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Fair Housing Council of Suburban Philadelphia v. Montgomery Newspapers

U.S. Court of Appeals, Third Circuit

March 31, 1998


Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 96-cv-01381) Argued September 9, 1997

Before: Mansmann and Nygaard, Circuit Judges and Bloch, District Judge*

The opinion of the court was delivered by: Mansmann, Circuit Judge.

March 31, 1998


The Fair Housing Council of Suburban Philadelphia ("FHC") appeals an order of the district court granting summary judgment in favor of Montgomery Newspapers ("Montgomery"), the papers' publisher, and their classified advertisements editor in an action filed pursuant to the Fair Housing Act, 42 U.S.C. §§ 3604 and 3617, and the Pennsylvania Human Relations Act, 43 P.S. § 955. The district court's grant of summary judgment was based on its Conclusion that the FHC lacked standing under Article III of the United States Constitution to maintain this suit. Because we are convinced by the unique set of facts surrounding the section 3604(c) claims that the FHC has failed to satisfy the "injury in fact" requirement embodied in Article III, we find that the grant of summary judgment as to those claims was appropriate. As to the section 3617 retaliation claims, however, we find that the FHC has raised issues of fact sufficient to withstand Montgomery's motion for summary judgment. We will, therefore, reverse the district court's entry of summary judgment as to the retaliation claim and remand for further consideration.


The FHC, a fair housing group which has operated in the Philadelphia area for more than forty years, defines itself as a non-profit organization whose "purpose is to educate and promote fair housing and to oppose segregation based on the protected classes found in the Fair Housing Act of 1968, as amended." On April 6, 1994, the FHCfiled a complaint with the Pennsylvania Human Relations Commission ("PHRC") and HUD alleging that from November 24, 1993 forward, Montgomery "accepted and published advertisements that were discriminatory based on gender and familial status" in violation of state and federal law. The complaint included copies of six advertisements which appeared in Montgomery newspapers between November, 1993 and March, 1994. Each of these

advertisements contained one of the following allegedly objectionable phrases: "mature person"; "ideal for quiet and reserved single and-or couple"; "professional male . . . only"; and "quiet mature setting." On January 5, 1996, the PHRC notified the FHC that "investigation of the complaint resulted in a Finding of Probable Cause. . . ."

According to the FHC, Montgomery "continued publishing discriminatory speech." Therefore on February 21, 1996, the FHC filed suit in district court. An amended complaint was filed on April 10, 1996. In the amended complaint, the FHC alleged that Montgomery's acceptance and publication of discriminatory housing advertisements frustrated the organization's mission and resulted in damage to the organization caused by the need to divert resources to fight the discrimination. The FHC also alleged that as a result of the discriminatory advertisements, "families with children were barred from housing" in violation of state and federal law.

The amended complaint added allegations that Montgomery had intimidated, coerced, interfered with and retaliated against the FHC as a result of the FHC's complaint against Montgomery. The FHC contended that in newspaper articles, testimony before the state legislature, and other false statements made by or on behalf of Montgomery, the FHC had been placed in a position of ridicule which impaired the organization's effectiveness.

On September 25, 1996, Montgomery filed a motion for summary judgment which was granted on January 6, 1997. The district court held that the FHC lacked standing to pursue any of the claims alleged.

In arriving at this Conclusion the district court separated the FHC's damage claims into three categories: (1) frustration of the FHC mission; (2) diversion of resources to measures designed to correct the harm caused by the discriminatory advertising; and (3) diversion of resources to litigation.

Analyzing the first category of claims, the court found that frustration of an organization's mission can never, as a matter of law, suffice to satisfy the Article III requirement of injury in fact. With respect to the alleged diversion of

resources to programs designed to counteract the discrimination, the district court found that the FHC "failed to set forth specific evidence demonstrating that its various programs have been `perceptibly impaired as a result of the diversion of its resources . . . to activities counteracting allegedly discriminatory acts.' laintiff has failed . . . to initiate any such educational program or to expend any funds at all on the development of such a program." Fair Housing Council v. Montgomery Newspapers, 1997 WL 5185 *7 (E.D. Pa. Jan. 7, 1997).

The court also rejected the FHC's argument that it had suffered injury for purposes of Article III when it was forced to divert resources from other programs to the pursuit of litigation. "uch an injury cannot constitute, as a matter of law, an injury in fact." Id. at *6. The court reasoned that finding this type of injury sufficient would mean that an organization would be able to "manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit." Id. at *5 (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)).

This timely appeal followed.


In order to place the district court's holding and our review of that holding in context, we turn first to the law governing standing in general. Constitutional standing requirements have been articulated often. The Supreme Court summarized the history and parameters of those requirements most recently in Raines v. Byrd, ___ U.S. ___, 117 S. Ct. 2312 (1997). Article III § 2 of the Constitution confers jurisdiction in the federal courts over"cases" and "controversies." "One element of the case or controversy requirement is that [the plaintiffs], based on their complaint, must establish that they have standing to sue. The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit." Id. at 2317 (citation omitted).

The standing inquiry in most cases is two-tiered, involving "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise."

Warth v. Seldin, 422 U.S. 490, 498 (1975). First, a plaintiff must satisfy the "case" or "controversy" requirement of Article III. This requirement has been described as "immutable", Bennett v. Spear, ___ U.S. ___, 117 S. Ct. 1154, 1163 (1997) and as the "irreducible constitutional minimum." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The standing requirements embodied in the "case" or "controversy" provision of Article III mean that in every case, the plaintiff must be able to demonstrate:

An "injury in fact" -- an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; second, there be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly trace to the challenged action of the defendant, and not .. . the result the independent action of some third party not before the court. Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Id. at 560-61. Each of these elements of Article III standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Bennett v. Spear, at 1163-64 (quoting Lujan, 504 U.S. at 561).

Even where this constitutional minimum has been met, courts have developed other standing principles which may be invoked to defeat a plaintiff's standing to pursue a claim.

In addition to the immutable requirements of Article III, "the federal judiciary has also adhered to a set of prudential principles that bear on the issue of standing." Like their constitutional counterparts, these "judicially self-imposed limits on the exercise of federal jurisdiction" are "founded in concern about the proper -- and properly limited -- role of the courts in a democratic society" but unlike their constitutional counterparts, they can be modified or abrogated by Congress.

Id. at 1161 (citations omitted). These second-tier prudential limits on standing deal with who is authorized to invoke the courts' decisional and remedial powers. The Supreme Court in Warth v. Seldin, 422 U.S. 490, 499-500 (1975), summarized these prudential limits as follows:

Apart from minimum constitutional mandate, this court has recognized other limits . . . . First, the Court has held that when the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone does not warrant exercise of jurisdiction. Second, even when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirements, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of other parties. Without such limitations . . . the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent . . . and judicial intervention may be unnecessary to protect individual rights.

(Citations omitted.)

Congress may grant an express right of action to those who would otherwise lack standing due to application of the prudential requirements. So long as the Article III minimum requirements are met, a plaintiff may, where Congress directs, have standing to "seek relief on the basis of the legal rights and interests of others, and . .. may invoke the general public interest. . . ." Id. at 500. Prudential standing requirements have been eliminated in cases arising under the Fair Housing Act ("the Act").1 The Supreme Court has established that Congress intended that standing under the Fair Housing Act be limited only by Article III and that the courts, as a result, may not create prudential barriers to standing under the Act. "he sole requirement for standing to sue [under the Fair Housing Act] is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant's actions he has suffered `a distinct and palpable injury.' " Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (citations omitted).


In this matter we must decide whether the FHC has shown "distinct and palpable injury" sufficient to satisfy Article III standing requirements under the Fair Housing Act. The parameters of the injury requirement were addressed by the Supreme Court in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In Havens, a realty company and one of its employees were alleged to have engaged in racial "steering" in violation of the Fair Housing Act. The plaintiffs included a housing organization, Housing Opportunities Made Equal ("HOME"), which had a mission generally similar to that of the FHC here. HOME alleged that it had suffered injury as a result of the "steering," claiming that its counseling and referral services had been frustrated with a consequent drain on its resources. The complaint also contained allegations that individual plaintiffs had been "deprived . . . of the . . . benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices." Id. at 369. The Supreme Court held that HOME was entitled to sue in its own right.

After explaining that standing under the Fair Housing Act is constrained only by Article III requirements and outlining those requirements, the Court wrote:

In determining whether HOME has standing under the Fair Housing Act, we conduct the same inquiry as in the case of an individual: Has the plaintiff " `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction?" . . . If, as broadly alleged, petitioner's . . . practices have perceptibly impaired HOME's ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities -- with the consequent drain on the organization's resources-- constitutes far more than simply a setback to the organization's abstract social interests.

Id. 455 U.S. at 378-79 (citations omitted) (emphasis added).

Before we analyze the FHC's particular allegations of harm, we note that there is a critical distinction between Havens and this case. In Havens, the plaintiff 's damage allegations were examined in the context of a motion to dismiss. Here, however, the issue of standing was before the district court on a motion for summary judgment. While there is no dispute that the FHC's damage allegations2 track the language in Havens and were sufficient to withstand a motion to dismiss, something more than these naked allegations was required at the summary judgment stage. "Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561.

In order to defeat the summary judgment motion based on the issue of standing, the FHC was required to submit "affidavits or other evidence showing through specific facts . . . that . . . it `directly' affected [by the alleged discrimination]." Id. at 562 (emphasis added). According to the district court, the FHC failed to carry its burden at summary judgment, producing nothing of substance to support the mere allegations set forth in the complaint. As to the discrimination claims, we agree.


Because both the FHC and the district court considered by category the damage claims based on alleged discrimination, we do the same, turning first to the allegations regarding frustration of mission. In an effort to establish standing, the FHC argued that the discriminatory advertisements "cause a setback to the good work accomplished by the FHC's educational outreach efforts and to the development of an integrated housing community." The district court rejected this alleged "frustration of mission" as a basis for organizational standing, stating that "such an injury cannot constitute, as a matter of law, an `injury in fact.' " Fair Housing Council, 1997 WL 5185 at *4. This is not an accurate statement of the law. Havens made clear that where discriminatory "practices have perceptibly impaired [an organization's ability to carry out its mission], there can be no question that the organization has suffered injury in fact." 455 U.S. at 379. Nonetheless, we are convinced that the allegations of frustration of mission were insufficient to defeat summary judgment as the FHC failed to substantiate any perceptible impairment to its mission.

The FHC contends that its mission suffered the impairment required to establish standing when it was forced to divert resources from counseling and other activities to: (1) an educational campaign designed to counteract the discriminatory effect of the advertisements; (2) an investigation designed to determine the existence and extent of on-going discrimination in advertising; and (3) litigation. We address the FHC's alleged diversion of resources in each of these categories seriatim.


We turn first to the FHC's claim that it was damaged by the need to divert funds "over the course of three years to repair damage caused by" the discriminatory advertisements. Although pressed to do so in discovery and in oral argument before us, the FHC was unable to establish any connection between the allegedly discriminatory advertisements underlying this suit and the need for or implementation of a remedial educational campaign. The FHC was unable to verify that any member of the public had been denied housing or was deterred from seeking housing based on the advertisements. The FHC was also unable to establish that any member of the public complained about the contents of the advertisements or formed a misimpression about the legality of their contents. In fact, the FHC was unable to show that anyone other than the FHC staff even read the relevant advertisements.3 Not only did the FHC fail to introduce evidence of the need for an educational program, it failed to show that any educational effort was ever implemented.

The only evidence relating to implementation of an educational effort was the FHC's allegation that, at some future time, it would be required to spend almost $100,000 in newspaper advertising and over $300,000 in seminars and mailings to reach consumers to counter the advertisements' discriminatory message. Although the questionable advertisements were published in 1993 and 1994, the FHC admitted that it has yet to undertake any educational countermeasures or to offer counseling directed at reversing the damage alleged to have been caused by the advertisements. The FHC was unable to say when such measures might be undertaken or when funds might actually be expended in support of this educational effort. These inchoate plans for future programs are insufficient to demonstrate injury for purposes of Article III:

Such "some day" intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support afinding of

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