More Justice Department Chicanery: Thomas Perez and ‘Disparate Impact’

Fast forward to the new claim involving Mount Holly: although the U.S. is, again, not a party to the case, the Supreme Court last October asked the Justice Department to file a brief advising whether it thought the Court should accept the case for review.

To no one’s surprise, the brief that Justice recently filed told the Court it should not take the case. The question of whether disparate impact claims are available under the FHA “does not warrant review,” it declared. The brief was filed by Solicitor General Donald B. Verrilli, Jr., and right under his name is that of Thomas E. Perez.

Verrilli and Perez argue that disparate impact claims are a “reasonable construction of the statute’s text, structure, and history” and that there is no conflict in the courts of appeal on this issue. But the brief ends with an argument you wouldn’t expect from Justice, given Perez’s sub rosa involvement in getting the Magner case dismissed -- especially in light of recent revelations that he violated federal law and Justice Department rules by using his personal email account to facilitate the deal.

Verrilli and Perez fault Mount Holly for even raising the issue of whether disparate impact claims are valid under the FHA. Mount Holly, they write, had the “opportunity to raise both questions” in the lower courts when the Magner case was before the Supreme Court,” and therefore can’t bring it up now.

With stunning chutzpah, the government is arguing that Mount Holly should have been aware that disparate impact was a live issue when review was granted in Magner v. Gallagher and should have raised the issue in its own case.

This is wrong for two reasons. First, the timeliness of Mount Holly’s claim that disparate impact does not constitute a violation of the FHA has no relation whatsoever to someone else’s lawsuit, such as the Magner case. Second, even if Mount Holly mistakenly thought disparate impact was not a live legal issue when Magner was before the Supreme Court, Mount Holly would have learned it was a live issue when the scandal became public over the government’s quid pro quo deal that bought off St. Paul and caused the city to dismiss the Magner case. Therefore, the government’s very actions in Magner make the Mount Holly disparate impact claims in the current case timely.

It should also be noted that while the brief criticizes Mount Holly for not raising this issue when Magner was before the Supreme Court, it fails to inform the Court that a senior Justice Department official (whose name is on the brief) helped get that very case dismissed before the Court could hear oral arguments.

Should we be surprised by any of these convoluted machinations?

Probably not, given what happened the last time disparate impact was being considered by the Supreme Court. The House report concluded that the quid pro quo in the Magner case “manipulated the rule of law and pushed the limits of justice to make” the deal happen.

The Supreme Court should accept the Mount Holly case. And if Justice approaches Mount Holly with a Magner-esque deal, the city should reject it so the Court can finally rule on the validity of disparate impact claims.

Hans von Spakovsky is a lawyer in Washington. He is writing this essay in a purely private capacity.