Thomas C. Baumgardner v. The Secretary, United States Department of Housing and Urban Development, on Behalf of Blanton B. Holley

VI argue

Alternatively, Lindseys upon pass to MBank if title did

that even

foreclosure, was aware MBank convey allot

Lindseys not intend to did therefore,

ment, committed MBank fraud, factum. The or fraud

real not raise this claim below.

Lindseys did not address an issue raised will

This Court appeal unless it is first

for the time refusal to consid legal issue and our

purely miscarriage jus in a it would result

er Armstrong Indus v. World Aguirre

tice. Inc., (5th Cir.

tries, 901 F.2d Co., 1990); Exploration Matter HECI Cir.1988). (5th n. 7 F.2d

VII conclusion, ownership of hold that pass MBank when it

the allotment did parcel upon on the entire land

foreclosed The the allotment was effect.

which presented no

Lindseys evidence ownership retain agreed to let them

MBank upon There- allotment foreclosure. granting the

fore, order the district court’s summary judgment motion

FDIC’s

AFFIRMED. BAUMGARDNER, Petitioner,

Thomas C. SECRETARY, DE- UNITED STATES AND UR-

PARTMENT HOUSING OF DEVELOPMENT, on behalf

BAN Holley, Respondent. B.

Blanton 91-3039.

No. Appeals, States Court

United Circuit.

Sixth

Argued Aug. 31, 1992.

Decided March writing. reservation, the reservation must question of reach the whether we do not by petitioner, Baumgard- Thomas

owned C. talked to ner. ear- ly January, gave him who informa- monthly tion about rental and estimated utility divergence There is some bills. testimony the details of the about balance Holley’s of the conversation. version Baumgardner pro- asked posed use the house and who would be living Upon being there with him. advised Holley planned and three male friends there, Baumgardner inquired to live wheth- they Holley er were students. testified Baumgardner that he told all em- were adults, ployed whereupon Baumgardner stated, renting “I’m not interested in My past, experience males. has been that messy are and males unclean.” hand, Baumgardner, on the other testi- Resler, Cincinnati, (argued Mark L. Ohio specific fied that he had no recollection of briefed), Baumgardner, and for Thomas C. conversation, any such but did remember a petitioner. phone inquiry call from a male at about the specified by Holley date and time about the (briefed), Leslie A. Simon Jessica D. Sil- question. home in He claimed that Justice, (argued), Dept, ver U.S. Civ. caller, recall, identity whose he could not Div., Section, Rights Appellate Robert E. questions would not answer his about who Justice, Staff, Kopp, Dept, Appellate living in the house or would be about their Div., Enzel, H. Memmi M. Civ. David hung up employment during and that he Stubbs, Dept, Housing U.S. and Urban Baumgardner the conversation. stated D.C., Development, Washington, for Secre- again that he was called later this “com- tary, Dept, Housing U.S. Urban pletely uncooperative” Baumgard- male. Development, on behalf of Blanton B. Hol- however, conceded, “I honestly ner do not ley, respondent. on in the recall the bits what went (briefed), Cooper, Stephen M. Dane many I conversations because have so over Cramer, Toledo, Ohio, Straub, Walinski & phone any given day.” Baumgard- Housing for National Fair Alliance and ner’s business was rental or residential real Neighbors Housing Opportunities Nat. units, and he estimated that he estate re- Inc., Equal, Made amicus curiae. day keep 20 calls a did not ceived about but (briefed), Morgan, Frederick M. Jr. Mont- logs any detailed records or about the con- Jonson, Ohio, Cincinnati, gomery, Rennie & applicants calls from or ten- tents of these Holley, respondent-inter- for Blanton B. ants. venor. had, fact, difficulty Baumgardner with damaging property previ- this rental males SUHRHEINRICH, Before: JONES appli- ously. personally He screened rental WELLFORD, Judges; Circuit Senior location, seventy- one of about cants at this Judge. Circuit eighty housing he five or rental units WELLFORD, integrated Judge. and rented on an basis to Senior Circuit owned and females. He had also used both males Holley, Blanton B. who lived in the Wal- Victory Parkway the 2343 location as Cincinnati, Ohio, nut Hills area of called a from time to time since 1983. office telephone sign number listed on a rental alleging Victory Parkway. complaint filed a denial nearby 2343 rental gen- based on his sign a four-bedroom home of rental accommodation advertised tester, upon A rent to her. male room- but would male (and prospective his that of der March, Act, Housing calling Baumgardner’s office mates) the Fair under Depart- he had decided to convert the seq. told that 3601 et Staff U.S.C. § Development March, Housing and Urban into offices. Later how- house ment of complaint, follow- investigated ever, (HUD) Baumgardner rented the house a a counsel issued general (and HUD’s later ing which with children. HOME female and a formal cause determination probable HUD) concluded that treated against gender discrimination charge differently regard and females males hearing, an in 1990. After Upon a renting property. careful (AU) issued judge law administrative record, are of the examination November decision” on lengthy “initial there is evidence to view that substantial Baumgardner 1990, that determined which conclusion, and that the AU support this dis- charged of intentional guilty as was position in the to make what was better $5,000 in dam- crimination, actual assessed credibility essentially a determination $4,000 as a civil an additional ages and of the Hol- the content and effect on injunctive and ordered extensive penalty, Holley ley/Baumgardner conversations. AFFIRM appeal We This ensued. relief. “offended, hurt, angered” and felt insulted liability, but RE- determination the according testimony to his rejection, by his in- damages and on the issues VERSE by A male friend as found the AU. and relief. junctive in- Holley apartment in his in with moved Holley called that couple AU determined him “for a conveniencing 1989, 19, and January Baumgardner on Baumgardner refused Hol- after months” inquiry “that responded the he had to that interest. The AU also ley’s expression of males because to to did not want rent he alone” and is Holley lives found that “now keep a they did not that experience was his Baumgardner. renting from in uninterested Holley found that The AU house.” clean his come to Baumgardner to invited had ISSUES I. PROCEDURAL his that he and apartment” to see by “close AU, HUD, by first contact- as found the home,” to but “maintain a clean roommates on or Baumgardner in matter about this ed Baum- found that The AU also no avail. 1989, him in error it “sent April and then Holley his “and “refused to gardner allow” complaint” about housing discrimination a the inspect opportunity to an friends Along Indiana. Chicago, in East a house Holley’s per- house,” stating response to a letter to mistaken notice longer interested with “he was that no sistence Chicago of- Baumgardner it off from the take house would renting the but Jung, investigator sign, referring how- to HUD Rent” fice The “For market.” the “Holley number, subject yard of the the front ever, phone in the his remained number 5-89- HUD case Baumgardner, some weeks.” “for house 21, 1989.” The 305-1, March filing date organization an Holley promptly called complaint of a Baumgardner letter notified grants which public by private and funded discriminatory “engaged he had HOME, housing complaints, fair with deals might file a sworn housing practices,” complaint. his register to in Cincinnati an inves- and that days, within response into to look staff has a substantial HOME case with him. the discuss tigator would housing concerning viola- fair complaints HUD, how- Holley’s complaint sworn The next investigations. make tions February ever, HOME was filed with subject initiated visits HOME day call or calls. January 19 based A test- female testers. property various 3, 1989 April ignored Baumgardner to view by petitioner permitted er was com- the erroneous with communication mem- other renting to her house not commence Jung did plaint enclosure. later female family. a her When bers 1989; he August of investigation until property inquire called tester “uncooperative.” He found indicated February, and a contact investigation HOME’S used using as his office considering he was report seeking housing, as a basis for his final because of sex. 24 with 100.80(b)(5). recommending complaint by a formal CFR agency. Baumgardner maintains that HUD describes, pertinent 42 U.S.C. 3604 regulations violated its own and the law part, unlawful acts: handling Holley’s complaint thereby depriv (a) negotiate refuse for the To ... ... ing process rights, him of his due and asks of, or otherwise make unavailable rental Next, this action be dismissed. he deny, dwelling any person or be- claims that there was no real effort at sex_ cause of ... conciliation, complete and that HUD did investigation days give

its nor within make, (c) print, publish any To or ... any delay him notice as to reasons for respect statement ... to the ... Finally, with within that time frame. he com any dwelling rental of a that indicates plains promptly that he was not furnished limitation, preference, investigative exhibits, or discrimination report the final sex, intention to requesting copy based on ... ... after not even thereof. limitation, preference, make such AU, only As noted HUD not discrimination. copy failed to send a of the (d) represent any person To because complaint days, ten it also within but sent any dwelling that of ... sex ... is copy complaint out an erroneous of the inspection available for ... or rental emphasized, after it filed. The was AU dwelling when such is in fact so avail- however, could have able. through phone corrected this situation a Regulations issued under 3604 further § call, failed to do but so. He did not receive provide descriptions prohibited of conduct: copy the correct until about six months refusing dwelling any 1. to rent a Furthermore, found, later. the AU with a person because of sex. 24 CFR 100.- record, substantial basis in the 60(b)(2); delayed investigative issuance of the final report1 procras- due to engaging any relating was “HUD’s 2. conduct mismanagement tinations and of the com- provision housing that otherwise plaint.” dwellings makes unavailable or denies persons 24 because of sex. CFR 100.- issue, then, proce The whether is HUD’s 70(b); noncompliance 42 dural with U.S.C. discouraging any person from in- 3. 3610(a) of the act is a for dismiss basis § renting dwelling specting or a because of authority al.2 We find no case law deal 100.70(c)(1); sex. 24 CFR ing argues in with this issue. HUD its using phrases convey 4. words which any brief that failure under 3610 consti dwellings par- are not available to a error, citing tutes harmless the Administra group persons ticular because of sex. Act, 706(2)(D), Procedure 5 tive U.S.C. § 100.75(c)(1); 24 CFR applies it asserts to court which review expressing prospective 5. renters or action, agency Kimberly EEOC any persons preference a other for or (6th Cir.), Corp., 511 F.2d 1352 cert. Clark limitation on renter because of sex. 994, 420, denied, 46 423 U.S. 96 S.Ct. 100.75(c)(2); CFR (1975) (dealing L.Ed.2d 368 with Title VII providing false or inaccurate infor- and this court’s of a district court

6. review decision). regarding availability a holds that the Kimberly mation Clark proce dwelling any person, regard- neglect for rental to EEOC’s to follow Title VII person actually requirements sig- which “inflicts no less of whether such is dural days filing," report nearly year which 1. This was not issued until a later than 10 after such iden- episode alleged discriminatory practice and a half after the occurred. tifies "the ... together copy original complaint." with a (a)(l)(B)(ii) requires 2. Subsection that the Sec- added). (Emphasis retary complaint “shall" serve notice of the “not party Co., entitled to ob- NLRB injury on the v. Monsanto Chemical nificant F.2d 764. servance,” be considered “harmless should argued, more- error.” Id. at (empha- Id. 397 U.S. at 90 S.Ct. at 1292 over, “actually comply failed to only that it added). principle sis The above mistakenly only procedure” one serv- adopted procedural because the rules notice, late, wrong days three ing question were “mere aids to the exercise of complaint.3 agency’s independent discretion.” Id. situation the instant case involv just involved here is not What is ing single one claimed offense at one of procedur- to follow its own failure HUD properties many by Baumgardner rented is, rather, rules; a a al failure to follow readily distinguishable from Kimberly statutory reflecting congres- mandate Ball, Clark Black where there were period determination that a short sional many charges many entries and items of important for notice was after an al- time argument information A involved. similar parties leged violation so that concerned by Baumgardner to that advanced negotiate or conciliate proceed promptly to case made in Connor v. U.S. Civil in the minds of witness- with events fresh Commission, (6th 721 F.2d Service Clark, 511 F.2d at Kimberly es. Cir.1985), involving a case a claim involving, in a different statute dealt with plaintiff, seeking position to retain his instances, employment rela- many ongoing Army, government that failure of the context, held tionships. In that the court agency light “applicable statutory procedur- “to that EEOC’s failure follow provisions procedural to follow its rules” “significant injury” no re- al rule” when deprived process. him of due In that case preclude the failure did not sulted from successful, we held that to be Connor had judicial (emphasis action. Id. at 1360 add- prejudiced to show “that he had been ed). sup- Supreme The Court case cited deprived the merits or of substantial port of that rationale was American Farm (Failure rights.” of a federal Id. at 1056. Ball, 532, 90 v. Black 397 U.S. S.Ct. Lines statutory agency to adhere to a notice was 1288, (1970), L.Ed.2d 547 a case which 25 Connor.) not involved See also Shaw v. There, dealt with the ICC’s “own rules.” (Fed. Service, Postal 697 F.2d 1078 U.S. complete list in detail a list of the failure to States, Cir.1983); Pascal v. 543 United and addresses of all carriers who names (1976); 1284, compare F.2d 211 Ct.Cl. 183 provide transportation services refused to States, 134, F.2d 543 Rasmussen United prejudice “not the carriers was deemed [to] (1976). or 211 We do not excuse Ct.Cl. 260 objec- informed making precise and adhere to the stat justify HUD’s failure to Ball, at 90 tions.” Black 397 U.S. in this as did the utory standard of notice Accordingly, the held: S.Ct. at 1292. Court Baumgard- simply concluding that AU of a always within the discretion brought to HUD’s easily ner “could have “[i]t agency administrative to re- complaint. court or an The the incorrect attention” modify procedural upon respondent lax or its rule a to is not cast burden adopted orderly the transaction of correction of an bring for or about a amend put given Baumgardner case was it when a notice. business before inaccurate discrimi require complaint it. The action for justice only ends of on notice the by someone named natory housing practice in such a case is not reviewable of either number, had bearing a case showing Holley, except upon a substantial 21, 1989. against him on March complaining party.” filed to the been prejudice earliest, after gardner, two weeks signed February the until complaint at 3. The was 28 HUD, HOME, did not HUD's notice last date it was filed. forwarded it to the filed with which failing to iden- comply also for with the statute on March and it was then marked filed Holley complaint tify "mistakenly" attach the correct used the and to HUD concedes that property reflecting proper of the proba- address February the date in its determination of 28 Thus, complaint. subject of the charge which was the in its of discrimination. ble cause and separate or failures filing, two Regardless there were at least date of HUD’s of the correct 3610(a)(l)(B)(ii). comply §with omissions to been Baum- notice would not have received in- obviously inadequate ing charge alerted This was about a of discrimina- statutory tion, notice. inquire specifics sufficient the as to thereof. failure, procedural moreover, may Such Baumgardner sub Whether circumstances, risk dismissal in other stantially prejudiced question is a close be important deem it here we on the issue of he learn the of the cause did not date damages. complaint more than three months until Baumgardner not later. While was unwise pass procedural We next the keep telephone more accurate records on specifications U.S.C. inquiries, fact he was rental the is that 3610(a)(1)(B)(iv)(C), require which that: § upon many months recall the called later to (iv) Secretary the shall make an inves- specifics many of calls one of hundreds tigation alleged discriminatory of the had on renting he received his various practice housing complete in- such apartments housing we units. While vestigation days the fil- within after agree “procedural with the AU that short ing ..., complaint unless it is comings” are not a basis alone sufficient impracticable to do so. dismissal, must inquire for (C) If Secretary complete is unable to procedural nature and the effect of the the investigation days within 100 after shortcomings as to notice in this case. filing ..., complaint the Secre- was, least, deprived of a tary notify complainant shall and re- prompt opportunity to effect a settlement spondent writing of the reasons for (or equiv property to offer the rental its doing so. alent) who, for Holley several months January after still interested Delay by investigation beyond HUD in renting subject home. days does not constitute a violation thereunder, n regulations 3610 nor the be- statutory gives complain- scheme (C) permits Secretary cause subsection ing year charge, party up to a make a delay. out its for the to set reasons There recognize and we lawful- could implied “good is an cause” for ex- basis ly complaint period have his filed for a tending period investigation beyond many finally months after days. sent 100 The notice out included that adequate obtained notice this case about Secretary investiga- the would conclude the (and location) Holley nature of con- the the days "impracticable” tion within unless 100 troversy. We consider this circumstance Baumgardner so.4 on to do HUD notified significant Baumgardner as to whether 8, 1989, August or about that its increased substantially to willfully was caused be delay processing. caseload Under would prejudiced making a mer- defense on the circumstances, these because the extension Holley’s complaint. Baumgardner’s its of beyond days lengthy was not and little greater prejudice may well be on the dam- demonstrated, prejudice actual we con- was ages question, will subse- which we discuss basis on clude there is no for dismissal quently. note, however, the this account. We preju- perceive degree While we some properly rejected attempt AU HUD’s to Baumgardner’s on the de- dice merits explain delay by blaming Baumgardner its injury resulting fense and some from being alleged cooperative. for not HUD’s procedurally comply with HUD’s failure to attempts to notice contact communicate notice, statutory to prepared we are not delay were deemed “frivolous” and prejudice, circum- hold the under the days issue furthermore did not within stances, so that HUD’s substantial filing complaint. the complaint should be dismissed. The late- Secretary it is under ness notice was material and directed feasible, 3610(b)(1) Baumgardner’s ability, upon extent to en- was within be- “to the § 103.400(C)(1) interprets good C.F.R. 4. the statu- cause. § tory impracticality standard to rather than troubling that, respect to the this case. We conclude gage in conciliation with in this case complaint.” combination, We are troubled even there was not a denial investigation delayed and extended awith process, of due but these deficiencies do by uncoopera- incorrectly blamed HUD regard have an adverse effect with to coupled cursory efforts to tiveness ascertaining fair and reasonable agree with HUD’s We do not conciliate.5 consequence a single episode as of this argument in its brief that “the statute [42 gender discrimination. 3610(b)(1)] to HUD’s dis- U.S.C. leaves question the of whether further

cretion ” II. LIABILITY We believe that conciliation is ‘feasible.’ by indicated objective standard is an finding We have concluded that a leaving than the entire mat- statute rather liability supported by substantial evi discre- ter of conciliation to unbridled taking dence into account the critical deter respondent is cer- While a tion of HUD. credibility controversy. mination of this to a successful concilia- tainly not entitled There is substantial evidence that Baum tion, objectively reason- he is entitled to an gardner negotiate refused to for the rental bring by agency about a effort able question, house because was to case, charge. In this settlement rented males. refused and an un- be phone call contact there was (video meeting taped Baum- property Holley successful to show the and he say this was not a gardner); we cannot it, allowed females to examine and there is nor can effort to conciliate we “feasible” represented evidence that he that the house failure ad- say it was unreasonable inspection was not available for or rental in that re- statutory to the direction here on the sex of and his friends. based was, however, little more than gard. It doubt, Although question not free of barely sufficient. liability. AFFIRM the determination of investiga final The AU found the time, recognize, that the We at the same filed late due to report tive to have been preclude Baumgardner did not from Act mismanagement. own While HUD’s investigating background, financial furnishing report to also late in this responsibility Holley ability, general request, his first he did after applicant pri- of his other because it a number of weeks before receive tenants, long experience with so as or bad hearing and in sufficient administrative race, color, he did not discriminate based on prepared respond time to be specified in any of the other bases sex or reports are to include sum charge. Such Act, Housing as amended. the Fair correspondence and other con maries of error in the prejudicial we find no case descriptions other summary tacts and hearing mandating reversal administrative records, among other items. While liability.6 The stan of the determination furnish Baum have been better to would findings the is whether dard of review made copies of documents later gardner by evidence hearing (and bringing supported are substantial at fact available hearing on that ac delays Secretary, at the about on the record as a whole. count), process in find no denial of due (11th we Blackwell, Cir. 908 F.2d respect. this could 1990). the ALT We are satisfied that based a conclusion of discrimination reach sum, problems at- the combination by supported sub findings that are on his carrying tendant to HUD deficiencies seriously stantial evidence. statutory procedures are out express about admissibil- some reservation HUD had 6. We in its brief that "even if 5. HUD asserts days attempted opinion of the HOME’SErnestine ity conciliation within 100 evidence of was, filing complaint outcome ... a successful Engstrand, this evidence but admission of settlement) (other monetary was unlike- most, judgment. than in our harmless error by Baumgardner house ly,” had rented the since April tenants. March or to other DAMAGES claim of inconvenience was based on his III. moving Holley him friends in with after A. General Considerations rejected Victory Parkway. was at 2543 authorizes Title 42 U.S.C. 3613 “actual Holley conceded that he “chose to include” injunc- as punitive damages” as well apartment compul- his friend at his without vigor- Baumgardner contends relief. tive couple sion. The lasted a “inconvenience” amount of the award of ously that the total sought by of months at most. Rental damages unsupported compensatory was Baumgardner approximately $650.00 agree We with this con- and unreasonable. costs, plus per utility considerably month tention. per more than the month rental $450.00 statutory under the It is evident paying apartment Holley was then for his party charged prompt notice scheme Holley shared with a friend. Neither nor This would afford a important. is deemed friends, his after the initial unsuccessful conciliate, negotiate, prompt opportunity to contact, attempt made further to con- of the claim or bring resolution about investigate tact further administrative complaint formal without renting property question. Holley legal consuming ac- proceedings or time episode easy conceded the “was kind of actions in this case were tion. HUD’s seeing sign get over” but for the rental “frivolous,” respects only in some remain for a few weeks. procrastinated and misman- agency also finding We find no basis for the AU’s handling Holley’s complaint. aged the there was economic loss to sloppy dilatory, were and' HUD’s actions nevertheless, sought, to focus blame the' rent for the house would not but it because “uncooperative.” In rent, as apartment on have less than his been procedural process, due close case thereof, share It his as found AU. liability de- although have sustained we pay- third friend is immaterial what a termination, must examine the ing separate apartment in for his our view. being prompt mindful that a carefully issue his Holley is not entitled to recover for or to be alerted to the chance to conciliate loss, any, friend’s if and none was demon- by Holley may well have charge made very strated. He continued to live brought a resolution of the contro- Victory Parkway; vicinity near of 2543 he delay that HUD’s versy. We conclude was, therefore, neighborhood not denied impact on the handling did have an adverse It advantages nor location conveniences. question damages. him no more to travel to work or to cost go shop or wherever else he chose to Compensatory B. and Inconvenience El- Contrary enjoyment. necessities or to the ements finding, it is not “clear that Com- AU’s $2,000 “in com The AU awarded affected.” plaint’s status [was] financial losses, including pensation for his economic added). (Emphasis time, At the same there inconvenience.” AU, also, no as noted There was attempt acknowledgement of “no was an attempt “to break out what amount [was direct financial harm to present evidence of direct compensation as ... due to claimed] respondent Complainant.” Counsel for opposed as to emo- costs and inconvenience charging party hearing at the contend and rights.” loss of civil tional distress and damages Holley’s “primary are loss ed that lack of Despite perceive what we to be a The rights of civil and emotional distress.” loss, the proof any actual economic to show plaintiff remained in his evidence is that $2,000 Holley “his AU awarded apartment, Cypress Apartments, for almost losses, including inconvenience.” economic year episode after the with in accordance reduce this award We will making twenty looking despite about calls $1,000, giving with the above rationale Hills and into other locations the Walnut of some con- Holley’s Holley the benefit “surrounding neighborhoods.”

581 Holley may experienced regard.7 in this This would have siderable doubt racial dis- loss, financial al- cover nominal experience also crimination and that this should though adequately proved. not augment damages here is meritless. Distress C. Emotional D. Rights Loss Civil Next, the AU considered and dis government argues The in its brief Citing cussed emotional distress. Gore v. $2,500 that (5th Cir.1977), designated additional Turner, as F.2d 159 563 compensatory damages by F.Supp. 876 the AU was Shonfeld, 409 Parker v. (N.D.Calif.1976), authority, apparently “compensation as the AU de based on for ac “intangible damages suf injury, termined that tual not on the abstract value of fered” also awarded addition to rights.” may could be “pre civil There be some “compensatory damages” and “inconven intangible injury sumed” from a violation 8 cases, however, ience.” Both of these Housing of the Fair Act reason of il damages discussion of allowable involved discrimination, legal but we have never de nei under 42 1981 and 1982 and U.S.C. §§ single gender cided that a act of discrimina damages for specifically approved ther triggers presumed damages tion for a deci Housing Fair emotional distress under the opinion “importance sionmaker’s Co., Inc., 712 Macy act. v. R.H. & Black rights civil as an abstract matter.” Mem (8th Cir.1983), referred to in F.2d 1241 later phis Stachura, Community Sch. Dist. v. discussion, was a the emotional distress 299, 308, 2537, 2543, 477 106 U.S. S.Ct. 91 case, not a Fair Hous Title VII and 1981 § (1986). $2,500 L.Ed.2d 249 The award for appear did not to the ing Act case. rights loss of civil made the AU was “a constitu AU to be “a man of vulnerable showing means of the loss of civil easily to distress.” tion who could be driven rights is a serious matter.” He also made angry, “it kind of He felt hurt and but was respect brief mention this award of get The Hol easy to over.” AU awarded taking away of choice as to where distress. Once ley for emotional $500 agree Holley would live. We do not with doubt, again, giving Holley the benefit of government that the intended this AU circuit has held heretofore since this anything but an added award for an Housing encompass dicta that the Fair Act intangible injury prov not in the nature of component in an emotional distress es compensatory damages. en context, v. race discrimination Stewart government Amicus curiae and the call (6th Cir.1985), Furton, 774 F.2d 710 case, unpublished to a recent our attention AFFIRM this award. The amount al (6th Beavers, 922 F.2d 842 Cir. Woods not erroneous under all the cir lowed was 1991), respect question. to this cumstances. also Smith v. Anchor See involved a combination Woods (8th Cir.1976); § Cory., F.2d 231 Bldg. Housing Act and Fair claims Ass’n, Phillips § v. Hunter Trials Comm. jury cannot tell also involved a trial. We (7th Cir.1982). The contention 685 F.2d 184 jury contested instruction which act the entirely episode, not in an different panel seemed any way, involved. Woods connected with allowed, including damage Housing involving "humili racial total ation,” award In a Fair Act case 7. discrimination, Co., essentially Realty Sky to a attributable Seaton v. 1974). $500. act, intimate, “badge slavery” stigmatizing (7th the total Cir. We do F.2d 634 however, allowed, including recompense, damages iation, humil $1,000 upon a limit such dam feeling," one’s "to ease ages. Co., Realty 478 F.2d $1000. See Steele v. Title Cir.1973). (10th comparable a somewhat award to be an We deem the "inconvenience” involving rent under 42 U.S.C. refusal to case "intangible damage” We consider a benefit. reversed a district the circuit court as addi- separate for "emotional distress” claim damage a total decision and remanded for court damages questionable, intangible be tional $1000. exceed Smith v. Adler award not to resolving doubt in the award but we affirm (7th Cir.1971). Co., Realty 436 F.2d 344 Holley’s favor. allegations case with under both 1982 another rent, Housing Act of refusal to and the Fair 582 compensable Housing injury may inju- Act ‘have caused Fair

indicate that that] (emphasis original) (quoting in ry....’”) under “impossible to measure” Stachu- Strickland, 308, nevertheless, standards, but, compen- from v. 420 U.S. is Wood ra 319, 992, 999, 43 L.Ed.2d 214 “physical inju or mental 95 S.Ct. absent sable even (1975). Piphus recognized proven Woods, slip op. 8. The thrust of at ries.” by decision, however, punitive a “mental and emotional distress” caused involved compensable. certain testi a constitutional violation damages award and whether 1052-53; 264, 98 at We find Id. 435 U.S. at S.Ct. mony was admissible. Woods cf. Co., Realty 491 F.2d 634 controlling Sky under the circumstances Seaton v. to be (7th Cir.1974) (permitting damages of urge $500 curiae that Havens Re here. Amicus distress”); Coleman, 363, 102 for “humiliation and Basista v. Corp. 455 U.S. alty v. Weir, (3d Cir.1965) (nominal (1981), 74 1114, 214 to which 340 F.2d 71 L.Ed.2d S.Ct. footnote, damages award was made for such but not by reference a holds made Woods such). rights Housing per for loss of civil as Stachura Fair Act violation se a disapproved concept of abstract “non- compensable injury. Havens establishes by plaintiffs compensatory” damages “unnecessary as showing a Realty involved 372, rights.” palpable injury,” at to vindicate ... constitutional Id. id. “distinct 309, 310, 2544, 1120-21, real 477 at 106 S.Ct. at at and the issue U.S. 102 S.Ct. plaintiffs whether certain 2544-45. discussed was standing standing. There had and retained This is not a case for a substitution for was, however, damages no award of for (such compensatory damages presumed as such, right, as in violation of a civil mere Here, case). damages in a defamation that case. approved two different areas of com have inconvenience, damages pensatory damages for the discusses allowable Stachura tort, distress, and hurt suffered of a constitutional and first emotional a case damages Holley. damages are The allowed have taken noted that such case recompense “intangible for according princi into account “ordinarily determined ” ‘dignitary discussed in Bran from the common law of interests’ ples derived (6th Cir.1983), Allen, 306, 719 F.2d 151 at 106 S.Ct. at 2543. don v. torts.” 477 U.S. “compensatory damages may grounds rev’d on other sub nom. Bran It added that 464, 873, Holt, out-of-pocket v. 469 U.S. 105 S.Ct. only include not loss and oth don (1984). harms, We have allowed ele monetary ‘impair but also ... L.Ed.2d 878 er damages which are difficult to reputation personal humilia ments of ment of ... ” 307, 106 compensate Holley for tion, anguish.’ measure order to and mental Id. 2543, single in this case of the Fair quoting Robert violation S.Ct. at Gertz v. 323, 350, damages totalling Inc., Housing Act. The Welch, $1500 418 U.S. 94 S.Ct. (1974). that the 2997, “roughly approximate The do the harm 41 L.Ed.2d 789 latter compensate [charging party] “emotional dis suffered components also include impossible to measure” as stated 106 S.Ct. at for harms tress.” Id. 477 U.S. at in Pembaur v. specifically that a and reiterated 2543. held Stachura Stachura Cincinnati, F.2d City as dam may trier of fact not also include (6th Cir.1989) (“damages pain for and suf “subjective perception impor ages fering, anguish and the like are rights as an mental tance of constitutional abstract available”). Walje City v. at 2543. See also Win Id. at 106 S.Ct. matter.” Cir.1987)(“The 10, 13(6th chester, AU, allowing damages 827 F.2d $2500 us that Court admonished subjective perception that violation of Stachura his damage for consti proper focus of awards Housing Act was a “serious mat this Fair compensatory and tutional torts should be Carey Piphus, ter” was error. See 1042, 1047-48, to common law 247, 255, proper it is to look 435 U.S. S.Ct. specific are (1978) principles ... where (“damages are avail 55 L.Ed.2d 252 establish.”)9 rights of constitutional difficult violations able [for pregnant; suspended job wife was months Walje unconstitutionally when his from his 8‘/> Baumgardner’s affected reaching ability negoti- decision under In our ate or permit on the issue of emotional conciliate his refusal to facts of this case Hol- inconvenience, pre ley inspect we do the house and denied him of distress and in damages opportunity an presumed of to work out a rental ar- clude an award rangement in in cases for rights claims all events but and his friends. civil prove clearly “egregious an actual This was not a case plaintiff fails of where may not award dam racial discrimination” as in injury. Secretary While a trier Blackwell, (11th Cir.1990), “subjective perception 908 F.2d 864 ages perceived for AU, rights by of referred to in which the statu- importance constitutional of $10,000 matter,” partic tory penalty may maximum civil of an abstract as $45,000 pre nearly in addition to that “some form of assessed ular situations appropri proven compensatory damages. enter- damages may possibly be We sumed case, Stachura, 311 n. tain a clear conviction in this 477 U.S. at based ate.” record, (emphasis upon n. 14 all the circumstances in the 106 S.Ct. added). on the facts of that an award excess of the allowed There is no need damages. any compensatory added for a civil presume $1500 case to excessive, unjust, penalty would be and sum, will set aside the award we We, therefore, improper. adjust the civil rights on damages of for loss of civil $2500 penalty damage Total award $1500. AU it is asserted because the basis therefore, damages, are determined to be unwarranted, subjective, additional as- $3000. beyond proper measure sessment proven in this case. compensatory damages damages for in- presumed some

We have IV. INJUNCTIVE RELIEF Holley, tangible dignitary interests opinion to our as an exhibit is Attached inconvenience, emo- allowed for his have injunctive order entered the AU in distress, hurt, anguish in and mental tional 55). (J/A this case. 54 and compensato- the total amount $1500 damages. ry per Paragraph one constitutes . against Baumgardner injunction manent Damages Penalty E. Civil against —Punitive future discrimination prescribing family Holley or his members “because Baumgardner had been Because race, retaliating or sex” and from color renting houses for real business estate injunction against him. We AFFIRM this preference not eight years, “expressed his there exception that we eliminate with the of his Complaint on the basis to rent to the “race and color.” There from the words sex,” misrepresented removing the claim, showing, in this case of any nor no market question from the rental house of race or color by reason discrimination this and (although previously had done he (and unneces an unwarranted and this is office), im the AU later used it for his acceptable sary) to the otherwise addition Baumgard- punitive against award posed a para make it clear language. We also this was a The AU conceded that ner. impose read to not be graph two should offense, that there was no other single Baumgard- upon special requirement discriminatory conduct evidence of law, as to ner, requirements of beyond the generally He rented Baumgardner’s part. keep records estate to anyone renting real females and to blacks to males and to or color. relating to race previ He had in his rental units. to whites major damage to the ously experienced three, amend the paragraph to As by single male question house tenants. require submission injunction so as only to applications rental copies of written that HUD’s have heretofore recited We beginning Janu- periods quarterly adversely HUD for complaint mismanagement of the nervous breakdown.” jeopar- close to a and "felt that his health insurance feared dized; pressure; emotional was under severe through include, ary to, December 1993. As to ed actions but are not limited applications, Baumgardner will re- oral all those regulations enumerated the co- quired keep years (1989). to and maintain for two dified at 24 CFR Part 100 adequate appli- records of the sex of oral Respondent shall institute record- persons inquire orally cants and who keeping operation prop- of his rental units; availability applicable rental the of adequate erties comply which are with dates; accepted; whether or not and the requirements Order, set forth in this rejected. if rejection, reason for including keeping all records described in required shall also be dur- paragraph 4 of this Respondent Order. ing keep and period said maintain a list permit representatives shall of in- HUD to gender occupants of and vacancies with the spect copy pertinent all records at rea- tenants, departed noted of the dates of sonable times after reasonable notice. rented, departure, gen- next and the when day every 3. On the last third month approve der of the new tenants. We beginning 31, 1991, March continuing requirement furnish to years, Respondent for three shall submit HUD, together copies of with written rent- reports containing following informa- applications during period, copies this al regarding previous months, tion three paragraph as reflected in advertisements properties for all owned or otherwise con- 3(d). Baumgardner shall also furnish HUD by Respondent, Chicago trolled to HUD’s sample representative with or leases and Regional Housing Office of Fair Equal changes or amendments thereto made dur- Blvd., Opportunity, 626 West Jackson Chi- ing period. year this two 60606-5601, cago, provided Illinois that the provisions approve paragraph We may director of modify that office this except, necessarily, four reference is to the paragraph Order, of this as deemed neces- order, opinion. this as amended Para- sary less, requirements to make its but not graphs provide five and six are amended to more, burdensome: $1500, payment, for in each instance of duplicate every a. a appli- written $3000, forty-five days total of within after cation, description every and written opinion becomes final. application, persons oral ap- for all who seven, respect paragraph With Baum- plied occupancy Respon- of all such gardner report writing is directed to property, including dent’s a statement of steps comply HUD the taken to with the person’s sex, person whether the provisions opinion, thirty of this within rejected accepted, or the date of such days after it becomes final. action, and, rejected, if the reason for the summary, we AFFIRM the rejection; ALJ’s finding liability. We REVERSE the b. a list of vacancies at all such Re- damages, awards of and award instead spondent’s properties including the de- in compensatory $1500 $1500 sex, parted tenant’s the date of termi- penalty, in civil total We $3000. notification, out, nation the date moved injunctive AMEND the order of relief as the date the unit was next committed to herein indicated. rental, tenant, the sex of the new and the in; date that the new tenant moves

APPENDIX c. current occupancy statistics indi- that, ORDERED cating Respondent’s proper- which of the occupied by ties are groups males or 1.Respondent is permanently enjoined males; including discriminating against Complainant, from Holley, any Blanton or member sample copies of his fami- d. of advertisements ly, respect housing, published posted because of during reporting race, color, sex, what, retaliating period, including and from any, dates and if against harassing Complain- used, or otherwise media was or a statement that no family. conducted; ant or member of his advertising Prohibit-

was well range within the normally award- ed for violations of the Act. persons inquired in e. a list of all who Supreme Recent precedent Court has left renting Respon- any manner about one of ability untouched a court’s pre- to award units, names, including dent’s their ad- sumed damages rights for civil violations dresses, sexes, disposi- and the dates and the absence of tangible injury. evidence of inquiries; tions of their 247, In Carey Piphus, v. 435 U.S. 98 S.Ct. rules, regula- description any f. a 1042, (1978), instance, 55 L.Ed.2d 252 tions, leases, documents, or other appealed defendants the lower court’s rul- thereto, changes provided signed by to or ing plaintiffs that would be entitled to applicants. tenants damages “substantial” for violation of Respondent 4. all shall inform his their right Fourteenth pro- Amendment to agents including employees, resident process cedural due even if the trial court managers, of the terms this Order and found that the ultimate adverse action tak- educate them shall as to these terms and against plaintiffs en justified. Id. at requirements Housing the Fair Act. 252-53, 98 holding S.Ct. 1046-47. In forty-five days 5. Within date finding that such a plaintiffs would entitle which this Initial Decision and Order is to only damages, nominal the Court rea- issued, Respondent pay damages shall that, soned if defendants’ adverse action $5,000.00 Complainant the amount of to to was justified, inappropri- indeed it would be compensate him for the losses that resulted presume plaintiffs ate to that had suffered Respondent's discriminatory activity. from actual, 263, compensable injury. Id. at However, 98 S.Ct. at 1052. the Court was forty-five days 6. Within of the date careful analysis to note that its did not this that Initial Decision and Order be- automatically transfer all deprivations to final, Respondent pay comes shall a civil rights: constitutional $4,000.00 penalty Secretary, to the Unit- Department Housing ed States and Ur- prerequisites elements and for re- [T]he Development. ban covery damages appropriate com- pensate injuries by depriva- caused days 7. Within fifteen of the date that right tion of one constitutional are not final, Respondent this Order becomes shall appropriate compensate in- necessarily Chicago report Region- submit a to HUD’s juries by deprivation of anoth- caused Housing Equal Oppor- al Office of Fair said, er. As we have these issues must tunity steps that sets forth the he has to the na- be considered with reference comply provisions taken to other protected ture of the interests of this Order. particular right ques- constitutional tion. Robert A. Andretta (citation 264-65, Id. at 98 S.Ct. at 1053 Judge Administrative Law omitted); Allen, 719 see also Brandon v. 15, Dated: November 151, (6th Cir.1983), F.2d 154-55 rev’d on JONES, Judge, NATHANIEL R. Circuit 873, 105 S.Ct. grounds, other U.S. concurring. (1985). 83 L.Ed.2d 878 disposition in fully majority’s While I concur in the The Court’s more recent opinion, separately Memphis Community I write to reenforce the District School Stachura, majority’s presumed dam- 477 U.S. 106 S.Ct. observation (1986), fore- rights likewise does not ages may appropriate be for civil L.Ed.2d 249 violations, presumed damages un- including arising those under close an award for Stachura, re- Act, the Court Housing Fair 42 U.S.C. 3601- der the Act. §§ plaintiff’s (1988)(the “Act”), under 1983 on and to note that the versed an award § rights violated his damages amount of awarded the admin- claim that defendants Amendment, ad- (“AU”), where in judge perhaps istrative law while under the First case, punitive dam- compensatory supported by the evidence dition to jury (holding general damages may ap- instructed the ages, the court right the value of the plaintiff propriate for violation of First Amendment could award 1983). right speech brought the abstract: free under place upon any precise you “The value case, Holley presented In the evi- instant you find was right which Constitutional of, for, dence and was awarded your discre- to Plaintiff is within denied injury the actual he suffered as a result of im- may tion. You wish consider Baumgardner’s discriminatory refusal portance right system in our dwelling subject rent the on the basis of right government, the role which this has Therefore, Holley’s agree I sex. with the republic, played history in the of our need on majority that there was no the right in significance of the the [and] “presume” damages. facts of this case to which the Plain- context of the activities Stachura, 310, at 106 at See 477 U.S. S.Ct. engaged in at the time of the tiff was (“Presumed damages are a substitute 2545 right.” violation ordinary compensatory damages, not for 303, 106 (quoting at Id. at S.Ct. at 2540 J.A. fully supplement for an that com- award 94). objected to the instruction The Court alleged injury.”). agree I pensates the also ground permitted on that it an award that the AU’s allowance of the award “as jury’s subjec merely on the basis of “the showing a means of that the loss of civil perception importance of 'the of consti tive rights is a serious matter will not be rights tutional as an abstract matter.” Id. forum,” 52, disregarded by this J.A. at noted, 308, at The Court at 106 S.Ct. intent, perhaps in while laudable its treads however, plaintiff seeks “[w]hen closely too to the award found “abstract” likely compensation injury for an that is to Nevertheless, objectionable in Stachura. establish, to have occurred but difficult to come forth with had been unable presumed damages may pos some form of compensable injury, evidence of he direct 310-11, appropriate.” at sibly be See id. merely would not have been limited to nom- Indeed, at the Court 106 S.Ct. 2544-45. damages, been inal but rather would have pre appropriateness reaffirmed the of damages. presumed to seek entitled damages involving, in for in sumed cases although agree I that the evi Finally, stance, vote, right ground on the “ by Holley sparse presented dence was too right that dam that the ‘is so valuable damages by the support awarded wrongful dep ages presumed are from the ALJ, conclusion should not be read as evidence of actual rivation of it without $1,500 any money, property, implying other valu award loss of ” 14, upper compen limit thing.’ Id. at 311 n. 106 S.Ct. at sense constitutes an able Venable, survey 260 A (quoting Wayne 2545 n. 14 v. for of the Act. sation violations (8th Cir.1919)). 64, unequivo F. 66 our circuit of recent cases from cally establishes that awards excess recognized repeatedly has This court by the AU in this the amount awarded nor forecloses an Carey neither Stachura See, e.g., warranted. Green case are often presumed damages for civil award (6th 460, 462, 21, 465 740 F.2d Century v. appropriate rights circum- violations $30,000 Cir.1984) (upholding award Thus, Brandon, we held that stances. $11,000 against against one defendant preclude an under Carey did not award' for racial discrimination viola another damages flowing presumed 1983 § Act); Crosson, 1 Fair tion of the Stewart v. police officer’s unconstitutional as- from a (P-H) Lending Housing-Fair Cases ¶ Brandon, plaintiff. 719 F.2d at sault on 15,596, 1019, (D.Tenn.1988)(awarding 1019 at recently, City in Pembaur v. 155. More $6,000 daughter mother and (6th Cir.1989), Cincinnati, F.2d 1101 882 resulting from inferior hous for discomfort prohibit did not we held that Stachura Bramel, F.Supp. 669 ing); Pollitt v. damages for presumed award of a civil 1987) $25,000 (S.D.Ohio (awarding brought under 177 rights action 1983. See housing on the basis of race 1104; denied couple Walje City see also id. Act); Cassar, (6th Shaw v. Winchester, Cir.1987) 827 F.2d in violation (E.D.Mich.1983) F.Supp. housing $20,000 couple denied (awarding Act). in violation of of race basis pro- more

Therefore, Holley presented had of his regarding the extent evidence

bative otherwise, it would

injury, economic the ALJ’s well within

certainly have been Holley in amount compensate

discretion to of the amount even in excess

equal to and in this case.

awarded America,

UNITED STATES

Plaintiff-Appellee, (90-6366); Jerry

Henry Stokes SIVILS (90-6376);

(90-6375); Dillard William (90-6420), Defen- Jordan

and Sherrill

dants-Appellants. 90-6366, 90-6375, 90-

Nos. and 90-6420. Appeals, States Court

United Circuit.

Sixth 13, 1991.

Argued Nov. March

Decided

Case Details

Case Name: Thomas C. Baumgardner v. The Secretary, United States Department of Housing and Urban Development, on Behalf of Blanton B. Holley

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 31, 1992

Citation: 960 F.2d 572

Docket Number: 91-3039

Court Abbreviation: 6th Cir.