Tri-Corp Housing Incorporated v. Robert Bauman, 826 F.3d 446

Background

Tri-Corp Housing, a nonprofit providing low-income housing for mentally disabled persons in Milwaukee County, faced foreclosure by its primary lender, the Wisconsin Housing and Economic Development Authority.
Tri-Corp sued several third parties in state court; all third-party claims failed except those against alderman Robert Bauman, who removed the remaining claims to federal court.
Tri-Corp alleged Bauman used public statements and lobbying (criticizing Tri-Corp to zoning boards, the press, and city agencies) to interfere with its contracts and to violate the Fair Housing Act, the Rehabilitation Act, and the ADA, and sought to proceed under 42 U.S.C. § 1983.
The district court dismissed Tri-Corp’s § 1983-based claims, holding § 1983 cannot be used to expand or override the private enforcement schemes and defendant categories set out in the Rehabilitation Act and the ADA.
The Seventh Circuit affirmed: (1) § 1983 cannot be used to alter who may be sued under the Rehabilitation Act or ADA; and (2) Bauman’s speech and lobbying are protected by the First Amendment and the Noerr-Pennington doctrine prevents liability for petitioning government unless a sham or independent-cost exception applies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1983 may be used to enforce the Rehabilitation Act or ADA against an alderman and expand statutory defendant categories	§ 1983 can provide a remedy where the statutes’ protections are implicated even if those statutes do not list the defendant category Tri‑Corp seeks to sue	§ 1983 cannot override statutory remedial schemes that specify who may be sued; courts have rejected using § 1983 to expand defendant categories under those acts	Denied — § 1983 cannot be used to alter or expand defendant categories under the Rehabilitation Act or ADA
Whether Tri‑Corp may sue under § 1983 for alleged Fair Housing Act violations based on Bauman’s speech and lobbying	Speech and lobbying caused harm and aided foreclosure; Fair Housing Act claims may be pursued via § 1983	Bauman’s conduct was political speech/petitioning protected by the First Amendment and Noerr‑Pennington; Fair Housing Act does not displace that protection	Denied — speech and lobbying are protected; Noerr‑Pennington bars liability absent a sham or independent-cost exception
Whether the Fair Housing Act displaces First Amendment petitioning protections	Tri‑Corp implied the FHA could reach conduct producing discriminatory effects even if expressed via speech	FHA contains no language that displaces Noerr‑Pennington or First Amendment protections for petitioning government	Denied — Court sees no statutory displacement of petitioning protections in the FHA
Whether Tri‑Corp’s allegations fit an exception (sham or independent-cost) to Noerr‑Pennington	Tri‑Corp did not allege Bauman engaged in sham petitioning or caused independent costs separate from governmental action	Bauman argued Tri‑Corp alleged only protected petitioning and public criticism, not sham or independent-cost conduct	Denied — Tri‑Corp did not plead facts invoking Noerr‑Pennington exceptions

Key Cases Cited

New West, L.P. v. Joliet, 491 F.3d 717 (7th Cir.) (Fair Housing Act claims can implicate Noerr‑Pennington when government officials petition other public bodies)
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) (§ 1983 may enforce some federal statutes that lack comprehensive remedial schemes)
Blessing v. Freestone, 520 U.S. 329 (1997) (standards for determining when a federal statute creates enforceable rights via § 1983)
Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (limitations on using § 1983 to override statutory frameworks)
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) (private enforcement limited where Congress established specific remedial scheme)
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961) (petitioning immunity for efforts to influence government action)
United Mine Workers v. Pennington, 381 U.S. 657 (1965) (extension of Noerr petitioning doctrine)
BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (recapitulation of Noerr‑Pennington doctrine)
Bloch v. Frischholz, 587 F.3d 771 (7th Cir.) (analysis of who may bring claims under Fair Housing Act provisions)