518 F.2d 884 (5th Cir. 1975), 74-1414, United States v. Northside Realty Associates, Inc.

Docket Nº:74-1414.
Citation:518 F.2d 884
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., et al., Defendants-Appellants.
Case Date:September 04, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 884

518 F.2d 884 (5th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

NORTHSIDE REALTY ASSOCIATES, INC., et al., Defendants-Appellants.

No. 74-1414.

United States Court of Appeals, Fifth Circuit

September 4, 1975

Page 885

Harold L. Russell, Lloyd Sutter, Atlanta, Ga., for defendants-appellants.

William B. Saxbe, Atty. Gen., Dept. of Justice, Jerris Leonard, Asst. Atty. Gen., Frank E. Schwelb, Chief, Housing Section, Civ. Rights Div., David T. Kelley, Harold H. Moore, Atty., J. Stanley Pottinger, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Thomas N. Keeling, Housing Section, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion September 23, 1974, 5 Cir., 1974, 501 F.2d 181).

Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In a spirited Petition for Rehearing and Rehearing En Banc, the Appellant principally argues that United States v. Northside Realty Associates, Inc., 5 Cir., 1974, 501 F.2d 181 (Northside II ) and United States v. Northside Realty Associates, Inc., 5 Cir., 1973, 474 F.2d 1164 (Northside I ) conflict with the intervening decision of this Court in United States v. Pelzer Realty Co., 5 Cir., 1973, 484 F.2d 438. But in no sense does the Petition for Rehearing and more important the supporting brief stop there.

While we understand Appellant's concern regarding the disposition of this case, we are struck by counsel's excessive language in Appellant's brief on petition for rehearing, riddled as it is with inaccuracies.

First, Appellant asks that

somebody examine the facts of this case and make a considered judgment on the question whether there has been a denial of rights raising an issue of general public importance. 1 The district court did not do it; this Court did not do it; and no Attorney General has done it.

(Petition for Rehearing Brief for Appellant at 2, Northside II ).

Contrary to Appellant's statement above, the Government did in fact claim a "pattern and practice of resistance" and therefore asks for an injunction. 1 Further, the District Court's Order of December 30, 1971 specifically held that a group of people had been denied the protection of the Fair Housing Act as claimed by the Government and an injunction was appropriate. 2

This Court also recognized that the Government sought injunctive relief and claimed a pattern and practice of resistance

Page 886

to the Fair Housing Act, thus raising an issue of general public importance. Northside I, 474 F.2d at 1165. And, except for the infection of the unconstitutional "penalty" on the realtor for obdurate opposition to the Act, we stated that the finding was amply supported, and we remanded for a further explanation of the reasons for a finding of discrimination and whether they were tainted by this impermissible burden. 3

On remand the District Court clarified its original opinion to specifically hold that Northside's Vice-President Isakson's challenge to the constitutionality of the Fair Housing Act was not a consideration in its finding of a violation of the Act, and that its decision stood on more than the single incident with Bowers that the Bowers pre-Act incident was used to highlight the similarity to other discriminatory incidents that followed. Supplemental Appendix at 14, Northside II.

When appealed to this Court for the second time, we reviewed the District Court's new order and determined that the District Court had complied with the guidelines in our earlier opinion, see note 3, supra, and therefore affirmed the decision. Northside II, supra, 501 F.2d at 182.

In language reflecting an unfortunate absence of professionalism, counsel for appellant next inveighs against our failing to mention and follow a Fourth Circuit opinion holding that the Government must prove discrimination of general public importance before granting injunctive relief. 4 Perhaps counsel is not aware that this Court is bound only by decisions of this Circuit and the Supreme Court of the United States. However, in this instance, counsel has been doubly wrong since we have in fact even complied with the standards of the Fourth Circuit for the District Court recognized that the Government had the burden of proof in showing a violation of the Fair Housing Act. 5 Moreover, Hunter is of little help to appellant's argument. In that case, the Fourth Circuit held two isolated, allegedly discriminatory acts insufficient to establish a pattern or practice of resistance. 459 F.2d at 217. Nonetheless, the Hunter Court held that, under the same facts, the Government "clearly" had established its right to bring the case as raising an issue of general public importance. 459 F.2d at 217-218. Hunter thus is of little solace to a party arguing that even though a violation of the Fair Housing Act has been established, the issue is still not one the Attorney General might deem to be of public importance.

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After an examination of the facts, the District Court then determined that the burden had been met and held that this "denial is of sufficient public importance to authorize the relief herein granted." Supplemental Appendix at 17, Northside II. And one relief specifically listed for violations of the Fair Housing Act is an injunction. 6

Appellant next asserts that inconsistencies exist in our final opinion in Northside II, asserting that in one breath we state that what is an issue of public importance is within the discretion of the Attorney General, and in the other that it did not matter that the Attorney General had failed to make such a determination here. 7 The only inconsistency, however, seems to be in counsel's misreading of what is actually there. We stated in both Northside I & II that the determination of what is an issue of public importance in order to bring an action under the Fair Housing Act is within the Attorney General's discretion. Northside, supra, 501 F.2d at 182, 474 F.2d at 1168. Appellant urges that whenever a...

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