RODNEY GREEN, Sr. v. Mercy Housing, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY G REEN, Sr.,
Plaintiff-Appellant,
v.
M ERCY HOUSING, I NC.; M ERCY
HOUSING M ANAGEMENT GROUP ,
I NC.; M ERCY HOUSING CALIFORNIA
XXXVIII, a California limited
partnership,
Defendants-Appellees.
Nos. 20-15134
20-15358
D.C. No.
3:18-cv-04888-
WHA
OPINION
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.

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2 GREEN V. M ERCY H OUSING
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.

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GREEN V. M ERCY H OUSING 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

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4 GREEN V. M ERCY H OUSING
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

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GREEN V. M ERCY H OUSING 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

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6 GREEN V. M ERCY H OUSING
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

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GREEN V. M ERCY H OUSING 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

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conclusion of the litigation, applying the Christiansburg
standard should Mercy Housing ultimately prevail.
VACATED and REMANDED.

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