Mitchell v. Cellone ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-1-2004
Mitchell v. Cellone
Precedential or Non-Precedential: Precedential
Docket No. 04-1063
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PRECEDENTIAL James Q. Harty, Esq. (Argued)
DKW Law Group
UNITED STATES COURT OF 600 Grant Street
APPEALS FOR THE THIRD CIRCUIT USX Tower, 58th Floor
Pittsburgh, PA 15219
Counsel for Appellants
NO. 04-1063
Robert E. Durrant, Esq. (Argued)
Campbell, Durrant & Beatty
KIMBERLY MITCHELL; 555 Grant Street
KENNETH M ITCHELL Suite 310
Appellants Pittsburgh, PA 15219
v. Counsel for Appellees
PAT CELLONE; P&R PROPERTIES,
INC.; P&R PROPERTIES, LP
OPINION
On Appeal from the United States VAN ANTWERPEN, Circuit Judge
District Court for the Western District
This case presents a question that
of Pennsylvania
has not previously been answered in this
(D.C. Civil No. 01-cv-02028)
Circuit concerning the Fair Housing Act.
District Judge:
Shou ld a cou ple all eging racial
Hon. Maurice B. Cohill, Jr.
discrimination in housing be allowed to
initiate a private lawsuit in federal court, if
t h ey h a v e p r e v io u s l y f i l ed a n
Argued October 7, 2004
administrative complaint under the Fair
Housing Act that has resulted in a state
BEFORE: SLOVITER, VAN
agency bringing a state court action against
ANTWERPEN, and COWEN,
the alleged discriminator? We answer this
Circuit Judges
question in the affirmative, and therefore
we reverse the order of the District Court
(Filed: November 1, 2004)
which dismissed the case for lack of
jurisdiction.
I.
The Fair Housing Act was designed
to provide nationwide fair housing to
minorities who had previously been The next day, the Mitchells
victims of invidious racial discrimination, received a telephone call from Ms.
and is a valid exercise of congressional Cellone, asking them to reconsider their
power under the Thirteenth Amendment to move into the Tuscany building. From this
eliminate badges and incidents of slavery. and subsequent conversations, the
See Jones v. Alfred H. Mayer Co., 392 Mitchells concluded that, because of their
U.S. 409, 439-440, 88 S.Ct. 2186, 20 L. race, they were being steered away from
Ed. 2d 1189 (1968). This legislation the homogenous Tuscany building toward
makes it the policy of the United States to an apartment in the racially-mixed
elimin ate all instance s of ra cial Carnegie building.2 The electronic access
discrimination in housing. card given to the Mitchells was
subsequently deactivated, preventing them
Kimberly and Kenneth Mitchell are
from entering the Tuscany building.
African-Americans who attempted to rent
an apartment from Ms. Pat Cellone, the On or about August 11, 1998, the
operating owner for the buildings owned Mitchells filed a complaint with the United
by P&R Properties, Inc. and P&R States Department of Housing and Urban
Properties, LP,1 in late June, 1998. The Development (“HUD”), alleging that the
Mitchells were shown two apartment Appellees’ actions violated the Fair
complexes: the racially homogenous Housing Act, 42 U.S.C. § 3601 (2003), et
T u sc a n y A partme nts buildin g in seq. (“FHA”). The Secretary of HUD
Pittsburgh, Pennsylvania, and the racially referred the complaint to the Pennsylvania
heterogeneous Carnegie Apartments Human Relations Commission (“PHRC”),
b u i l d in g , l o c a t e d in C a r n e g i e , as required by 42 U.S.C § 3610(f). PHRC
Pennsylvania. Both complexes are owned initiated an investigation and determined
by P&R Properties. The Mitchells chose there was probable cause to credit the
to rent an apartment in the Tuscany Mitchells’ allegations. Both the M itchells
building, and on June 30, 1998, signed a
one-year lease for an apartment in that
2
building. They also paid the required According to the facts alleged in the
application fee, first month’s rent, and the complaint filed with the Pennsylvania
appropriate security deposit. That same Human Rights Commission, the Mitchells
day, Ms. Cellone gave them keys to the were told that tenants in the Tuscany
Tuscany apartment, as well as an building might be intimidated by the race
electronic access card for the building, and and size of Mr. Mitchell (referring to him
a garage door opener. as a “black Arnold Schwarzanegger”), and
that the Mitchells would be more
comfortable in the Carnegie building since
1
We shall refer to appellees P&R some of the tenants in that building were
Properties, Inc. and P&R Properties, LP African-American. See Appendix to Brief
collectively as simply “P&R Properties.” of Appellants, pg. 25.
2
and A ppellees elected un der the their motion was denied. This appeal
Pennsylvania Human Relations Act, 43 followed.
P.S. § 959(d.1) (Supp. 2004), to have the
II.
complaint heard in the Commonwealth
Court of Pennsylvania (as opposed to an The Mitchells filed a timely Notice
administrative hearing), where PHRC of Appeal pursuant to Fed. R. App. P. 4.
would litigate on behalf of the Mitchells.3 We have appellate jurisdiction over this
A trial date was set for sometime in final order of the District Court pursuant to
February, 2002. Dissatisfied with the 28 U.S.C. § 1291. Where issues of
denial of their motion to intervene, the statutory interpretation are implicated, we
Mitchells moved to discontinue the action will exercise plenary review over a district
before the Commonwealth Court on or court’s decision. See U.S. v. Thayer, 201
about November 29, 2001, which was F.3d 214, 219 (3d Cir. 1999).
granted.
III.
On or about October 29, 2001, the
Because the District Court’s
Mitchells filed this federal complaint in
decision was based exclusively on the
the United States District Court for the
wording of 42 U.S.C. § 3613, we will
Western District of Pennsylvania, alleging
begin, as in all statutory interpretation
both that the Appellees’ actions violated
cases, with the language of that statute.
the FHA and infringed upon the federal
See Barnhart v. Sigmon Coal Co., 534
property rights guaranteed to them as
U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed.
minority citizens pursuant to 42 U.S.C. §
2d 908 (2002).
1982. The Appellees filed a Motion to
Dismiss, which was granted on November An aggrieved person may
17, 2003. See Mitchell, et al. v. Cellone, commence a civil action in
et al., 291 F. Supp.2d 368 (W.D. Pa. an appropriate United States
2003). In that Order, the District Court district court or State court
concluded that it was without jurisdiction not later than 2 years after
to hear the FHA claim, and that the section the occurrence or the
1982 claim had been filed beyond the two- termination of an alleged
year statute of limitations period. The disc rimina tory hou sin g
Mitchells moved for reconsideration of practice, or the breach of a
this ruling under Fed. R. Civ. P. 59(e), but c onc il i a ti o n a gr e e me nt
entered into under this
subc hapte r , w h i c h e v e r
3
The Mitchells sought to intervene in occurs last, to obtain
their own right before the Commonwealth appropriate relief w ith
Court, but that court denied their respect to such
application in an unreported memorandum
opinion.
3
discriminatory housing policy); see also N.J. Transit Policemen's
practice or breach. Benev. Ass'n Local 304 v. New Jersey
Transit Corp., 806 F.2d 451, 453 (3d. Cir.
See 42 U.S.C. § 3613(a)(1) (2003).
1986) (“In seeking to dis cern
It is not within the province of this Congressional intent from the legislative
or any other court to interpret what needs text, a court must be mindful of the
no interpretation. See Watt v. Alaska, 451 statute’s object and policy and must read
U.S. 259, 266, 101 S. Ct. 1673, 68 L. Ed. the disputed provision in the context of the
2d 80 n.9 (1981) (noting that, while the entire statute and the provisions of related
plain-meaning rule is not absolute, “the statutes.”).
words used, even in their literal sense, are
The dispute between the parties has
the primary, and ordinarily most reliable,
focused on the enforcement procedure
source of interpreting the meaning of any
available for those alleging violations of
writing: be it a statute, a contract, or
the FHA. Enforcement is accomplished in
anything else”). If a statute is plain in its
two ways that are relevant here:
terms, we shall apply the legislature’s
administrative enforcement under 42
instructions as long as they are
U.S.C. § 3610, and private enforcement
constitutional. See Caminetti v. United
under section 3613.4 Under section 3610,
States, 242 U.S. 470, 485, 37 S. Ct. 192,
an aggrieved person may file a complaint
61 L. Ed. 442 (1917) (“It is elementary
with the Secretary of HUD alleging a
that the meaning of the statute must, in the
discriminatory housing practice. By its
first instance, be sought in the language in
terms, section 3610 requires the Secretary
which the act is framed, and if that is
to refer a housing complaint to a certified
plain, and if the law is within the
state public agency (if one exists), which
constitutional authority of the law-making
will shoulder the responsibility for
body which passed it, the sole function of
investigation and, if warranted,
the courts is to enforce it according to its
prosecution of a housing discrimination
terms.”). Our consideration of a statute
claim. See 42 U.S.C. § 3610 (2003).
must be in its entirety–we will not confine
Alternatively, section 3613 allows for a
our interpretation to a single section, nor
civil cause of action in either State or
will we ignore the legislative scheme of
Federal court within two years5 after any
which a particular provision is part where
the wording of a statute is not certain. See
U.S. Nat. Bank of Oregon v. Independent 4
A third option, enforcement by the
Ins. Agents of America, Inc., 508 U.S.
Attorney General, is authorized by 42
439, 455, 113 S. Ct. 2173, 124 L. Ed. 2d
U.S.C.
402 (1993) (“[The courts] must not be
§ 3614.
guided by a single sentence or member of
a sentence, but look to the provisions of 5
This two-year statute of limitations is
the whole law, and to its object and tolled during the time an administrative
4
alleged housing discrimination, whether or Amendments Act of 1988, Pub. L. No.
not an administrative complaint has been 100-430, 1998 U.S.C.C.A.N. 2173, 2177.6
filed under section 3610. See 42 U.S.C. § Simply put, those most affected by racial
3613(a)(2) (2003) (“An aggrieved person discrimination in housing were primarily
may commence a civil action . . . whether low income minorities who did not have
or not a complaint has been filed under the resources to privately enforce the
section 3610(a) of this title and without FHA, at least not on a scale sufficient to
regard to the status of any such complaint. achieve the government’s goal of
. . ”) (emphasis added). The only eradicating housing discrimination. As
limitation on this private avenue of such, the one-hundredth Congress moved
enforcement is that an aggrieved person to strengthen the FHA through the 1988
may not initiate a private suit if amendments. See generally Fair Housing
administrative enforcement has been Amendments Act of 1988, Pub. L. No.
activated and such enforcement has led to 100-430, 102 Stat 1619 (2003) (“FHAA”).
the commencement of an administrative One of the declared purposes of the
hearing on the record. See 42 U.S.C. § FHAA was to alleviate the burden placed
3613(a)(3) (2003). As we read the statute, on private individuals and fair housing
the plain language of sections 3610 and organizations who, prior to amendment,
3613 state that a dual enforcement scheme should ered primary enforcement
exists that allows an aggrieved party to responsibility. One of the key
pursue both private and administrative modifications made to the FHA was the
enforcement until such time as either additi on of section 3 610, th e
avenue has achieved resolution of the administrative enforcement mechanism.
claim. It was envisioned that this administrative
mechanism would become the primary
Our reading of section 3613 is
means of enforcing FHA claims, and that
bolstered by the FHA’s legislative history.
it would be an alternative to the private
Congress enacted the FHA following the
right of action that had been traditionally
urban unrest of the mid-1960s. The FHA,
available. See House Report (Judiciary
in its original form, provided for a clear
Committee) at 2178. This history
national policy against discrimination in
demonstrates to our satisfaction that
housing, but only provided for private
Congress envisioned that a complainant
enforcement. Twenty years later,
could sue through HUD and its state
Congress concluded that a primary
commission counterparts or initiate
weakness of the FHA was the limited
litigation privately: the choice of one
means of enforcing it. See House Report
alternative would not foreclose the other
(Judiciary Committee), Fair Housing
6
proceeding is pending. See 42 U.S.C. § No Senate report was submitted with
3613(a)(1)(B). this legislation.
5
avenue of redress. See House Report The Appellees would have us read
(Judiciary Committee) at 2197 (“Dismissal the conjunction “or” in section 3613(a)(1)
by the Secretary [of an administrative as preventing an aggrieved party from
complaint] does not preclude an aggrieved bringing suit in federal court if an
person from filing a civil action under administrative complaint resulted in any
[section 3613], but indicates the end of the connection whatsoever with state court.
Secretary’s involvement with that This is an interpretation we cannot accept,
complaint.”). Changes made to other as it twists the clear language of sections
provisions of the FHA bear this out: the 3610 and 3613, and ignores the policies
Committee noted that the amendment and goals articulated in the legislative
made to 42 U.S.C. § 3612(f) required history of the FHA and its subsequent
“cessation of administrative proceedings amendments. We cannot and will not
at the commencement of a trial brought by distort section 3613 based simply upon
the same aggrieved person challenging the this restrictive reading of the conjunction
same alleged discriminatory housing “or.”
practice . . . this is intended to prevent
Turning to the specific facts of this
multiple adjudication of the same alleged
case, we conclude that the Mitchells’
discriminatory housing practice.” See Id.actions fell within the enforcement
at 2198 (emphasis added); see also
scenario envisioned by the Congress when
generally 42 U.S.C. § 3612 (2003).
it enacted, and later amended, the FHA.
Moreover, the Committee report stated
Administrative enforcement of the FHA
that “an aggrieved person is not required
was initiated by their complaint to the
to exhaust the administrative process
Secretary of HUD, as authorized by
before filing a civil action . . . the
section 3610(a). The Secretary
administrative proceeding [is to] be a
thereinafter referred the complaint to the
primary, but not exclusive, method for
PHRC (the certified state agency), per
persons aggrieved by discriminatory
section 3610(f). From that point forward,
housing practices to seek redress.” See Id.all activity with regard to the Mitchells’
at 2200 (emphasis added). While under
FHA claim was handled through PHRC,
42 U.S.C. § 3612(f), a complainant cannot
in accordance with 43 P.S. § 959 (1991 &
pursue administrative proceedings once
Supp. 2004).7 The Mitchells were given
trial has begun in a federal court suit, there
the option to have their complaint
is nothing to prevent him from pursuing
prosecuted in either an internal
both approaches until that time. The
administrative hearing, or in an action
statements of the House Judiciary
prosecuted by the PHRC in
Committee, when coupled with Title
VIII’s goal of ending discrimination in
housing, support a finding that the 7
43 P.S. § 959 is the Pennsylvania
methods of FHA enforcement should be counterpart to FHA § 3610's
construed broadly by the courts. administrative enforcement scheme.
6
Commonwealth Court, pursuant to 43 P.S. chose to proceed judicially before the
§ 959(d.1) (Supp. 2004), 8 and all parties Commonwealth Court. The civil litigation
commenced on behalf of the Mitchells by
PHRC was, as we see it, in furtherance of
8
Subsection d.1 reads, in relevant part:
the administrative complaint they
originally filed with HUD under section
When notice of hearing is
3610, and hence part of the administrative
given as set forth in
enforcement mechanism. We cannot
subsection (d) and an
conclude this was a separate, private
e l e c ti o n p roce d u r e is
enforcement action by the Mitchells, as the
required by the Fair Housing
Appellees insist. The Mitchells therefore
Act, either party may elect
never exercised their option to bring a
to have the claim asserted in
private suit in state or federal court under
the complaint decided in a
section 3613 until they filed the present
civil action brought under
action on or about October 29, 2001. We
the original jurisdiction of
find nothing discordant between the FHA
Commonwealth Court. The
enforcement scheme envisioned by
written notice of the
Congress and the manner in which the
Commission shall be sent to
Mitchells chose to proceed with their
all parties and will inform
discrimination claim. Therefore, we
them of their right to take
conclude that the District Court was in
civil action. An election
error when it found that it lacked
must be made within twenty
jurisdiction to hear the Mitchells’ case.
days after receipt of the
notice of hearing. A party
IV.
making this election shall
notify the Commission and Finally, we note that the Mitchells’
all other parties. If an section 1982 claim was not substantively
election for civil action is argued in their brief before us. Where an
made by either party, the appellant presents an issue in his statement
Commission shall, within of issues raised on appeal, but not in the
thirty days from the date of argument section of his brief, he has
election, commence and “abandoned and waived that issue on
maintain a civil action on
behalf of the complainant
provided, however, that, General shall, within thirty
whenever the Attorney days from the date of
General signs and files the election, commence and
complaint pursu ant to maintain a civil action on
subsection (a), the Attorney behalf of the complainant.
7
appeal.” Travitz v. Northeast Dep’t
ILGWU Health & Welfare Fund, 13 F.3d
704, 711 (3d Cir. 1994). Here, the
Mitchells reference section 1982 twice in
their issue statement, but fail to articulate
in their argument section why the court
below was incorrect when it dismissed this
claim. As such, we conclude that this
issue has been waived.
V.
For the foregoing reasons, we
reverse the District Court with regard to its
dismissal of the Mitchells’ FHA claim and
remand this case for further proceedings.
We deem the issue of the District Court’s
dismissal of the Mitchells’ section 1982
claim to have been waived.
8