour Pointe

Homeowners Ass’n, 690 F.3d 44, 50 (2d Cir. 2012); Bryant

Woods Inn, Inc. v. Howard County, 124 F.3d 597, 606 (4th

Cir. 1997); Providence Behav. Health v. Grant Rd. Pub. Util.

Dist., 902 F.3d 448, 460 (5th Cir. 2018).

There is no indication in the record that the district court

applied the Christiansburg standard when awarding costs.

Moreover, as we reverse the grant of summary judgment in

part in the accompanying memorandum disposition, it is

apparent that it cannot be said at this juncture that Green’s

claims were overall “frivolous, unreasonable, or

groundless.” Christiansburg, 434 U.S. at 422. We therefore

vacate the costs award. Costs should be awarded at the

8 GREEN V. MERCY HOUSING

conclusion of the litigation, applying the Christiansburg

standard should Mercy Housing ultimately prevail.

VACATED and REMANDED.