APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 75-13.
Adams, Rosenn, and Weis, Circuit Judges. Weis, Circuit Judge, concurring and dissenting.
In this case, we are called upon to determine several significant issues growing out of a civil rights action commenced by Michael Meyers, a Negro, charging Pennypack Woods Home Ownership Association with discrimination against Negroes in housing and membership.
Pennypack Woods Home Ownership Association ("Pennypack" or "the Association") is a non-profit Pennsylvania corporation organized in 1952 which owns and manages a community of a thousand separate housing units of one, two, and three-bedrooms in northeast Philadelphia. Each resident of Pennypack Woods is a member of and owns a one-thousandth undivided interest in the Association while Pennypack itself holds fee simple title to all the homes. A member of Pennypack enjoys perpetual use of a house pursuant to a "Home Security Policy" so long as he complies with Pennypack's rules and regulations.
The demand for housing at Pennypack exceeds the supply and the Association has developed a complex system for filling vacancies. A member may transfer his Home Security Policy to certain close relatives, such as a parent or child, either by testamentary or inter vivos instrument, but such a member-resident may not otherwise "sell" his or her house. Units not transferred to relatives are allocated to Pennypack itself. First preference in disposing of two and three-bedroom units is given to current member-residents of Pennypack whose increased family size qualifies them for larger houses. Second preference is to children of current Pennypack members, thereby giving children who have not received their parents' house by transfer priority over outsiders in acquiring another Pennypack home. Those units which are filled neither by transfer to a relative nor by allocation to present Pennypack members or their children are then offered to persons who have been interviewed and placed on an approved waiting list. Any house still vacant would then, according to Pennypack's rules, be offered to a list of outsiders not yet interviewed or approved.
On September 6, 1971, plaintiff applied by letter to Pennypack for a three-bedroom house for himself, his mother, and his three younger siblings. Pennypack replied that the list for three-bedroom homes was closed, which was in fact the case.*fn1 In April 1972, Meyers once again wrote to Pennypack and asked to have his name placed on the waiting list and Pennypack again informed him that the list had been closed prior to his first application. In May 1972, Meyers' counsel made a written demand that Meyers' name be placed on the list ahead of persons applying after September 6, 1971. Pennypack refused to comply with Meyers' demand.
On January 3, 1975, having failed in his efforts to secure Pennypack housing, Meyers brought an action against Pennypack and Marion Steinbronn, its president, in the United States District Court for the Eastern District of Pennsylvania alleging racial discrimination and seeking equitable relief, compensatory and punitive damages and attorney's fees under the Civil Rights Act of 1866, 42 U.S.C. § 1982 (1970), and the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. (1970). Following a non-jury trial, the district court found that Pennypack had never had a black member since its inception in 1952 although blacks comprise 34 percent of Philadelphia's population. The court found, however, that
the absence of black members of Pennypack is largely explained by the fact that few black persons have inquired about or applied for membership in Pennypack.
The district court further found that at all relevant times except for the summer of 1971 when he lived adjacent to Pennypack Woods,*fn2 Meyers resided in the Bronx, New York, and that he had never sought housing in Philadelphia except for his application to Pennypack.*fn3 Based on these facts, the court concluded that Meyers was a "tester" rather than a bona fide applicant for Pennypack housing.
The district court entered judgment for defendants on three grounds, any one of which, in the opinion of the district court, would alone have furnished sufficient support for the judgment: (1) that Meyers was not a bona fide applicant; (2) that both of Meyers' claims were barred by the Statute of Limitations; and (3) that Meyers had failed to prove that defendants had discriminated against him because of his race. Meyers appeals from that judgment.
The first issue we must consider is standing. Having found that Meyers was a "tester," the district court held without citation that "the absence of a good faith offer on the part of Meyers is a complete defense to his complaint under the Fair Housing Act of 1968 as well as the Civil Rights Act of 1866." We need not review the holding that a plaintiff's lack of bona fides is a defense to a claim for relief under the Fair Housing Act*fn4 since we hold in Section III, A, infra, that Meyers' claim under that Act is time-barred. However, we are required to review the district court's holding as it applies to §§ 1981 and 1982.
The gist of the district court's holding that Meyers' status as a "tester" bars him from relief under §§ 1981 and 1982 is, as we understand it, that Meyers lacks the personal interest or stake in Pennypack's policies which is required to give him standing to sue. See, e.g., Tileston v. Ullman, 318 U.S. 44, 87 L. Ed. 603, 63 S. Ct. 493 (1943).*fn5 In appealing from this aspect of the district court's decision, Meyers asserts that the court's finding that he was a "tester" is clearly erroneous but we need not review the court's finding of fact. Even assuming arguendo that Meyers' application to Pennypack was in fact motivated solely by his desire to test the legality of Pennypack's policies, such a purpose is sufficient to confer standing. See, e.g., Smith v. YMCA of Montgomery, 462 F.2d 634, 645-46 (5th Cir. 1972). In Evers v. Dwyer, 358 U.S. 202, 3 L. Ed. 2d 222, 79 S. Ct. 178 (1958) (per curiam), the Supreme Court held that a black plaintiff had standing to maintain a civil rights action even though his purpose in sitting in the white section of a segregated bus was to test the legality of the segregation. The Court reiterated the same principle nine years later in Pierson v. Ray, 386 U.S. 547, 558, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). A group of clergymen from various Northern states, Pierson v. Ray, 352 F.2d 213, 215-16 (5th Cir. 1965), travelled to Jackson, Mississippi, and entered that city's bus terminal "for the sole purpose of testing their rights to unsegregated public accommodations." The Court held that
The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under § 1983.
386 U.S. at 558 (footnote omitted). We therefore hold that Meyers has standing to maintain ...