Fair Housing Cncl v. Montgomery Newspaper

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
3-31-1998
Fair Housing Cncl v. Montgomery Newspaper
Precedential or Non-Precedential:
Docket 97-1051
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
Recommended Citation
"Fair Housing Cncl v. Montgomery Newspaper" (1998). 1998 Decisions. Paper 60.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/60
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 31, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-1051
THE FAIR HOUSING COUNCIL OF SUBURBAN
PHILADELPHIA,
APPELLANT
v.
MONTGOMERY NEWSPAPERS; MONTGOMERY
PUBLISHING CO.; ARTHUR W. HOWE, IV;
NAOMI BROWNSTEIN
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 96-cv-01381)
Argued
September 9, 1997
Before: MANSMANN and NYGAARD, Circuit Judges
and BLOCH, District Judge*
(Filed March 31, 1998)
Clifford A. Boardman, Esquire
(ARGUED)
Two Penn Center, Suite 1920
Philadelphia, PA 19102
Counsel for Appellant
_________________________________________________________________
* Honorable Alan N. Bloch of the United States District Court for the
Western District of Pennsylvania, sitting by designation.
Reuben A. Guttman, Esquire
(ARGUED)
Brian P. McCafferty
Provost & Umphrey
1350 New York Avenue, N.W.
Suite 1040
Washington, DC 20005
Counsel for Appellees
William G. Scarborough, Esquire
Stradley, Ronon, Stevens & Young,
LLP
2600 One Commerce Square
Philadelphia, PA 19103
Karen L. Black, Esquire
Public Interest Law Center of
Philadelphia
125 South Ninth Street
Suite 700
Philadelphia, PA 19107
Counsel for Amicus Curiae Fair
Housing Action, Fair Housing
Council of Montgomery County,
Fair Housing Council of Southern
New Jersey, Fair Housing
Partnership Of Greater
Pittsburgh, Housing Consortium
for Disabled Individuals, and
Housing Council of York
John A. Feichtel, Esquire
Pennsylvania Newspaper
Publisher Association
2717 North Front Street
Harrisburg, PA 17110
Counsel for Amicus Curiae
Pennsylvania Newspaper
Publishers' Association
2
OPINION OF THE COURT
MANSMANN, Circuit Judge.
The Fair Housing Council of Suburban Philadelphia
("FHC") appeals an order of the district court granting
summary judgment in favor of Montgomery Newspapers
("Montgomery"), the papers' publisher, and their classified
advertisements editor in an action filed pursuant to the
Fair Housing Act, 42 U.S.C. SS 3604 and 3617, and the
Pennsylvania Human Relations Act, 43 P.S. S 955. The
district court's grant of summary judgment was based on
its conclusion that the FHC lacked standing under Article
III of the United States Constitution to maintain this suit.
Because we are convinced by the unique set of facts
surrounding the section 3604(c) claims that the FHC has
failed to satisfy the "injury in fact" requirement embodied in
Article III, we find that the grant of summary judgment as
to those claims was appropriate. As to the section 3617
retaliation claims, however, we find that the FHC has raised
issues of fact sufficient to withstand Montgomery's motion
for summary judgment. We will, therefore, reverse the
district court's entry of summary judgment as to the
retaliation claim and remand for further consideration.
I.
The FHC, a fair housing group which has operated in the
Philadelphia area for more than forty years, defines itself as
a non-profit organization whose "purpose is to educate and
promote fair housing and to oppose segregation based on
the protected classes found in the Fair Housing Act of
1968, as amended." On April 6, 1994, the FHCfiled a
complaint with the Pennsylvania Human Relations
Commission ("PHRC") and HUD alleging that from
November 24, 1993 forward, Montgomery "accepted and
published advertisements that were discriminatory based
on gender and familial status" in violation of state and
federal law. The complaint included copies of six
advertisements which appeared in Montgomery newspapers
between November, 1993 and March, 1994. Each of these
3
advertisements contained one of the following allegedly
objectionable phrases: "mature person"; "ideal for quiet and
reserved single and-or couple"; "professional male . . . only";
and "quiet mature setting." On January 5, 1996, the PHRC
notified the FHC that "investigation of the complaint [had]
resulted in a Finding of Probable Cause. . . ."
According to the FHC, Montgomery "continued publishing
discriminatory speech." Therefore on February 21, 1996,
the FHC filed suit in district court. An amended complaint
was filed on April 10, 1996. In the amended complaint, the
FHC alleged that Montgomery's acceptance and publication
of discriminatory housing advertisements frustrated the
organization's mission and resulted in damage to the
organization caused by the need to divert resources to fight
the discrimination. The FHC also alleged that as a result of
the discriminatory advertisements, "families with children
were barred from housing" in violation of state and federal
law.
The amended complaint added allegations that
Montgomery had intimidated, coerced, interfered with and
retaliated against the FHC as a result of the FHC's
complaint against Montgomery. The FHC contended that in
newspaper articles, testimony before the state legislature,
and other false statements made by or on behalf of
Montgomery, the FHC had been placed in a position of
ridicule which impaired the organization's effectiveness.
On September 25, 1996, Montgomery filed a motion for
summary judgment which was granted on January 6,
1997. The district court held that the FHC lacked standing
to pursue any of the claims alleged.
In arriving at this conclusion the district court separated
the FHC's damage claims into three categories: (1)
frustration of the FHC mission; (2) diversion of resources to
measures designed to correct the harm caused by the
discriminatory advertising; and (3) diversion of resources to
litigation.
Analyzing the first category of claims, the court found
that frustration of an organization's mission can never, as
a matter of law, suffice to satisfy the Article III requirement
of injury in fact. With respect to the alleged diversion of
4
resources to programs designed to counteract the
discrimination, the district court found that the FHC "failed
to set forth specific evidence demonstrating that its various
programs have been `perceptibly impaired as a result of the
diversion of its resources . . . to activities counteracting
[the] allegedly discriminatory acts.' [P]laintiff has failed . . .
to initiate any such educational program or to expend any
funds at all on the development of such a program." Fair
Housing Council v. Montgomery Newspapers, 1997 WL 5185
*7 (E.D. Pa. Jan. 7, 1997).
The court also rejected the FHC's argument that it had
suffered injury for purposes of Article III when it was forced
to divert resources from other programs to the pursuit of
litigation. "[S]uch an injury cannot constitute, as a matter
of law, an injury in fact." Id. at *6. The court reasoned that
finding this type of injury sufficient would mean that an
organization would be able to "manufacture the injury
necessary to maintain a suit from its expenditure of
resources on that very suit." Id. at *5 (quoting Spann v.
Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)).
This timely appeal followed.
II.
In order to place the district court's holding and our
review of that holding in context, we turn first to the law
governing standing in general. Constitutional standing
requirements have been articulated often. The Supreme
Court summarized the history and parameters of those
requirements most recently in Raines v. Byrd, ___ U.S. ___,
117 S. Ct. 2312 (1997). Article III S 2 of the Constitution
confers jurisdiction in the federal courts over"cases" and
"controversies." "One element of the case or controversy
requirement is that [the plaintiffs], based on their
complaint, must establish that they have standing to sue.
The standing inquiry focuses on whether the plaintiff is the
proper party to bring this suit." Id. at 2317 (citation
omitted).
The standing inquiry in most cases is two-tiered,
involving "both constitutional limitations on federal-court
jurisdiction and prudential limitations on its exercise."
5
Warth v. Seldin, 422 U.S. 490, 498 (1975). First, a plaintiff
must satisfy the "case" or "controversy" requirement of
Article III. This requirement has been described as
"immutable", Bennett v. Spear, ___ U.S. ___, 117 S. Ct.
1154, 1163 (1997) and as the "irreducible constitutional
minimum." Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). The standing requirements embodied in the
"case" or "controversy" provision of Article III mean that in
every case, the plaintiff must be able to demonstrate:
An "injury in fact" -- an invasion of a judicially
cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not
conjectural or hypothetical; second, there be a causal
connection between the injury and the conduct
complained of -- the injury has to be "fairly trace[able]
to the challenged action of the defendant, and not .. .
the result [of] the independent action of some third
party not before the court. Third, it must be "likely," as
opposed to merely "speculative," that the injury will be
"redressed by a favorable decision."
Id. at 560-61. Each of these elements of Article III standing
"must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the
successive stages of the litigation." Bennett v. Spear, at
1163-64 (quoting Lujan, 504 U.S. at 561).
Even where this constitutional minimum has been met,
courts have developed other standing principles which may
be invoked to defeat a plaintiff's standing to pursue a
claim.
In addition to the immutable requirements of Article III,
"the federal judiciary has also adhered to a set of
prudential principles that bear on the issue of
standing." Like their constitutional counterparts, these
"judicially self-imposed limits on the exercise of federal
jurisdiction" are "founded in concern about the proper
-- and properly limited -- role of the courts in a
democratic society" but unlike their constitutional
counterparts, they can be modified or abrogated by
Congress.
6
Id. at 1161 (citations omitted). These second-tier prudential
limits on standing deal with who is authorized to invoke the
courts' decisional and remedial powers. The Supreme Court
in Warth v. Seldin, 422 U.S. 490, 499-500 (1975),
summarized these prudential limits as follows:
Apart from [the] minimum constitutional mandate, this
court has recognized other limits . . . . First, the Court
has held that when the asserted harm is a "generalized
grievance" shared in substantially equal measure by all
or a large class of citizens, that harm alone does not
warrant exercise of jurisdiction. Second, even when the
plaintiff has alleged injury sufficient to meet the "case
or controversy" requirements, this Court has held that
the plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the
legal rights or interests of other parties. Without such
limitations
. . . the courts would be called upon to decide abstract
questions of wide public significance even though other
governmental institutions may be more competent . . .
and judicial intervention may be unnecessary to
protect individual rights.
(Citations omitted.)
Congress may grant an express right of action to those
who would otherwise lack standing due to application of
the prudential requirements. So long as the Article III
minimum requirements are met, a plaintiff may, where
Congress directs, have standing to "seek relief on the basis
of the legal rights and interests of others, and . .. may
invoke the general public interest. . . ." Id. at 500.
Prudential standing requirements have been eliminated in
cases arising under the Fair Housing Act ("the Act").1 The
_________________________________________________________________
1. 642 U.S.C. S 3604(c) of the Fair Housing Act makes it unlawful:
To make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement with respect to
the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on race, color, religion, sex,
handicap, familial status, or national origin or an intention to
make
any such preference, limitation, or discrimination.
7
Supreme Court has established that Congress intended
that standing under the Fair Housing Act be limited only by
Article III and that the courts, as a result, may not create
prudential barriers to standing under the Act. "[T]he sole
requirement for standing to sue [under the Fair Housing
Act] is the Art. III minima [sic] of injury in fact: that the
plaintiff allege that as a result of the defendant's actions he
has suffered `a distinct and palpable injury.' " Havens
Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982)
(citations omitted).
III.
In this matter we must decide whether the FHC has
shown "distinct and palpable injury" sufficient to satisfy
Article III standing requirements under the Fair Housing
Act. The parameters of the injury requirement were
addressed by the Supreme Court in Havens Realty Corp. v.
Coleman, 455 U.S. 363 (1982). In Havens, a realty company
and one of its employees were alleged to have engaged in
racial "steering" in violation of the Fair Housing Act. The
plaintiffs included a housing organization, Housing
Opportunities Made Equal ("HOME"), which had a mission
generally similar to that of the FHC here. HOME alleged
that it had suffered injury as a result of the "steering,"
claiming that its counseling and referral services had been
frustrated with a consequent drain on its resources. The
complaint also contained allegations that individual
plaintiffs had been "deprived . . . of the . . . benefits of
_________________________________________________________________
The Act provides that "an aggrieved person may commence a civil action
in an appropriate United States district court. . . .", S 3613(a)(1)(A),
and
defines an "aggrieved person" (including corporations and associations)
as:
any person who--
(1) claims to have been injured by a discriminatory housing
practice;
or
(2) believes that such person will be injured by a discriminatory
housing practice that is about to occur.
Section 3602(I).
8
interracial associations that arise from living in integrated
communities free from discriminatory housing practices."
Id. at 369. The Supreme Court held that HOME was
entitled to sue in its own right.
After explaining that standing under the Fair Housing Act
is constrained only by Article III requirements and outlining
those requirements, the Court wrote:
In determining whether HOME has standing under the
Fair Housing Act, we conduct the same inquiry as in
the case of an individual: Has the plaintiff " `alleged
such a personal stake in the outcome of the
controversy' as to warrant his invocation of federal
court jurisdiction?" . . . If, as broadly alleged,
petitioner's . . . practices have perceptibly impaired
HOME's ability to provide counseling and referral
services for low- and moderate-income homeseekers,
there can be no question that the organization has
suffered injury in fact. Such concrete and demonstrable
injury to the organization's activities -- with the
consequent drain on the organization's resources--
constitutes far more than simply a setback to the
organization's abstract social interests.
Id. 455 U.S. at 378-79 (citations omitted) (emphasis added).
Before we analyze the FHC's particular allegations of
harm, we note that there is a critical distinction between
Havens and this case. In Havens, the plaintiff 's damage
allegations were examined in the context of a motion to
dismiss. Here, however, the issue of standing was before
the district court on a motion for summary judgment. While
there is no dispute that the FHC's damage allegations2
_________________________________________________________________
2. In its amended complaint the FHC made the following allegations
bearing on injury:
10. [E]ach act of discrimination conducted in the Delaware Valley
causes a setback to the good work accomplished by the FHC's
educational outreach efforts and to the development of an
integrated
housing community. As a result, the FHC must launch further
efforts to undo the damage that the discrimination has caused . . .
.
The further efforts required are a substantial drain on its
resources
and harms [sic] the FHC.
9
track the language in Havens and were sufficient to
withstand a motion to dismiss, something more than these
naked allegations was required at the summary judgment
stage. "Since [the elements of standing] are not mere
pleading requirements but rather an indispensable part of
the plaintiff's case, each element must be supported in the
same way as any other matter on which the plaintiff bears
the burden of proof, i.e. with the manner and degree of
evidence required at the successive stages of the litigation."
Lujan, 504 U.S. at 561.
In order to defeat the summary judgment motion based
on the issue of standing, the FHC was required to submit
"affidavits or other evidence showing through specific facts
. . . that . . . it [was] `directly' affected [by the alleged
discrimination]." Id. at 562 (emphasis added). According to
the district court, the FHC failed to carry its burden at
summary judgment, producing nothing of substance to
support the mere allegations set forth in the complaint. As
to the discrimination claims, we agree.
IV.
Because both the FHC and the district court considered
by category the damage claims based on alleged
discrimination, we do the same, turning first to the
allegations regarding frustration of mission. In an effort to
establish standing, the FHC argued that the discriminatory
advertisements "cause[d] a setback to the good work
accomplished by the FHC's educational outreach efforts
and to the development of an integrated housing
community." The district court rejected this alleged
"frustration of mission" as a basis for organizational
standing, stating that "such an injury cannot constitute, as
_________________________________________________________________
20. As a result of the conduct of the Defendants, persons were
injured in their person and property. Specifically, families with
children were barred from housing in violation of the . . . Act of
1968 . . . . Further, the FHC is now forced to divert funds to
counteract the discriminatory message and acts of Defendants and
has had its purpose frustrated by Defendants' discriminatory
conduct.
10
a matter of law, an `injury in fact.' " Fair Housing Council,
1997 WL 5185 at *4. This is not an accurate statement of
the law. Havens made clear that where discriminatory
"practices have perceptibly impaired [an organization's
ability to carry out its mission], there can be no question
that the organization has suffered injury in fact." 455 U.S.
at 379. Nonetheless, we are convinced that the allegations
of frustration of mission were insufficient to defeat
summary judgment as the FHC failed to substantiate any
perceptible impairment to its mission.
The FHC contends that its mission suffered the
impairment required to establish standing when it was
forced to divert resources from counseling and other
activities to: (1) an educational campaign designed to
counteract the discriminatory effect of the advertisements;
(2) an investigation designed to determine the existence and
extent of on-going discrimination in advertising; and (3)
litigation. We address the FHC's alleged diversion of
resources in each of these categories seriatim.
A.
We turn first to the FHC's claim that it was damaged by
the need to divert funds "over the course of three years to
repair damage caused by" the discriminatory
advertisements. Although pressed to do so in discovery and
in oral argument before us, the FHC was unable to
establish any connection between the allegedly
discriminatory advertisements underlying this suit and the
need for or implementation of a remedial educational
campaign. The FHC was unable to verify that any member
of the public had been denied housing or was deterred from
seeking housing based on the advertisements. The FHC was
also unable to establish that any member of the public
complained about the contents of the advertisements or
formed a misimpression about the legality of their contents.
In fact, the FHC was unable to show that anyone other
than the FHC staff even read the relevant advertisements.3
_________________________________________________________________
3. We do not, as the dissent argues, impose a bona-fide home-seeker
requirement. We adhere instead to the letter of the caselaw which clearly
11
Not only did the FHC fail to introduce evidence of the need
for an educational program, it failed to show that any
educational effort was ever implemented.
The only evidence relating to implementation of an
educational effort was the FHC's allegation that, at some
future time, it would be required to spend almost $100,000
in newspaper advertising and over $300,000 in seminars
and mailings to reach consumers to counter the
advertisements' discriminatory message. Although the
questionable advertisements were published in 1993 and
1994, the FHC admitted that it has yet to undertake any
educational countermeasures or to offer counseling directed
at reversing the damage alleged to have been caused by the
advertisements. The FHC was unable to say when such
measures might be undertaken or when funds might
actually be expended in support of this educational effort.
These inchoate plans for future programs are insufficient to
demonstrate injury for purposes of Article III:
Such "some day" intentions -- without any description
of concrete plans, or indeed even any specification of
when the some day will be -- do not support afinding
of the "actual or imminent" injury that our cases
require.
Lujan v. Defenders of Wildlife, 504 U.S. at 564.4 The FHC's
_________________________________________________________________
establishes that an alleged injury must be shown to flow from the
conduct alleged. Where, as here, the record fails to show that any
housing provider, real estate professional, or member of the public ever
saw the advertisements specified, the essential causal nexus between the
advertisements and the injury alleged is missing. Contrary to what the
dissent suggests, the injury alleged must result from the particular
discriminatory acts, not from the general conduct of multiple parties over
the course of years.
4. While the dissent argues that "the cases are legion supporting a
conclusion that the FHC is not required to actually pay for the
advertising campaign before it can assert standing," the cases cited
differ
fundamentally from this one in that they address circumstances where
an injury is threatened. These cases hold that where the threat of injury
is real, a plaintiff will not be denied standing. Here, however, injury is
alleged to have already occurred. The FHC argues that it suffered injury
12
failure to document the need for corrective education
engendered by the advertisements cited, coupled with the
fact that it has yet to devote any of its resources to pursuit
of an educational campaign, undermines its claim to have
suffered actual injury. The record is devoid of evidence that
the FHC was required to modify any of its services in
response to the objectionable advertisements.
B.
The FHC's claim that it suffered palpable injury when it
was forced to divert resources to investigation also fails for
lack of proof. The "investigation" to which the FHC refers
consisted of having its staff members review classified
advertisements placed in Montgomery and other suburban
Philadelphia newspapers on an ongoing basis for evidence
of discrimination. This investigation is alleged to have
necessitated a diversion of staff resources which could have
been directed to counseling and other organizational
functions. The record fails, however, to establish any
_________________________________________________________________
when it diverted resources to an education campaign. Yet, in the more
than three years following publication of the relevant advertisements, the
FHC has failed to implement the campaign.
The dissent's reliance on Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 261 (1997), to support standing based
on plans alone is also misplaced. In Arlington Heights, a housing
organization generated blueprints and building plans in preparation for
the construction of low-income housing. These plans were thwarted by
the defendant's denial of a zoning request. The Supreme Court held that
where "the challenged action [stood] as an absolute barrier to
constructing the housing that [the plaintiff] contracted to place on the
site" and the planned project was "detailed and specific," the "court
[was]
not required to engage in undue speculation as a predicate for finding
that the plaintiff has the requisite personal stake in the controversy."
Id.
At 261-62. In Arlington Heights, the defendant's thwarting of plans
constituted the injury; the plans could not be effected due to the
defendant's conduct. In this case, by contrast, the record does not show
that the need for an educational effort resulted from or was connected in
any clear way to the six allegedly discriminatory advertisements.
Moreover, the advertisements at issue did not impede the FHC's ability
to implement its educational plan.
13
connection between this investigation and the
538advertisements which form the basis for this suit.
Depositions of members of the FHC staff established that
the purchase of newspapers and review of the classified
sections which comprised the "investigation" went on as
part of the FHC's normal day-to-day operations. This
"investigation" was not motivated by the advertisements at
issue in this suit or by a complaint about advertising. It
was not limited to Montgomery newspapers, and did not
increase or go on longer than it otherwise might have as a
result of the allegedly discriminatory advertising alleged
here.5
The record before us does not establish that the FHC
altered its operations in any way as a result of the allegedly
discriminatory advertisements or diverted any of its
resources to a bona fide investigation. At the summary
judgment stage, bare allegations of injury such as those
based on the "investigation" described are not enough to
establish standing. This is true even where, as here, an
organization holds the status of a private attorney general
charged with enforcing the provisions of the Fair Housing
Act. A private attorney general is subject to the following
rule:
[A]s long as [the private attorney general] suffers actual
injury as a result of the defendant's conduct, he is
permitted to prove that the rights of another were
_________________________________________________________________
5. The "investigation" undertaken here differs dramatically from that
described in Havens. There, the investigation and the allegedly
discriminatory acts were closely linked. Moreover, it was clear that the
organization in Havens did something different as a result of the
particular conduct which was alleged to be illegal. The case before us is
fundamentally different. The record does not support the conclusion that
the FHC in conducting its investigation, responded to the advertisements
at issue or that it would not have undertaken the same investigative
efforts in the absence of these advertisements. Although the dissent's
argument that the "investigation" here was sufficient to impart standing
is appealing, it is simply not supported by the record or by the caselaw.
We cannot conclude, and the dissent does not point to anything in the
record which would allow us to conclude that the"investigation" was
connected in any concrete way to the specific acts of discrimination
alleged in this suit.
14
infringed. The central issue at this stage of the
proceedings is not who possesses the legal rights . . .
but whether [the plaintiffs] were genuinely injured by
conduct that violates someone's . . . rights, and thus
are entitled to seek redress of that harm. . . .
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103
n.9 (1979) (emphasis added).
As the district court found, there is no credible evidence
of injury to the FHC other than the dedication of funds and
other resources to pursuit of this litigation. The FHC
contends that the diversion of resources to litigation is
alone sufficient to confer standing under Article III. We
disagree.
C.
In deciding organizational standing questions after
Havens, appellate courts have generally agreed that where
an organization alleges or is able to show - depending on
the stage of the proceeding - that it has devoted additional
resources to some area of its effort in order to counteract
discrimination, the organization has met the Article III
standing requirement. A number of our sister courts have,
however, adopted different views of whether the injury
necessary to establish standing flows automatically from
the expenses associated with litigation.6 We align ourselves
_________________________________________________________________
6. See Fair Employment Council of Greater Washington, Inc. v. BMC
Marketing Corp., 28 F.3d 1268 (D.C. Cir. 1994) (Havens did not base
standing on diversion of resources but on injury caused to organization's
programs); Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990)
(fair housing organization cannot manufacture the injury necessary to
maintain a suit from its expenditure of resources on that very suit);
Ragin v. Macklowe, 6 F.3d 898 (2d Cir. 1993) (housing organization had
standing to sue based on diversion of resources to pursue litigation and
other legal efforts to counteract the discrimination); Hooker v. Weathers,
990 F.2d 913 (6th Cir. 1993) (fair housing organization had standing
based on investigation using testers and confirmation of facts and
circumstances alleged in complaint); Housing Opportunities Made Equal,
Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991) (injury
may
be found where group must devote additional resources to investigating
and negating impact of discriminatory advertising independent of suit
challenging the advertisements); Village of Bellwood v. Dwivedi, 895 F.2d
1521 (7th Cir. 1990) (to have standing fair housing organization need
only show deflection of time and money from counseling to legal efforts).
15
with those courts holding that litigation expenses alone do
not constitute damage sufficient to support standing.
We are persuaded to take this position by the analysis
set forth by the Court of Appeals for the D.C. Circuit in
Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990).
In Spann, the court of appeals read Havens narrowly,
holding that in order to establish standing, an organization
must point to a "concrete and demonstrable injury to [its]
activities." Id. at 27. The court explained that merely
devoting funds to support a lawsuit will not suffice to
establish an injury within the scope of Article III:
An organization cannot, of course, manufacture the
injury necessary to maintain a suit from its
expenditure of resources on that very suit. Were the
rule otherwise, any litigant could create injury in fact
by bringing a case, and Article III would present no real
limitation.
Id. The Court in Spann summarized the holding in Havens
as follows:
Havens makes clear . . . that an organization
establishes Article III injury if it alleges that
purportedly illegal action increased the resources the
group must devote to programs independent of the suit
challenging the action.
Id. (Emphasis added.)
Under this standard, something more than litigation is
required to establish injury. In Spann, it was the
organization's "expenditures to reach out to potential home
buyers or renters who are steered away from housing
opportunities by discriminatory advertising or to monitor
and to counteract on an ongoing basis public impressions
created by defendants' use of print media" -- expenditures
of a type not made in this case -- which satisfied the injury
requirement of Article III. Id. at 29.
The Court of Appeals for the D.C. Circuit reaffirmed its
commitment to a narrow reading of Havens in Fair
Employment Council of Greater Washington, Inc. v. BMC
Marketing Corp., 28 F.3d 1268, 1277 (D.C. Cir. 1994):
16
[Havens] did not base standing on the diversion of
resources from one program to another, but rather on
the alleged injury that the defendants' actions
themselves had inflicted upon the organization's
programs. To be sure, the Court did mention the "drain
on the organization's resources." Yet this drain
apparently sprang from the organization's need to
"counteract" the defendants' assertedly illegal
practices, and thus was simply another manifestation
of the injury that those practices had inflicted upon
"the organization's non-economic interest in
encouraging open housing" . . . .
The FHC urges us to reject the analysis set forth in
Spann and BMC Marketing and to embrace instead the
result reached by the Court of Appeals for the Seventh
Circuit in City of Bellwood v. Dwivedi, 895 F.2d 1521 (7th
Cir. 1990). In Bellwood, a real estate brokerage firm and
two of its employees were sued for discriminatory practices
alleged to violate the Act. On appeal of a jury verdict in
favor of the plaintiffs, the court considered whether a
nonprofit corporation promoting integrated housing lacked
Article III standing. Relying on the decision in Havens the
court found that the organization did have standing:
Havens makes clear . . . that the only injury which
must be shown to confer standing on a fair housing
agency is deflection of the agency's time and money
from counseling to legal efforts directed against
discrimination. These are opportunity costs of
discrimination since although the counseling is not
impaired directly there would be more of it were it not
for the defendant's discrimination.
Id. at 1526 (emphasis added).
The district court in this matter declined to follow
Bellwood.7 We are convinced that the district court's
_________________________________________________________________
7. We are convinced that the FHC overstates the breadth of the holding
in Bellwood. The holding in Bellwood was not that litigation alone
constituted injury sufficient to convey standing. In Bellwood, the village
undertook a bona fide investigation of a number of real estate agencies
in order to determine whether these agencies were engaged in racial
17
reliance on the position taken in Spann and BMC Marketing
represents the better-reasoned approach. We hold,
therefore, that the pursuit of litigation alone cannot
constitute an injury sufficient to establish standing under
Article III.
In reaching this conclusion, we emphasize that we
have no doubt about the sincerity of [the FHC's] stated
objectives and the depth of their commitment to them.
But the essence of standing "is not a question of
motivation but of possession of the requisite interest
that is, or is threatened to be, injured by the
unconstitutional conduct."
Schlesinger v. Reservists to Stop the War, 418 U.S. 208,
225-26 (1973) (quoting Doremus v. Board of Education, 342
U.S. 429, 435 (1952)).
We emphasize, too, that this holding does not
compromise our commitment to the laudable goal advanced
by the FHC; eliminating discrimination in housing is vitally
important. We cannot agree, however, that this goal should
be attained by an approach which shrinks the Article III
standing requirement to a point where the requisite injury
flows automatically from the burdens associated with filing
a lawsuit. Resort to this extreme position simply is not
necessary. The hurdle raised by the injury element of
established standing principles is not a high one. Fair
housing organizations have regularly and successfully
shown injury in litigating suits designed to eradicate
_________________________________________________________________
steering. The fair housing organization was hired to carry out the testing
by sending both black and white "clients" to the real estate agencies.
When the tests revealed that steering was taking place, the village, the
fair housing organization and the testers filed suit. In holding that the
organization had standing to sue, the Court of Appeals for the Seventh
Circuit held that the organization's "legal efforts" to investigate
steering
were sufficient to confer standing. Litigation plus some other legal
effort
-- there, investigation -- provided the basis for standing. Because the
FHC did not devote time and resources to legal efforts short of
litigation,
to adopt the dissent's argument and find that the injury requirement has
been met in this case would require that we go beyond the result
reached in Bellwood.
18
discrimination illegal under the Fair Housing Act. Our
decision should not restrict or impede in any meaningful
way the ability of these organizations to combat violations
of the Act. Where discrimination does, in fact, occur, it
should not be insurmountably difficult for these
organizations to establish standing either in their own right
or on behalf of their members by referring to well-
established standing principles and adjusting their
pleadings and proof accordingly.
V.
We turn next to the FHC's retaliation claim. In Count II
of the amended complaint, the FHC alleges that
Montgomery violated section 3617 of the Act8 by knowingly
and maliciously creating, publishing in its newspapers, and
mailing to the legislators of the Commonwealth of
Pennsylvania, false statements about the FHC, its actions
and its motivations. The district court granted
Montgomery's motion for summary judgment on this claim,
again on the basis of standing:
[The FHC] has not set forth any evidence indicating
that it has suffered . . . an "injury in fact" from
defendant's newspaper publications or statements to
legislators. The deposition testimony offered by [the
FHC] reveals instead that [it] has not lost any revenue,
income, government contracts, or members as a result
of the publications and statements at issue . . . As[the
FHC] has not established that it has suffered an "injury
in fact" from said publications and statements, this
Court concludes that the FHC does not have standing
to bring this claim.
Fair Housing Council v. Montgomery Newspapers, 1997 WL
5185 at * 9-10.
_________________________________________________________________
8. This section provides that:
It shall be unlawful to coerce, intimidate, threaten or interfere
with any person in the exercise or enjoyment of, or on account of
his
having exercised or enjoyed, or on account of his having aided or
encouraged any other person in the exercise or enjoyment of, any
right granted or protected by [other sections] of this title.
19
We have examined the district court's conclusion in light
of the record and are convinced that the evidence adduced
by the FHC with respect to the retaliation claim was
sufficient to withstand Montgomery's motion for summary
judgment.
In support of its argument that the district court erred in
granting summary judgment on this claim, the FHC directs
our attention to the following excerpt from the affidavit of
James Berry, Executive Director of the FHC:
7. Some of the falsehoods of defendants were
communicated to one of the FHC's primary federal
grant funders, and to fair housing advocates around
the country. As a result, at least in part, of these
falsehoods, [the FHC] was investigated by that primary
federal grant funder, and has been questioned by fair
housing advocates concerning the FHC's practices as to
following the law. [The FHC's] reputation in the fair
housing and grant provider communities has been
damaged.
8. [The FHC has] learned . . . that HUD, who received
defendants' falsehoods, will not renew one of its grants
to [the FHC]. The grant was worth hundreds of
thousands of dollars.
The FHC cites, too, Berry's testimony in deposition that
he was contacted by a representative of the Fair Housing
Initiatives Program (FHIP), a government entity, seeking to
arrange a conference call between Berry and the FHIP
director in order to discuss the substance of lawsuits filed
by the FHC. Berry was informed that:
Somebody in the Department of Housing and Urban
Development had read an article that went out over the
Associated Press containing the lies that Mr. Howe had
testified to in front of the Pennsylvania state
legislature.
The FHIP representative informed Berry that FHIP
personnel had "read about [the FHC] and are very
concerned, they've had inquiries from Congress as well as
the White House." Berry testified that he was then required
to discuss the terms and phrases underlying FHC lawsuits
with FHIP representatives.
20
Without considering any other part of the record cited by
the FHC, we are convinced that there was sufficient
evidence before the district court at summary judgment to
establish a triable issue of fact with respect to the
retaliation claim. Berry's uncontroverted testimony
indicates, at a minimum, that Montgomery's statements in
the press forced the FHC to answer questions posed by
FHIP and to defend the basis for FHC litigation. Through
this testimony, the FHC has offered proof that it sustained
at least non-economic harm which was "concrete" and
"particularized" and "actual" or "imminent." See Lujan, 504
U.S. at 560-61. Accordingly, the district court erred in
granting summary judgment in favor of Montgomery on the
retaliation claim.
VI.
Because we conclude that the FHC succeeded in
establishing an "injury in fact" sufficient to withstand
Montgomery's motion for summary judgment on the section
3617 claims, we will reverse that portion of the order of the
district court granting summary judgment to Montgomery
on these claims. In all other respects, we will affirm the
order of the district court.
21
NYGAARD, Circuit Judge, concurring and dissenting.
I agree that the Fair Housing Council has standing to
assert a claim of retaliation against Montgomery
Newspapers under 42 U.S.C. S 3617. However, I would go
further and also conclude that the FHC has standing to
assert a claim of illegal advertising under 42 U.S.C.
S 3604(c), and that the FHC is injured because it must
divert resources to a large-scale educational campaign to
inform landlords, real estate agents, consumers and the
defendant newspaper itself that discrimination based on
familial status violates the Fair Housing Act. The FHC has
proffered evidence that education is necessary because
housing providers were continuing to write advertisements
that violated 42 U.S.C. S 3604(c), and the defendant itself,
Montgomery Newspapers, was continuing to publish the
illegal advertisements and promote misunderstanding of the
familial status provisions of the Act.
The majority's view of standing is too narrow, and I am
convinced that its opinion will do violence to the law of
standing in this circuit. The majority suggests that to be
injured, the FHC must have either implemented the
educational campaign or submitted a more detailed plan to
the district court. In the alternative, the majority states that
the FHC could have produced a home seeker who was
denied housing, deterred from seeking housing, or formed
a misimpression about housing availability as a result of
the advertisements published in the Montgomery
Newspapers. The majority opines that the FHC did not
demonstrate the need for the educational program and also
failed to show that the plan was implemented. I disagree.
The FHC has submitted a detailed plan for its educational
campaign, within which it describes exactly why the
campaign is a necessary response to the advertisements.
This plan is sufficiently concrete to confer standing.
Furthermore, the FHC does not have to produce an
aggrieved home seeker because it has clearly demonstrated
the need for an educational campaign to counter the
advertisements that were placed by housing providers in
flagrant disregard of 42 U.S.C. S 3604(c).
The majority also concludes that investigation and
litigation costs alone cannot confer standing. Because I find
22
standing for educational costs, it would ordinarily not be
necessary for me to reach this issue. However, I write
separately on this issue as well, because I think that costs
incurred applying legal pressure to a newspaper publishing
illegal advertisements can confer standing.
I. Article III Standing Requirements
A plaintiff organization has standing if it meets the
immutable requirements of Article III, Section 2 of the
Constitution. First, the plaintiff must have suffered an
injury in fact, an invasion of a legally protected interest that
is concrete and particularized, and actual or imminent, not
conjectural or hypothetical. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). Second,
there must be a causal connection between the injury and
the challenged action of the defendant. The injury has to be
fairly traceable to the defendant's actions, and not the
result of the independent action of a party not before the
court. Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.
26, 41-42, 96 S. Ct. 1917, 1926 (1976). Third, it must be
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision. Lujan, 504 U.S. at
561, 112 S. Ct. at 2136; Simon, 426 U.S. at 38, 43, 96 S.
Ct. at 1924, 1926.1 When the Supreme Court considered a
fair housing organization's standing to sue under the Fair
Housing Act, it concluded that Congress intended to
abrogate any additional prudential standing requirements
and allow standing based only upon the constitutional
requirements of Article III. Havens Realty Corp. v. Coleman,
455 U.S. 363, 372, 102 S. Ct. 1114, 1121 (1982) (citing
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103
n.9, 109, 99 S. Ct. 1601, 1609 n. 9, 1612 (1979)).
Havens held that the plaintiff organization had standing
to sue because the activity that allegedly violated the Fair
Housing Act perceptibly impaired its counseling and
referral services. This impairment met the "injury in fact"
_________________________________________________________________
1. The district court only addressed the first element of standing,
holding
that the FHC did not show Article III injury. Accordingly, I do not
address the final two elements of causation and redressability, although
I will point out that those two elements are clearly present here.
23
test because a concrete and demonstrable drain on
resources is a more plausible injury than a conjectural
"setback" to an organization's abstract social interests. Id.
at 379 (distinguishing Sierra Club v. Morton, 405 U.S. 727,
92 S. Ct. 1361 (1972)). Following Havens, the Courts of
Appeals have agreed that a fair housing organization will
have standing to challenge a newspaper's advertising
practices under 42 U.S.C. S 3604(c) if it can demonstrate
that the newspaper's discriminatory advertising caused the
organization to divert resources to identify and negate the
impact of those advertisements. See, e.g., Fair Employment
Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28
F.3d 1268, 1276-77 (D.C. Cir. 1994); Housing Opportunities
Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644
(6th Cir. 1991); Spann v. Colonial Village, Inc., 899 F.2d 24,
27 (D.C. Cir. 1990). The FHC has clearly met this burden.
The Circuits are split, though, as to whether the
diversion of resources solely for litigation and investigation
activities can confer standing. Compare Spann, 899 F.2d at
27 (D.C. Cir. 1990) (litigation costs cannot confer standing),
with Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898,
905 (2d Cir. 1993) (finding standing based on staff time
spent exclusively on litigation), and Hooker v. Weathers,
990 F.2d 913, 915 (6th Cir. 1993) (investigation to confirm
facts in complaint insufficient to confer standing), and City
of Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982
F.2d 1086, 1095 (7th Cir. 1992) (legal efforts directed
against discrimination are sufficient to impart standing).
The majority holds that the litigation and investigation
costs cannot confer standing. I disagree and would hold
that in some situations, like this case, they can constitute
an Article III injury.
II. Educational Injury
A. Sufficiency of Evidence
As explained above, the courts interpreting Havens agree
that the diversion of resources to educational programs is
sufficient to impart Article III standing. See, e.g., Spann,
899 F.2d at 27. A "concrete drain on time and resources is
sufficient to satisfy Article III's injury in fact requirement."
24
Spann, 899 F.2d at 29. An "identifiable trifle" of this type of
injury will suffice to confer standing upon the FHC.2 United
States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417
n.14 (1973) (rejecting the argument that standing should be
limited to those significantly injured, and ruling that any
level of injury is sufficient to confer standing). Accordingly,
to demonstrate "educational injury," the FHC must only
raise a genuine issue of material fact that its plan to
educate the real estate industry and consumers will be a
concrete and demonstrable drain on its resources, and that
such education is necessary to counter the illegal housing
advertisements.
The FHC has presented sufficient evidence of injury to
compel my conclusion that Montgomery Newspapers is not
entitled to judgment as a matter of law. James Berry, the
executive director of the FHC, described the campaign by
which the FHC will attempt to educate real estate
professionals. Berry also stated that the FHC will have to
spend almost $100,000 in newspaper advertising to counter
Montgomery News' discriminatory messages. Jan Chadwick,
Assistant Director of the FHC, explained that the FHC has
formulated "an educational plan that would educate both
the public and the industry what the proper Fair Housing
laws are . . . to reverse the damages [caused by
discrimination] in the whole region, specifically families
with children." This explanation mirrors FHC's allegation
that
"each act of discrimination conducted in the Delaware
Valley causes a setback to the good work accomplished
by the FHC's educational and outreach efforts and to
the development of an integrated housing community.
As a result, the FHC must launch further efforts to
undo the damage that the discrimination has caused."
_________________________________________________________________
2. We do not confuse this with a "scintilla of evidence" which is
unquestionably insufficient to defeat a motion for summary judgment.
Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2512
(1986). In this case, the FHC has presented sufficient evidence to allow
a reasonable jury to return a verdict in its favor on the issue of
standing
to sue under the Fair Housing Act.
25
(Pl.'s Am. Comp. P 10.) The FHC also prepared a detailed
plan entitled "Appellants' Statement of Proposed Education-
Repair Campaign." The purpose of the plan is to reach,
among others, consumers, housing providers, and real
estate professionals to counteract advertisements that leave
readers believing that it is legal to turn away families with
children. The "Proposed Plan" explains what the FHC
alleges: a large-scale educational campaign is necessary
because the continued publication of illegal advertisements
causes an "overwhelming misunderstanding" about the Act.
The Plan is specific to the extent that it contains sample
advertisements to be placed in Montgomery Newspapers,
the frequency of planned publication, a proposed budget for
executing the Plan, and details of educational efforts other
than newspaper advertisements.
The majority states that the only evidence relating to the
educational effort produced by the FHC was "an allegation
that, at some future time, it would be required to spend
almost $100,000 in newspaper advertising and more than
$300,000 in seminars and mailings to reach consumers to
counter the advertisements' discriminatory message." This
statement is incorrect, based on the substantial record
evidence.
B. The need for corrective action
The majority's conclusion crumbles upon examination of
the entire Proposed Plan and explanations of the FHC staff,
discussed above. By focusing only on the necessity to
educate home seekers and consumers, the majority
overlooks an entire segment of the FHC's mission: to
educate publishers and housing providers. Montgomery
Newspapers published discriminatory ads, which itself
demonstrates that housing providers and the newspaper do
not understand the terms of the Fair Housing Act. Because
the FHC aims to ensure compliance by education, it must
now divert resources to redress that damage. Thus, I am
compelled to conclude that the FHC has suffered the
requisite "identifiable trifle" of injury to its educational
programs.
The FHC has demonstrated that its educational plan is a
necessary response to correct the discriminatory
26
advertisements published by Montgomery Newspapers. The
"Proposed Plan" explains that, among others, real estate
professionals are ignorant of the family status provisions of
the Fair Housing Act. Advertisements that contain
comments such as "no children or pets," and "professional
male need only apply" exemplify this ignorance. The FHC
intends to reach consumers to explain the Fair Housing
Act. However, the majority fails to recognize that the FHC
also plans to explain Fair Housing Act compliance to
housing providers and real estate professionals, who place
and read advertisements in Montgomery Newspapers and
perpetuate discriminatory advertising.
The majority suggests that the FHC would have satisfied
standing requirements if it could show that home seekers
have actually been barred from housing, deterred from
seeking housing, or formed a misimpression about housing
availability as a result of the advertisements published in
the Montgomery Newspapers. This is simply incorrect. An
aggrieved home seeker is not necessary to show a violation
of section 3604. Housing providers and newspapers violate
42 U.S.C. S 3604(c) upon publication. The Fair Housing Act
expressly empowers organizations like the FHC to enforce
its provisions without joining a home seeker as a co-
plaintiff, 42 U.S.C. SS 3602, 3613, in the federal district
courts, 42 U.S.C. S 3613(a)(1)(A), to seek the award of
actual or punitive damages or the grant of permanent or
temporary injunctive relief. 42 U.S.C. S 3613(c)(1).
C. Imminent and Concrete Injury
The FHC has successfully adduced facts to show concrete
injury that is certainly impending, as required by Lujan.
504 U.S. at 564. The majority concludes that the FHC
would be injured if it already implemented the educational
program. This is not correct. The cases are legion
supporting a conclusion that the FHC is not required to
actually pay for the advertising campaign before it can
assert standing. See, e.g., Pennell v. City of San Jose, 485
U.S. 1, 8, 108 S. Ct. 849, 855 (1988) (holding that because
it is not unduly speculative to conclude that the ordinance
at issue will be enforced against members of the
Association, this is a sufficient threat of actual injury to
satisfy Article III); Babbitt v. Farm Workers, 442 U.S. 289,
27
298, 99 S. Ct. 2301, 2308 (1979) ("A plaintiff who
challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute's
operation or enforcement."); Duke Power Co. v. Carolina
Envtl. Study Group, 438 U.S. 59, 98 S. Ct. 2620 (1978)
(Plaintiff alleged that, if constructed, the power plant's
operation would cause the emission of radiation. The Court
held that the plaintiff's alleged injury was sufficiently
concrete to confer standing.); Pennsylvania v. West Virginia,
262 U.S. 553, 593, 43 S. Ct. 658, 663 (1923) ("[O]ne does
not have to await the consummation of threatened injury to
obtain preventive relief. If the injury is certainly impending,
that is enough."); Roe v. Operation Rescue, 919 F.2d 857,
964-65 (3d Cir. 1990) (holding that clinics not actually
blockaded by defendant organization had standing because
the threat that defendants would blockade the clinics in the
future was real and immediate); Public Interest Research
Group, Inc. v. Powell Duffryn, 913 F.2d 64, 71 (3d Cir.
1990) (plaintiffs' asserted injury, that they would use the
water for boating and aesthetic enjoyment if it was not
polluted, was sufficient to confer standing, even though
they had not used the water in its polluted state).
The FHC also satisfies Lujan by setting forth concrete
plans for its educational program. The majority categorizes
the FHC plan as the "some day" intentions prohibited by
Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2138, and
suggests that the FHC has proffered no concrete plans or
specifications as to when the plans will be carried out. I
disagree. In Lujan, the Supreme Court suggested that had
the plaintiffs actually purchased a plane ticket, their plans
to observe the endangered species would not be "some-day
intentions." Id. Here, the plan submitted by the FHC is
more extensive and expensive than the mere plane ticket in
Lujan.
Moreover, the majority's conclusion is at odds with the
Supreme Court's holding in Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., wherein mere blueprints
and building plans were sufficient to confer standing on a
non-profit housing organization. 429 U.S. 252, 261, 97 S.
Ct. 555, 561 (1977). The housing organization in Arlington
Heights planned to build low income housing to further its
28
interest in making low cost housing available in areas
where it was scarce, but its plans were thwarted when the
local government denied its zoning request. The Court held
that the organization's plans to build, and its related goals,
were not an abstract concern and provided the essential
dimension of specificity required to determine standing at
trial. Id. at 263. The situation of the FHC is analogous. The
FHC plans to educate the public that discrimination based
on familial status is illegal. That plan is equally specific and
detailed, and therefore sufficient to confer standing.
III. Investigation Injury
The FHC also adduced evidence sufficient to confer
standing for a 42 U.S.C. S 3604(c) violation based on the
costs to investigate the housing advertisements in the
Montgomery Newspapers. alleged in the complaint
constitute injury for standing purposes). Havens found
"injury in fact" when a fair housing organization had to
divert resources to "identify and counteract" discriminatory
practices. 455 U.S. at 379, 102 S. Ct. at 1124. Like
"educational injury," the courts following Havens agree that
costs incurred investigating violations of the Fair Housing
Act can confer standing. See, e.g., Hooker v. Weathers, 990
F.2d 913, 915 (6th Cir. 1993) (costs incurred in the
investigation to confirm the facts and circumstances).
The majority erroneously concludes that the FHC
investigation cannot confer standing because it was a
regular part of the day-to-day operations of the
organization. It cites "depositions of FHC staff" in support
of this conclusion. Indeed, there was some suggestion in
the deposition of Jan Chadwick that reviewing housing
advertisements was a regular matter of business for FHC
staffers. However, based on the evidence, one could also
reasonably conclude that the FHC investigation followed
violations of 42 U.S.C. S 3604(c), and because of repeated
violations, became a daily function of the FHC. For
standing purposes, we look only for an "identifiable trifle" of
injury, so the FHC need only submit evidence to create a
genuine issue of whether it diverted the slightest amount of
additional time to read the Montgomery Newspapers. U.S. v.
Students Challenging Regulatory Agency Procedures, 412
29
U.S. 669, 689 n.14, 93 S. Ct. 2405, 2417 n.14 (1973). I
believe they have met this burden.
The FHC made a specific showing of its increased efforts
to identify and eventually counteract discriminatory ads
under 42 U.S.C. S 3604(c). The record shows that
investigation efforts began in 1989, when the FHC began
reviewing the housing advertisements in the Montgomery
Newspapers. The investigation was prompted by the FHC's
discovery that despite a recent amendment to the Fair
Housing Act, local papers did not comply with the
provisions prohibiting discrimination on the basis of family
status. The FHC filed charges with the Pennsylvania
Human Relations Commission and the Department of
Housing and Urban Development, but the illegal
advertisements continued. The graph submitted by the FHC
shows that the FHC devoted more resources to identify the
discriminatory advertisements in the Montgomery
Newspapers than it would have normally directed toward
simply reviewing housing advertisements. The FHC also
proffered the affidavit of Executive Director James Berry
explaining the increased investigative efforts, and this was
supported by the materials charting the resources
dedicated to investigating the housing advertisements in
the Montgomery News.
Counsel for Montgomery Newspapers suggested during
oral argument that the FHC could have sent testers to
determine whether the ads were placed with the intention
of discrimination on the basis of familial status. Certainly,
that was one potential investigatory technique available to
it. However, no one technique is required to establish
standing. A violation of section 3604(c) occurs upon
publication. This is distinguishable from a violation of
section 3604(d), which occurs when misleading information
is given to a tester. Naturally, one method of identifying
violations under section 3604(c) is to read the newspaper.
FHC did just that, and its efforts were intended to identify
the pattern and practices of discriminatory conduct and to
counteract it through legal pressure and education.
Congress intended to confer broad rights to enforce the
Fair Housing Act. See Havens, 455 U.S. at 374 n.14, 102
S. Ct. at 1122 n.14. For example, a tester may pose as a
30
prospective purchaser, expect unlawful practices based on
race, and have standing to sue under 42 U.S.C. S 3604(d)
if the housing provider misrepresents the availability of
housing. This is distinguishable from 42 U.S.C. S 3604(a),
which requires a bona fide offer for housing to present a
claim of a discriminatory refusal to sell or rent. However,
like the tester provision, there is no "bona fide" requirement
for enforcement of the advertisement provision.
Nevertheless, the majority suggests that the investigation
must be motivated by a complaint about advertising in the
Montgomery Newspapers. This is not correct. Independent
investigations not initiated by complaints were also a part
of the regular activities of the fair housing organization in
Havens. In Havens, the organization's activities included:
"conducting independent investigations of real estate
brokers located in the metropolitan area to determine
whether housing is being made available without
regard to race; and taking appropriate steps to
eliminate any racial discriminatory housing practices it
may have found to exist."
Coles v. Havens Realty Corp., 633 F.2d 384, 385 (4th Cir.
1980), aff'd sub. nom. Havens Realty Corp. v. Coleman, 455
U.S. 363, 102 S. Ct. 1114 (1982). The Court of Appeals for
the Fourth Circuit concluded that the drain on resources
necessary to identify violations of the Fair Housing Act is
sufficient to confer standing, irrespective of whether such
investigation was motivated by a complaint.
IV. Litigation Injury
The FHC's "litigation injuries" in the form of attorneys'
fees to bring this case are insufficient to impart standing
under the Fair Housing Act, especially since the act
provides for recovery of attorneys' fees. 42 U.S.C.
S 3613(c)(2). My agreement with the majority stops there.
Havens did not specifically decide whether the costs of
litigation or enforcement of the Fair Housing Act are
sufficient to confer standing. Arguably, this activity would
fall under the category of activities intended to "counteract"
discrimination. Courts from the Second and Seventh
31
Circuits have read Havens to confer standing even when
resources are diverted for litigation purposes only. See, e.g.,
City of Chicago v. Matchmaker Real Estate Sales Ctr., Inc.,
982 F.2d 1086, 1095 (7th Cir. 1992); Village of Bellwood v.
Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990); Ragin v.
Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir.
1993). The majority does not find these cases persuasive,
instead relying on the Court of Appeals for the District of
Columbia Circuit's conclusion that litigation costs alone
cannot confer standing because it would allow litigants to
achieve manufactured, or "purely self-referential injury" by
merely filing the complaint. Fair Employment Council of
Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d
1268 (D.C. Cir. 1994); Spann v. Colonial Village, Inc., 899
F.2d 24 (D.C. Cir. 1990).
In my opinion, the FHC has standing, even under the
Court of Appeals for the District of Columbia Circuit's
holdings, because many activities that fall between
investigation and litigation can confer standing under
Havens. For example, in this case, the FHC chose many
non-litigation methods to apply legal pressure upon the
Montgomery Newspapers to enforce the Fair Housing Act.
The FHC filed a complaint with the Pennsylvania Human
Resources Commission. In addition, the FHC attempted to
notify the newspaper of its violations of section 3604 (c). My
conclusion to confer standing upon fair housing
organizations for enforcement activities, other than the
filing of the lawsuit, does not conflict with the Court of
Appeals for the D.C. Circuit's cases that the majority finds
persuasive. BMC Marketing and Spann only prohibit
conferral of standing from the act of filing the lawsuit.
My conclusion is also entirely consistent with the policies
of the Fair Housing Act. First, Congress intended that
groups like the FHC take action to enforce the provisions of
the Fair Housing Act. If we do not recognize the efforts that
precede litigation as injury, we will cramp the options now
open to fair housing organizations that are laboring to
counteract discrimination. Large scale, long term pre-
litigation efforts that draw from program resources should
constitute injury for standing purposes even if they
culminate in litigation. Second, I see little danger that
32
plaintiffs may "manufacture standing" in the context of the
Fair Housing Act. It is not that easy. The greater danger is
exaggerating the risk of nullifying Article III, and thereby
eviscerating the statutory scheme of the Fair Housing Act,
which clearly relies upon private enforcement to ensure
compliance.
The FHC correctly states that the Fair Housing Act relies
upon private attorneys general to enforce its provisions. See
42 U.S.C. S 3613;3 Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 210-211, 93 S. Ct. 364, 367-68 (1972)
(noting the paucity of statutory remedies); Hooker v.
Weathers, 990 F.2d 913, 915 (6th Cir. 1993) (finding
standing under Havens due to the increase of resources
devoted to programs independent of its suit challenging the
action); Housing Opportunities Made Equal v. Cincinnati
Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991) ("Courts
have given a broad reading to the FHA in order to fulfill its
remedial purpose."). Accordingly, we have an obligation to
address the issue of standing (pursuant to "litigation
injuries") so as to fulfill the private enforcement provisions
of the Fair Housing Act. "We can give vitality to [The Fair
Housing Act] only by a generous construction which gives
standing to sue to all . . . who are injured by . . .
discrimination . . . within the coverage of the statute."
Trafficante, 409 U.S. at 212, 93 S. Ct. at 368. We should
carefully consider which "litigation injuries" confer standing
to maintain the integrity of Article III, while still allowing
fair housing organizations to fulfill their role as private
attorneys general. Spann, 899 F.2d at 30 (citing Trafficante,
_________________________________________________________________
3. A violation of the Fair Housing Act does not constitute per se injury
to
a fair housing organization. The FHC is mistaken, to the extent that it
reads Bennett v. Spear to confer standing without meeting Article III
requirements. ___ U.S. ___, 117 S. Ct. 1154 (1997). Bennett discusses
the "zone of interest test," a jurisprudential test for standing, which
applies above and beyond the Article III. Id. at 1160 (stating Article III
is
an irreducible constitutional minimum). The "zone of interest test" does
not apply to standing to pursue an action under the Fair Housing Act.
Trafficante v. Metropolitan Life Ins. Co., 409 US. 205, 209, 93 S. Ct.
364,
367 (1972). Despite its misinterpretation of Bennett, the Council has
struck on an important point regarding their role in ensuring compliance
with the Fair Housing Act.
33
409 U.S. at 211, 93 S.Ct. at 368). As explained above, I
believe I have done so in this case: allowing the FHC's
investigations and legal pressure, applied through letters or
administrative proceedings to confer standing, but rejecting
the theory that the FHC's costs to file this lawsuit can
impart standing.
Finally, we cannot overlook the will of the legislature in
determining whether the FHC has standing to sue. Havens,
455 U.S. at 373, 102 S. Ct. at 1121. The injury "required
by Article III may exist solely by virtue of `statutes creating
legal rights, the invasion of which creates standing.' " Id.
(citing Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197,
2205 (1975)). "The policies of the Act and the concrete
injuries alleged by the plaintiff organizations thus
intertwine to support plaintiffs' standing to bring this suit."
Spann, 899 F.2d at 31 (citations omitted). Congress
specifically endorsed the values that the FHC seeks to
enforce and their methods of enforcement, in the Fair
Housing Act:
"The Congress finds that (1) in the past half decade
there have been major legislative and administrative
changes in Federal fair housing and fair lending laws
and substantial improvements in the Nation's
understanding of discrimination in the housing
markets; . . . (9) the proven efficacy of private nonprofit
fair housing enforcement organizations and
community-based efforts makes support for these
organizations a necessary component of the fair
housing enforcement system."
Fair Housing Act of 1968, Pub. L. No. 102-550, Section
905(a), 106 Stat. 3869 (1992).
In sum, we should not so fear the possibility of
"manufactured standing" that we set barriers artificially
high and thereby nullify the private enforcement provisions
of the Fair Housing Act.
V. Conclusion
For all the foregoing reasons and upon all the foregoing
grounds, I conclude that the FHC has standing to advance
34
a claim under 42 U.S.C. S3604(c). I would give the FHC its
day in court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
35