Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc.

сoncurring Judge, filed a Ryan, Circuit III. Conclusion opinion. reasons, find no foregoing For the BIA’s dismissal of discretion

abuse and we Weerasinghe’s reopen, motion to

deny petition review. INC., COUNCIL,

FAIR HOUSING al., Plaintiffs-Appellees,

et ANDREWS, OF OLDE

VILLAGE ST. al.,

INC., et Defendants-

Appellants.

No. 05-5862. Appeals,

United States Court of

Sixth Circuit.

Dec.

470

velopments. appeals, Defendant WKB ar- (1) guing that Plaintiffs lack (2) sue, even if the Plaintiffs had stand- limitations ing, applicable statute of (3) claim, and bars their that the district court error in failing committed to allow compliance Defendant demonstrate by means than by those set forth 44 guidelines. Fed.Reg. HUD at 9472- follow, 9515. For the reasons that part part AFFIRM in and in REVERSE of the district decision court.

I. Background Barber, Ebendorf, Banaszyn- Thomas A. Fair Housing oper- The Plaintiff Council Associates, Louisville, KY, Stephen &ski nonprofit corporation ates as a to promote Dane, Associates, Tony M. Reiman & for, equal housing availability oth- among Baize, Council, Housing Perrysburg, ers, individuals. The for disabled Center OH, for Plaintiffs-Appellеes. Living nonprofit is a corpora- Accessible Walsh, Tilford, IV, Dobbins, William J. independent tion that advocates for living Alexander, Black, Louisville, Buckaway & people. disabled KY, for Defendants-Appellants. Defendant-Appellant The is a WKB Kentucky corporation that builds es- real RYAN, COOK, BEFORE: Circuit developments, principally tate in Louis- Judges; GWIN, Judge.* and District ville, 2001, Kentucky. Between 1993 and GWIN, Judge. District multifamily WKB constructed three housing developments at issue in case. Housing Plaintiffs Fair Council and developments Village Those include the allege for Living Center Accessible Andrews, the Village Olde St. of Deer Defendants, Village Olde St. Creek, and Greenhurst Condominiums. Andrews, Inc., Associates, Inc., Brown, in engaged disability Kenneth R. construction, ‍‌‌​​​‌​​​‌​‌​‌‌‌​‌‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​​‌‌​​‌‌​‌‌‍Housing After the Fair design discrimination their and con- steps leading Council resi- observed of multifamily struction residential devel- at the Defendant St. dences Olde In opments. support allegation, of this it believed violated Andrews say designed Plaintiffs Defendants Thereafter, Housing Act. the Fair Hous- constructed residences that were not ac- ing employed Council disabled individuals to handicapped persons cessible as re- inspect property to enter and for Fair quired Housing Amendments for Act violations. The Housing Center (“Fair Act”). Act Living provided these “testers” Accessible trained, trial, and the Fair Council

After the district court concluded identify- paid, Defendants dis- and debriefed them. After engaged unlawful violations, ing potential crimination and ordered the Defendants to number remedial on the de- Fair and the perform construction Council Center * Gwin, Ohio, sitting by designation. Honorable United States James S. Judge District for the District of Northern Andrews, City Tiffin, 150 F.3d ghenbaugh v. St. Living sued Olde Accessible n WKB, (6th Cir.1998) architect, Lib- (citing development’s Anderson Inc., later Brown. Plaintiffs added Kenneth erty Lobby, (1986)). against Condomini- claims the Greenhurst S.Ct. Creek, two the of Deer ums and has party the moving deciding whether by complexes designed Brown burden, the view a court must met this trial, by set- owned WKB. Before Brown from them all inferences drawn facts and him. against claims made tled the the nonmov- in the most favorable to light Co., v. S.H. Kress & ing party. Adickes judgment, the summary In motions for 1598, 144, 158-59, 26 398 90 S.Ct. argued Plaintiffs lacked U.S. Defendants that (1970). of standing to sue and that the statute L.Ed.2d 142 as stopped against the claims limitations III. Discussion Additionally, the Defendants

Greenhurst. op- had argued that should have the Defendant-Appellant appeal, With this compliance to portunity demonstrate the erred that district court argues byAct means other than standing in the Plaintiffs have finding that by guidelines. the HUD provided those of it found that the statute and erred when summary judg- court denied The district Plaintiffs’ does not bar the limitations ment, finding precedent that Circuit Sixth ar- Additionally, claims. the Defendants trial gave After a bench resulted inap- gue district court afforded that the Plaintiffs, appealed. a decision "WKB propriate guidelines to the deference HUD appeal, its With the Defendant determining when whether or not WKB’s holding that the district erred in court the housing developments complied with sue, standing Plaintiffs had argu- Act. We address each of statute limitations barred Plaintiffs’ ment below. part, that the claims district court

overly building guide- deferred to HUD’s A. Standing arguments. lines. We now consider these III Consti Article of United States jurisdiction tution this Court. limits of II. of Review Standard Speсifically, Article III 2 confers federal review court’s We district denial jurisdiction over “cases” and “controver summary judgment de novo. Frazier v. Standing important is an sies.” element Inc., 563, Am. 431 Mfg., Honda F.3d controversy To requirement. the case or (6th Cir.2005). Summary judgment is 565 III, standing Article demonstrate under only appropriate when evidence sub allege plaintiff personal must “[a] there is no genuine mitted shows “that fairly alleged traceable to defendant’s any fact and issue as material be re ly likely conduct unlawful moving party judgment is entitled to a as a requested Allen by dressed relief.” 56(c). of law.” matter Fed.R.Civ.P. 737, 3315, Wright, 468 U.S. seeking summary judgment, moving (1984). Raines v. L.Ed.2d 556 See also party showing has initial burden 811, 818-19, 117 Byrd, 521 U.S. S.Ct. genuine of a issue of material fact absence (1997). 138 to an essential element of the nonmov Typically, inquiry does City case. ing party’s Waters v. Mor (6th Cir.2001). III In- ristown, requirements. end with the Article stead, plaintiff even where can show A fact material if its resolution will Dau- within constitutional affect outcome of lawsuit. case falls these bounds, pleadings must also overcome court’s review of whether prudential barriers on the of fed- exercise summary and affidavits at the time of the Seldin, jurisdiction. eral Warth v. 422 judgement motion demonstrated the need U.S. S.Ct. 45 L.Ed.2d for a trial.” (1975). However, prudential because policy Recognizing that rational jurisdiction judicially limitations on are always have apply, does not subse- self-imposed constitutionally rather than mandated, Congress has power quently gen- carved out exceptions prudential waive barriers statute. example, eral rule. For in McPherson v. Bellwood, Gladstone v. Village Realtors Kelsey, appeal we held that a movant can 91, 100, 1601, 441 99 U.S. S.Ct. L.Ed.2d 60 of summary judgment the denial even af- (1979) (“Congress 66 may, by legislation, losing ter a trial on merits where the expand standing to full permit- extent appeal law, purely issue on is one of such Ill, by ted thus permitting litigation Art. 989, governmental immunity. 125 F.3d by one ‘who otherwise would be barred (6th Cir.1997). 995 Other circuits have ”) prudential standing (quoting rules.’ similar recognized exceptions. See Banue- 2197). Warth, 501, 422 U.S. 95 S.Ct. Funds, los v. Trust Const. Laborers’ 382 Act, regard the Fair Housing With to Con- 897, (9th ‍‌‌​​​‌​​​‌​‌​‌‌‌​‌‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​​‌‌​​‌‌​‌‌‍Cir.2004) (“This 902 general F.3d gress a has made decision to afford stand- rule, however, apply to does not those ing litigants to all within the Constitutional summary judgment of denials motions Realty limits. v. Corp. See Havens Cole- district made an where the court error of man, 363, 372, 1114, 71 455 U.S. 102 S.Ct. that, (1982); Gladstone, made, if required 214 law have L.Ed.2d Realtors v. would Bellwood, 9, 91, 441 103 n. U.S. motion.”); court to grant district of (1979). 1601, 99 S.Ct. 60 L.Ed.2d As a 66 Savings Home America United result, plaintiffs the instant case (re- States, (Fed.Cir.2005) 399 F.3d 1341 satisfy only requirements need Article III a district viewing gov- court’s denial in order to standing. demonstrate summary judgment motion for ernment’s for after a standing lack even final 1. Circuit Court’s Power Review to on judgment the merits entered for was Issue Standing plaintiffs). matter, argue As an initial the Plaintiffs summary judgment that denial of is not find, however, that there is no need We where, case, appealable as in the instant now for us to determine whether or not we “summary judgment and the denied may the district appropriately review full subsequently movant loses a trial after motion court’s denial Defendant WKB’s on the ...” Epperly, merits Jarrett v. 896 summary regard judgment with to the (6th Cir.1990) 1013, (citing F.2d 1016 Lo may always issue court This Legal Corp., cricchio v. Services standing, irregardless the issue of address (9th Cir.1987); 1352 Glaros v. H.H. Rob of the lowеr court’s treatment of that is- Co., (Fed.Cir.1986)). ertson F.2d 797 1564 Williamsport sue. Bender v. Area See Jarrett, 1, In F.2d at 1016 n. found 896 Dist., 541, 534, 475 106 School U.S. S.Ct. despite may the harm that flow from (1986) (“[Ejvery fed- wrongful summary allowing denial of appellate special obligation eral court has a unreviewed, judgment go “it would be ‘satisfy jurisdic- only itself not its own unjust deprive even more of a party tion, also in a but that of the lower courts jury fully verdict after evidence was ”) presented, appellate (quoting review.’ Mitchell v. on basis of an cause under Standing Under the Organizational a. Maurer, 293 U.S. Housing Act Fair (1934)). L.Ed. 338 dealt Supreme Court States The United Erred in the District Court 2. Whether organizational the issue of had Determining the Plaintiffs Act in Havens under the Standing Coleman, 363, 102 Corp. v. Realty (1982). In that 71 L.Ed.2d S.Ct. Plain- WKB Defendant brought housing organization a fair standing to sue because tiffs lack alleging realty corporation, against a suit any injury to demonstrate Plaintiffs fail in violation of the steering” “racial that is litigation independent of the instant Housing Act of U.S.C. allegedly discrimina- fairly traceable housing organiza fair complaint, Respond- Defendants. tory actions of the HOME, it had “been tion, alleged that claim that their investi- ing, the Plaintiffs steering racial by defendant’s frustrated at the disability into discrimination gation ac equal to assist in its efforts practices to divert caused them properties counseling and through cess from institutional resources substantial had to ... [and] other referral services or standard activities. projects other identify and significant resources devote on sum Addressing arguments these racially [sic] the defendant’s counteract found the district court mary judgment, Id. discriminatory steering prаctices.” present failed to suffi that the Plaintiffs 378, that HOME Arguing 102 1114. S.Ct. their claim that support cient evidence to moved to standing, the defendant lacked funds for the forced to divert were granted court The district dismiss. to the detriment of oth investigation WKB motion, allege finding that HOME failed However, applying this Cir projects. er to confer stand injury sufficient a direct Weathers, in Hooker v. 990 cuit’s decision and Court reversed ing. Supreme (6th Cir.1993)1 , 913, the district F.2d 915 wrong, stating: that the dismissal was held reluctantly that the Plaintiffs’ court found [i]f, broadly alleged, petitioners’ investigation expenses related prelitigation im- perceptibly have steering practices that the Fair to the three testers ability provide coun- HOME’S paired properties to the were Council sent WKB services for low-and seling and referral standing. homeseekers, confer Defendant sufficient to there moderate-income argues that we should overturn organiza- now question WKB no can be alternative, In the claims in fact. Such injury Hooker. suffered tion has injury to fairly distinguishable from and demonstrable that Hooker is concrete activities—with organization’s and that even under the instant case organization’s on the Hooker, consequent drain standing. Plaintiffs lack (1990)). Therefore, According com standing by to the FHCS "can establish Housing Contact Service con plaint, "Fair injury, alleging and demonstrable a concrete investigation, and confirmed ducted an 'purported including injury arising from alleged [in the com facts and circumstances ly illegal action increases the resources [that] to investi plaint].” FHCS devoted resources programs indepen group devotе to must ” alleges practices gating the defendants’ challenging the action.’ its suit dent of do dis that defendants that it has confirmed Equal, v. Housing Opportunities Made Inc. familial status. on the basis of criminate 644, Inc., Enquirer, F.2d 646 943 Cincinnati Therefore, FHCS has 1991) (6th (quoting Spann v. Colonial Vil Cir. Weathers, (6th 24, (D.C.Cir.), Inc., at 915 990 F.2d 913 27 cert. Hooker v. lage, 899 F.2d Cir.1993). 980, denied, 112 (D.C.Cir.1990) (“An far resources —constitutes more than organization simply a setback organization’s cannot, course, injury manufacture the abstract social interests.... necessary to maintain a suit from its ex- penditure of very resources on that suit. 379, 102 Id. at S.Ct. 1114. otherwise, any Were the rule litigant could Havens, Interpreting the circuit courts create in fact by bringing a have varying reached conclusions about III present Article would no limi- real the showing organization that an must tation.”); Council Subur- make to demоnstrate under the ban Philadelphia Montgomery v. Newspa- Fair Housing Act. Before highlighting the (3rd Cir.1998) (“We pers, 141 F.3d approaches, different we first note that align ourselves with holding those courts the circuits generally agree that an or- that litigation expenses alone do not con- ganization meets Article III standing re- damage stitute sufficient to support stand- quirements where it can show that ing.”); Association Retarded Citizens defendant’s alleged violations of the Fan- County Dallas v. Dallas Mental Health Housing Act caused it to divert resources & Mental Retardation Ctr. Bd. Trus- from projects or devote additional tees, (5th (“The Cir.1994) 19 F.3d particular project resources to a in order organization mere fact that an redirects alleged combat the discrimination. See some of its litigation legal resourсes to Council Suburban Phil- counseling in response to actions inac- adelphia Montgomery Newspapers, 141 tions party of another is insufficient to (3rd Cir.1998) (“In F.3d deciding impart standing upon organization.”); organizational standing questions after Lakewood, City Walker v. Havens, appellate generally courts have (9th Cir.2001) 1124 n. (declining to agreed organization that where an alleges money consider “the time and [housing the or is able to depending on the show— organization] expended has in prosecuting stage of the proceeding it has de- —that in deciding this suit” if the organization voted additional resources to some area of standing). had following While the re- its effort in order to counteract discrimi- approach, strictive nation, Third Circuit has organization has met the Arti- litigation considered expenses III when con- standing requirement.”). cle cluding organization that an standing had differ, however, The circuit courts on the where organization “stopped every- they extent to which injury will consider thing in else” order to devote attention to litigation related to in reviewing standing. Riga, the lawsuit. Alexander v. 208 F.3d Several courts have taken a more restric- (3rd Cir.2000). 427 n. 4 tive approach, holding that to show stand- ing, organization an ap- must demonstrate that Other circuits take a more lenient proach, it suffered a injury allowing organizations prove concrete that is com- to pletely independent standing by showing from the economic and diverted non-economic litigation.2 costs of the litigation See resources toward to counteract Spann Inc., Village, v. Colonial 899 F.2d housing defendant’s discrimination. сases, In these Spann, courts have found stand- crimination. See 899 F.2d at 27-28 ing discriminatory where the (organization defendant’s ac- demonstrated that the defen- plaintiff organization tions forced the racially discriminatory advertising to ex- dant's pend apart resources expend from those dedicated to forced it to additional resources to litigation, organization such as where an community housing educate the about dis- poured manpower facing additional funds and into a crimination and counsel individuals discrimination). broad education initiative to combat the dis- such Housing Act. in violation of the ments Bellwood v. example, For standing, (7th discussing the issue Briefly Dwivedi, Cir. F.2d cited Court only Housing Opportunities 1990), held “that the Seventh Circuit generally re- Spann, confer set forth shown to standard injury which needs be “inju- to dеmonstrate plaintiff is ‍‌‌​​​‌​​​‌​‌​‌‌‌​‌‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​​‌‌​​‌‌​‌‌‍deflec- housing agency quiring a fair standing on ‘pur- from a injury arising from money including time and an agency’s ry, of the tion increases against action legal illegal [that] to efforts directed counseling portedly There, pro- rea- devote to group the Court must discrimination.” resources challenging organiza- fact that the its suit that the mere grams independent soned ” addi- provide 899 F.2d opportunity (quoting Spann, tion lost the Id. the action.’ added). it counseling 27) because Housing Op- increased In tional or (emphasis the law- resources toward had directed its of re- plaintiffs devotion portunities, injury. cognizable Id. suit constituted de- and combat the investigate sources Real Ragin Harry Macklowe See also discriminatory advertising was fendant’s Cir.1993) (find- (2nd Co., 6 F.3d 898 Estate Id. to confer found sufficient plаintiff housing organization ing that stated, Housing explicitly not Although signif- on the standing primarily based had this Court suggests that Opportunities had to organization icant resources the of the consideration preclude does al- the defendant’s investigating devote to determining stand- litigation when costs of discriminatory challeng- actions and leged additionally requires ing, but Ar- through litigation); actions ing these beyond injury these prove type some Inc. v. Housing, kansas ACORN costs. Co., 160 F.3d Greystone Development, Ltd. organiza- the issue next revisited We Cir.1998) (“While (8th the de- 434-35 under the Fair tional monetary and organization’s flection of an Hooker, at 915. Act in counseling edu- human resources from individual, Hooker, con- Richard aimed at programs legal cational efforts organization to local fair tacted a discrimination, combating suсh as monitor- at a local age discrimination complain of investigation, is itself sufficient to ing and manager park, alleging trailer injury, must constitute an actual to rent or sell trailer refused park the defen- also be traceable to some act of families with young people or trailers to (internal omitted). dant.”) citations claim, the investigate To children. falls into the latter The Sixth Circuit sent a tester housing organization similarly approach. a lenient group, taking renting a inquire park trailer about Though require a to show to rent manager The refused trailer. of the injury independent that some tester, that she was too telling her that litigation, interpreted we have costs of investigation, Based on this young. relat- narrowly, finding that costs standard against the housing organization filed suit form investigation сan prelitigation ed to The district manager park. of the trailer Housing Op- standing. the basis for See of stand- the suit for lack court dismissed Inc. Equal, Made v. Cincinna- portunities re- appeal, the Hooker Court ing. On (6th Inc., 943 F.2d Enquirer, ti act Holding that the the dismissal. versed Hooker, Cir.1991); F.2d at 915. investigate Hooker’s sending a tester sufficient to was claim of discrimination 943 F.2d Housing Opportunities, stated, “FHCS standing, confer the court organization sued a local housing investigating the de- resources to pub- devoted alleging paper that newspaper, it has alleges that practices fendants’ discriminatory housing advertise- lished decision.”). prior confirmed defendants do discriminate Hooker therefore re- Therefore, on the of familial basis status. controlling authority mains panel. standing.” FHCS has Id. c. Do the Standing Lack Plaintiffs Recently, decision, unpublished Even Under the Hooker Standard? Peshina, (6th

Hughes v. 96 Fed.Appx. 272 Cir.2004), we followed the Hooker Court’s standing Under our Article III inquiry, Hooker, holding. Just as the plaintiff a Plaintiff: housing organization in Hughes followed (1) must have suffered some actual or up complaint on a of discrimination on the injury alleged threatened due the to [sic] basis familial status sending a tester (the illegal “injury conduct in fact ele- attempt property to rent from the de- (2) ment”); injury fairly must be fendants. When the tester faced similar (the challenged traceable to the action discrimination, organization filed suit. (3) element”); “causation there Finding that housing organization had must be substantial likelihood “devoted investigating its efforts to wheth- requested relief will redress or prevent law, er [the had violated the defendants] (the [plaintiff]’s injury “redressability el- diverting thus away its resources from the ement”). housing provides services it (In Stevenson v. J.C. & Co. re frustrating its insuring mission of fair Bradford Cannon), (6th Cir.2002). 277 F.3d housing practices,” the Hughes Court dispute found the here centers on organization had suf- injury fered an in fact sufficient to confer whether Plaintiffs suffered a cognizable Id. injury in fact. The district court conclud- ed that the Plaintiffs suffered a sufficiently b. Reconsidering Hooker traceable because incurred Seeking reversal of the district court’s monetary pre-litigation expenses or lost conclusion that Plaintiffs Fair Housing opportunity costs associated with the in- Council and the Center for Accessible Liv- vestigation. Specifically, the court deter- ing have standing, Defendant WKB first that, mined under the Circuit prece- Sixth Hooker, that we should overturn Weathers, dent of Hooker v. However, 990 F.2d at 915. this Court (6th Cir.1993), such prеlitigation costs must adhere to the well-settled rule and expenses conferred Article III stand- “[r]eported panel opinions binding are on ing on the Plaintiffs. Thus, subsequent panels. subsequent no Because we conclude that panel published opinion overrules a of a Housing Council set forth sufficient evi- previous panel. Court en banc consider- dence to demonstrate that it suffered an required published ation is to overrule a injury that independent is both of the in- 206(c). opinion of the court.” 6th Cir. R. litigation stant fairly and traceable to the Francis, See also Valentine v. Defendants, discriminatory the actions of (6th Cir.2001); Salmi v. Secre- Housing we find that Plaintiff Fair Council Services, tary Health and Human of bring had to action. this con- (6th Cir.1985) (“A F.2d panel of trast, because the Plaintiff Center for Ac- this Court cannot overrule the decision of cessible Living presents no evidence that another panel. prior The decision remains they anything identify did more than indi- controlling authority unless an inconsistent might potential viduals that serve as test- decision of the United Supreme States ers, the Court finds that the requires Court modification of the decision Center for or this sitting Court en banc overrules the Accessible Living proof has not established to cut due other services prove Accord- that injury an in fact. that it suffered Moreover, al- investigation. that the for Accessi- ingly, plaintiffs we find Center the standing to make Living enjoy organization does not such anytime ble most action. particular in this Housing claims funds a Fair Council investigation, as the such WKB project, Housing Fair Council to combat that it has of resources pool abоve, Hooker grows As discussed of discrimination instances other suf organization made clear that an Court cost, value opportunity smaller. injury confer concrete to fers a sufficient using funds opportunity forgone of to it resources standing when devotes is real. testing, the Olde St. Andrews on to investi training deploying and testers resources, every of In our world scarce instances of discrimination. gate suspected re- time or other expenditure money, Housing pre The Fair Council suffered in loss of the benefit sources results in the instant cisely type injury this time if same have resulted that would case. something money spent had been on Hooker, distinguish to Defen- Seeking had not ‍‌‌​​​‌​​​‌​‌​‌‌‌​‌‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​​‌‌​​‌‌​‌‌‍Fair Housing If the Council else. argues Housing the Fair dant WKB that testing at money time and on expended grant received a from HUD Council fixed Andrews, used it could have Olde St. housing purpose investigating for the testing. for those monies through the use of testers. discrimination a Indeed, that as argue the Plaintiffs receipt this Defendant WKB inves- Housing the Fair Council’s result of financing for testing HUD differentiates FHC used properties, of the WKB tigation fact, case.3 In claims that this WKB that portion of resources significant a funding required per- Plaintiff to HUD fighting be otherwise available would it form such tests or forfeit future would explic- not disability discrimination. While However, fact that the funding. the mere it, shift we find evidence this already Council allocat- had time during records Council’s testers, funds for the use does not ed For the final state- question. example, portion mean that the use of of those a that Coun- ment of work investigate does properties funds grant proposal cil submitted injury. amount to a concrete disability rights a clear focus on shows recognized this Court While has training deployment of testers of funds activi- the diversion from certain dwelling accessi- investigate structures for can counseling ties such as or education (J.A. 353.) bility For a problems. it standing, a sufficient confer be traditionally monitored organization a required has not Plaintiff to demon- of discrimi- investigated range broad in all funds strate redistribution of actions, disability focus on natory new example, cases. For the Hooker Court very likely means discrimination plaintiff the mere found that fact away turned its attention organization investigating had devoted resources incidents from other of discrimination. discrimination was sufficient—it alleged argues that Defendant WKB next would did not indicate what the Hooker resources, distinguishablе case is from instant have otherwise done with those investigated plaintiff that the need the Hooker suggest nor would because (J.A. 289.) Housing budget budget does not narra- test visits. The 3. The Fair Council's plan span specify whether of be later amend- covering time issue not it can tive work $7,650 pay approximately ed to reallocate funds. allocates for park only accordingly the defendant after re- We find that the resources trailer Housing discrimination, of Fair Council directed ceiving complaint training employing toward testers to Housing whereas the Fair Council re- Village investigate the of Olde St. Andrews ceived no of complaints pri- discrimination Moreover, injury.4 constitutes a concrete or to investigating Village of Olde St. directly traceable to the De- Andrews. Essentially, suggests WEB fendants’ of the housing construction de- any injury that stem may from the Fair velopment in resulting a manner in dis- Housing investigation Council’s of WEB crimination disabled toward individuals. properties fairly is not traceable to the We therefore affirm District Court’s acts of the Defendants because the Fair finding Housing that Plaintiff Council Housing Council the investigation. initiated has Housing under Act. In the the Fair Housing instant tipped potentially Living Council was Center for Accessible off dis- criminatory at the Village conditions of noted, As previously Center for noticing Olde St. Andrews after that all of Living’s grounds Accessible asserted for development units had steps standing are far less established than the door, leading to creating the front an “in- Fair Housing Council’s. Plaintiffs accessible route” for disabled individuals. claim Living that the for Accessible Center 89-90.) 15-16, (Dist.Ct.Op. J.A. Part of provided thе testers for the Fair the Fair Housing Council’s mission in- Council, proof but no offer investigating cludes and monitoring hous- Living anything Center for did Accessible ing developments suspected for incidences identify more than individuals that might of Regardless discrimination. of whether Indeed, potential serve as testers. the to organization potential of learns discrim- tality Living’s for Center Accessible ination through independent complaints or injury independent litiga claimed of the — observations, through any its own action it -appears spent limited its time tion-— takes in combating that discrimination is rounding up light three testers. of the fairly traceable to the defendant’s discrimi- Living fact that the for Center Accessible natory acts. Cabrera v. e.g., See Jakabo- present has failed to evidence of its cost vitz, Cir.1994) (2d (finding F.3d 372 testers, spent reсruiting time we cannot a housing organization had standing when conclude that the Center for Accessible acting the organization, on its own initia- Living partic has suffered “concrete and response specific tive rather than in to a injury. Sandusky County ularized” Dem complaint, Blackwell, to investigate sent testers racial Party ocratic (6th Cir.2004). Therefore, steering City at certain York New rental the Court properties). prohibits finds that Article III the Center additionally argue meeting Living. 4. The Plaintiffs that even with the Center Accessible testing activities, were we to find that the direct costs do proof prelitigation As of these injury, they not constitute a traceable suffered point Plaintiffs to a record entitled "Plaintiffs' injuries other concrete sufficient to confer Resources,” Diversion which the Plaintiffs specifically point The Plaintiffs Attorney attached to their motion for Fees. several tasks that Council This document that Plaintiff the Fair shows performed in claims its staff lieu of other approxi- staff dedicated Council's training agency operations, normal such as mately prelitigation investiga- 32 hours to the recruiting designing testers (J.A. Village tion Olde St. Andrews. testing investigation, portion observing 473-74.) development, Andrews Olde St. argue The that the statute Living challenging for Accessible from De- Defendants the run either of limitations should from fendants’ conduct. of or the date of construction completion sold, of Limitations B. Statute date that each individual unit was involving the thereby barring all claims question The statute of limitations re- development except with Greenhurst appears in this which to be presented sold gard to last thrеe units that were the impression, of first is what “act” one 12, the February response, after 1997. In triggering should constitute the event for that this should con- Plaintiff Court brought discriminatory the claims under comply that do with buildings sider not housing provisions Housing continu- Housing Fair Act standards to be says The that the Act. Defendant WKB theory, the con- ing violations. Under that the statute limitations bars Plaintiffs’ the tinuing doctrine toll violation would the design case because and construction limitations statute until Defendants the units, of the relevant which oc remedy develop- conditions the making the more than years curred two before Plain ments to individuals. inaccessible disabled action, tolls tiffs commenced this the statu period. say tory issue, The Plaintiffs their this addressing the district claims are not barred because the non- the the agreed court with Plaintiffs comрliant a apply structures constitute continu continuing violation doctrine does violation, act ing such that the statute limi being long ongoing “so as there is some tations does not to run the begin design until it performed pertains violation terminates. the The development.” construction of district found both Defendants’ court the 1998, 6, Plaintiffs filed suit on October flawed, arguments and the Plaintiffs’ how- alleging Defendants did build ever, respect act event what or Village of in compli- the Olde St. Andrews should the of limitations. trigger statute Housing ance with the Fair Act. On Feb- such, As district court concluded ruary Plaintiffs filed an or rental of the nonconform- sale last complaint amended al- which also ing development unit in a is the act leged Act violations at the limita- triggers event that statute developments. Greenhurst Deer Creek standаrd, tions. this district Applying The Defendants concede that Plain- claims were court held that Plaintiffs’ regard tiffs’ claims with to the Deer Creek not time barred because the last discrimi- of Olde Andrews develop- St. natory case than act in this occurred less two-year ments fall within the statute of Plaintiffs years filed two before regardless limitations we ultimate- what court, agree action. We with the district ly determine to the triggering constitute limit our explicitly holding but facts event. Defendants did not even com- of this case. construction plete on the Olde St. Andrews Act, Developments or Deer Creek until 1999 Under the statute after file respectively, requires and 2001 well the Plain- of limitations However, complaint years suit. the “oc tiffs filed Defendants within two after alleged dis completed construction on Greenhurst currence or termination of an housing practice had sold ... development criminatory 1995 and all but whichev 3613(a)(1)(A). prior February three of units er occurs last.” U.S.C. Here, years provision two filed of the Fair particular before Plaintiffs allegedly amended Act violated makes it complaint. their 480

unlawful to “discriminate in the requires sale or vision here more than the mere rental, or otherwise make unavailable or design and noncompliant construction of a deny a dwelling any buyer or renter.” Recall, housing unit. the text of the Fair 3604(f)(l-2). 42 § Additionally, U.S.C. in Housing Act housing itself focuses on dis- brought actions under the Fair Housing crimination in the sale or rental of housing Act, Supreme Court has recognized units. Accordingly, it is difficult to credit that a complaint alleging continuing a ille the Defendant’s design assertion that the gal practice, rather than an isolated inci and construction of question the units in conduct, dent of violative timely is when constitute any the core of Fair Housing years filed within two of the last occur Act violation. Havens, rence illegal practice. of the 455 Moreover, practical it makes little sense 380-81, 102 U.S. S.Ct. 1114. to start period running limitations In appealing judgment of the district from the date of completion design of the court, Defendant says appli- that the Often, or construction. housing go units two-year cable statute of limitations should unsold or unlet for some time after begin to upon completion run design are built. If the statute of limitations and construction of the units. begin were to running immediately upon support proposition, of this the Defendant completion of the building, potential buy- argues design that the аnd construction of may ers not even look at property until the housing units gravamen constitutes the after the statute of limitations has run. of the Act alleged violation Such a result would run counter to the well by the Plaintiffs and therefore should start principle established that in interpreting the statute of limitations. The Court re- Act, the Fair Housing courts are to give jects argument. this effect to the “broad remedial intent of First, a preliminary matter the Court Congress embodied the Act.” Havens finds though certainly not dis- instructive — Realty Corp., 380-81, 455 U.S. at 102 S.Ct. positive overwhelming majority —that 1114; see also v. Metropolitan Trafficante of the federal courts have addressed Co., Ins. Life rejected issue have position ad- 364, (1972). 34 L.Ed.2d 415 vanced the Defendant adopted find, however, We that the view less interpretation restrictive of thе Fair statute of limitations is tolled until the See, tolling provisions. Act’s e.g., noncompliant conditions are remedied is Ass’n, Eastern Paralyzed Veterans Inc. v. equally inconsistent 42 U.S.C. Assoc., Lazarus-Burman F.Supp.2d 133 3604(f)(1). The Fair Act speci- (E.D.N.Y.2001) (“LIHS does not com- fies that year the two period limitations plain FHA, of a discrete violation of the begins run at the termination of the but instead describes an practice unlawful alleged act of discrimination. In the con- ... has continued to present day. text of the construction design of mul- such, As alleges continuing LIHS viola- tifamily dwelling units that are inaccessible which, therefore, made.”); tion timely individuals, discriminatory disabled Montana Housing, Inc. v. American act during occurs or rental sale of that Inc., Capital Development, 81 F.Supp.2d Thus, unit. once a unit has been sold or (D.Mont.1999); Neighbor- Baltimore rented, discriminatory complete. act is hoods, Builders, Inc. v. Rommel (D.Md.1999). F.Supp.2d continuing Amici Additionally, viola- purely from a textual tion standpoint apply a viola- should to toll the statute of tion of the relevant Fair Housing pro- Act limitations even after the sale of all of the However, as the in a case such They conditions. environment. particular in a units alleges 380-81, case, plaintiff the Havens, where instant cite in a engaged “where a developer or proposition for the that the owner Act, Housing the entire pursuant throughout plaintiff, practice policy or conduct just one incident of challenges not units constructing housing development Act, prac- but an unlawful FHA, violative of the the the comply with that fail to peri- limitations continues into the tice that applies continuing violations doctrine od, timely it is filed complaint is when the the sale limitations until the statute of toll of the last asserted years]5 [two within development. unit in that of the last They further practice.” of that occurrence lines, where Along those same remedy noncompli- failing to claim that housing of several that the owner can show a failure to oth- ant conditions constitutes pol- engaged in a continuous developments housing available accessible erwise make noncom- regard to the icy practice 3604(f)(1). § of 42 in violation U.S.C. of each of design and construction pliant However, statutory language of violation continuing developments, 3604(f) the de- specifically § makes U.S.C. limita- running of the may toll the doctrine hous- construction of inaccessible sign and all thе last unit of period tions until in the context of the sale ing units unlawful developments is sold. implicated Therefore, the lan- or rental of the units. to the instant Applying this rule 3604(f)(1) § in 42 guage appearing U.S.C. claims fall safe- find that the Plaintiffs’ developments prohibiting owners of those of limitations. As ly within the statute making unavailable acces- from otherwise such, rejects the Defendant’s the Court housing provi- serves as a catch-all sible district court’s argument and affirms the ways to cover other that an individual sion of limitations does holding that the statute ‍‌‌​​​‌​​​‌​‌​‌‌‌​‌‌‌‌‌​​‌​‌​​‌​‌‌​‌‌‌​​‌‌​​‌‌​‌‌‍may housing make unavailable to the dis- alleging this to run in actions begin beyond abled the forms of discrimination until the discriminatory practice type of 3604(f)(3)(c). § listed in 42 U.S.C. unit is sold.6 non-compliant last that in therefore find cases where We plaintiff alleges the owner of a C. HUD Guidelines multi-family housing dеvelopment failed to says also Finally, Defendant WKB design development and construct the so committed error fail- the district court as to make it accessible to disabled individ- compli- to demonstrate ing to allow them uals, period depend the limitations will on Housing by Act means ance with the circumstances of each case. specific applica- than those set forth example, where a disabled individual For again, guidelines. Once ble HUD buy particular unit and discov- seeks argument. rejects Defendant’s Court unit inaccessible because it ers that the brief, correctly notes the Defendant conformity with the designed was not language of the Fair that neither FHA, for that indi- period the limitations nor federal applicable Act itself begin to run from the vidual’s claim would specific design and regulations provide buy attempted date that the individual The Defendant nonconforming construction standards. unit and discovered the operation not address the applied 180- 6. The Court does 5. The Havens court the former in Fair Act the statute of limitations day period. The current limita- limitations disability in the alleging discrimination cases period years. tions is two multi-family newly rental constructed dwellings. however, incorrectly alleges, that the dis- 455 U.S. S.Ct. trict court impermissibly treated rele- (1982), is without guidelines vant HUD controlling au- Act, bring suit to enforce the Fair Housing thority. 42 U.S.C. 3604. In addressing whether units It strikes me as that a obvious non- complied Act, with the Fair profit corporation purpose, created for the district court explicitly stated that “the alia, inter bringing lawsuits to enforce Guidelines, though highly relevant and sig- FHA, has not sufferеd a “concrete and nificant, are not decisive. real question activities,” demonstrable injury to [its] is whether the ... reasonably units are added), (emphasis simply by conducting accessible and useable for most handi- one of finding suable defen- activities— capped persons.” Although the district otherwise, dants. But Hooker has held court did that note “Defendants undoubt- binding precedent and it is a I am not free edly heavy face a demonstrating burden of to ignore and cannot distinguish any aceessability” in instances where a con- meaningful way. Therefore, I am com- struction comply feature does not with the pelled judgment to concur in a guidelines, HUD the touchstone of the dis- Council, Inc., Fair Housing standing, has

trict compliance analysis courts clearly was III, under Article to sue the defendant to thе Act itself. Accordingly, we find that enforce the Fair Housing agree Act. I Defendant ample opportunity WKB had the Center For Living, Accessible demonstrate compliance with the Fair Inc., does not have I agree also Housing Act by means other than those by Housing’s set forth applicable guideline lawsuit was not barred HUD simply Moreover, failed to do so. applicable year two statute of limi- Supreme Court has held that 3613(a)(1)(A). HUD’s inter- tations, 42 U.S.C. pretation of FHA is entitled to defer-

ence. Meyer Holley, See v. 537 U.S.

287-88, 123 S.Ct. 154 L.Ed.2d 753 (2003); Metropolitan v. Trafficante Life Co.,

Ins. (1972). such, As again

reject argument Defendant WKB’s and af-

firm the district court. IV. Conclusion HARARE, Hassan Ibrahim EL reasons, For foregoing this Court Petitioner, in part AFFIRMS REVERSES v. part the decision of the district court. GONZALES, Attorney Alberto R. RYAN, Judge, concurring. Circuit General, Respondent. Weathers, itWere not for Hooker v. No. 05-3993. (6th Cir.1993), F.2d 913 I would hold that Council, Inc., does not Appeals, United States Court of have Article III standing to maintain this Sixth Circuit. lawsuit. It is well settled that a Dec. organization that has not suffered a “con- crete and demonstrable ac- [its]

tivities,” Coleman, Realty Corp. Havens

Case Details

Case Name: Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 15, 2006

Citation: 210 F. App'x 469

Docket Number: 05-5862

Court Abbreviation: 6th Cir.