Spann v. Colonial Village, Inc.

• Decision Date: 13 March 1990
• Docket Number: 88-7260,Nos. 88-7257,s. 88-7257
• Citation: 899 F.2d 24,283 U.S. App. D.C. 216
• Parties: , 283 U.S.App.D.C. 216, 16 Fed.R.Serv.3d 964 Girardeau A. SPANN, et al., Appellants, v. COLONIAL VILLAGE, INC., et al. Girardeau A. SPANN, et al., Appellants, v. Marvin J. GERSTIN, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 24

899 F.2d 24

102 A.L.R.Fed. 695, 283 U.S.App.D.C. 216,

16 Fed.R.Serv.3d 964

Girardeau A. SPANN, et al., Appellants, v. COLONIAL VILLAGE, INC., et al.

Girardeau A. SPANN, et al., Appellants, v. Marvin J. GERSTIN, et al.

Nos. 88-7257, 88-7260.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 30, 1990.

Decided March 13, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action Nos. 86-2917 & 86-3196).

Niki Kuckes, with whom William H. Jeffress, Jr., David G. Webbert, Washington, D.C., and Kerry Alan Scanlon were on the brief, for appellants.

Reuben B. Robertson, Washington, D.C., for appellees, Colonial Village, Inc. and Mobil Land Development Corp. in No. 88-7257.

Peter L. Sissman, Arlington, Va., for appellees, Marvin Gerstin Associates and Marvin Gerstin in No. 88-7257 and No. 88-7260.

Before WALD, Chief Judge, and RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Plaintiffs-appellants seek to pursue claims that real estate advertisements placed by defendants-appellees featuring white models to the exclusion of black models violated the Fair Housing Act of 1968 (FHA), 42 U.S.C. Secs. 3601-31. The district court held the claims time-barred. We reverse that determination and remand for further proceedings.

The appeal involves consolidated actions against two unrelated sets of defendants. In the first action, commenced in October 1986, the co-defendants are Colonial Village, Inc. (Colonial), owner and manager of a residential condominium in Arlington, Virginia, and Mobil Land Development Corporation (MLDC); Colonial is wholly owned by MLDC which, in turn, is wholly owned by the Mobil Corporation, a publicly-held corporation. In the second action, commenced in November 1986, the co-defendants are Marvin J. Gerstin and the advertising agency he is alleged to own and control, Marvin Gerstin Associates, Inc. Both sets of defendants are charged with running discriminatory ads regularly in The Washington Post from January 1985 through the spring of 1986.

Plaintiffs are Girardeau A. Spann, a black resident of the District of Columbia, the Fair Housing Council of Greater Washington, and the Metropolitan Washington Planning & Housing Association. Both organizational plaintiffs are non-profit corporations dedicated to ensuring equality of housing opportunity through education and other efforts. Requesting injunctive relief and damages, plaintiffs rely primarily on section 804(c) of the FHA, which declares it unlawful

[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make such preference, limitation, or discrimination.

42 U.S.C. Sec. 3604(c). Plaintiffs additionally assert 42 U.S.C. Secs. 1981, 1982 in support of their claims.

The procedural course of this litigation has not been smooth. We describe it summarily. After consolidating the two cases in January 1987, the district court scheduled briefing on dispositive motions. In May 1987, that court ruled for defendants 1) dismissing for failure to state a claim upon which relief can be granted plaintiffs' pleas under 42 U.S.C. Secs. 1981, 1982, and 2) granting summary judgment striking out the FHA claims as time-barred. Spann v. Colonial Village, Inc., 662 F.Supp. 541 (D.D.C.1987).

Plaintiffs' appeal from the district court's May 1987 decision was aborted when Colonial moved in this court to dismiss for want of the requisite finality. Colonial pointed out that the district court had left unaddressed co-defendant MLDC's objection that MLDC was neither properly served nor amenable to service in the District of Columbia. A motions panel of this court, in response to Colonial's plea, dismissed the appeal "without prejudice for lack of a final order under Fed.R.Civ.P. 54(b) and 28 U.S.C. Sec. 1291." Spann v. Colonial Village, Inc., Nos. 87-7118 & 87-7119 (D.C.Cir. Apr. 6, 1988).

The district court then endeavored to "make[ ] the judgment in these cases final." In an October 1988 decision, that court resolved two matters: (1) it denied MLDC's motion to dismiss or quash service of process; and (2) it dismissed the Gerstin defendants' motion for sanctions under Fed.R.Civ.P. 11. Spann v. Colonial Village, Inc., 124 F.R.D. 1, 2 (D.D.C.1988). As to the former, the district court concluded that, because MLDC was notified of the suit through service on Colonial, its subsidiary, "service was properly effected on [MLDC]." Id. at 3. On sanctions, the district court found the Gerstins' application "frivolous," because plaintiffs' assertions had a "reasonably defensible basis in fact and law." Id.

Plaintiffs once again appeal. We take up first the question of standing and explain why the organizational plaintiffs meet that threshold requirement. We next address the timeliness of the appeal, and the issue of personal jurisdiction over MLDC. Finally, we consider the vitality of the claims in suit, and hold that the FHA claims were not pursued too late.

Standing

The initial issue in these cases is whether plaintiffs possess standing to invoke the jurisdiction of the federal courts. No "prudential standing" inquiry is in order, however, because Congress intended standing under the Fair Housing Act to extend to the full limits of Article III. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1120, 71 L.Ed.2d 214 (1982). We therefore consider only core Article III standing.

The plaintiff organizations, the Metropolitan Washington Planning & Housing Association (MWPHA) and the Fair Housing Council of Greater Washington (FHC), assert standing to sue on their own behalf, and we turn now to those assertions. An organization has standing on its own behalf if it meets the same standing test that applies to individuals. The organization must show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

Accordingly, just as an individual lacks standing to assert " 'generalized grievances' about the conduct of Government," see Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974), so an "organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976) (citing Sierra Club v. Morton, 405 U.S. 727, 738-40, 92 S.Ct. 1361, 1367-68, 31 L.Ed.2d 636 (1971)); see Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 255 (D.C.Cir.1983) (private organization with "vibrant interest in," but not "adversely affected" by, challenged agency action lacks standing). If, however, an organization points to a "concrete and demonstrable injury to [its] activities," not "simply a setback to the organization's abstract social interests," the organization will have passed through the first gateway. Havens, 455 U.S. at 379, 102 S.Ct. at 1124.

That the alleged harm affects the organization's noneconomic interests--for example, its interest in encouraging open housing--"does not deprive the organization of standing." Id. at 379 n. 20, 102 S.Ct. at 1124 n. 20 (internal citation omitted). An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation. See Haitian Refugee Center v. Gracey, 809 F.2d 794, 799 n. 2 (D.C.Cir.1987) (opinion of Bork, J.). Havens makes clear, however, that an organization establishes Article III injury if it alleges that purportedly illegal action increases the resources the group must devote to programs independent of its suit challenging the action. See Havens, 455 U.S. at 379, 102 S.Ct. at 1124.

Plaintiff organizations have alleged such injuries here. We first summarize, and then elaborate on, the organizations' allegations. Both MWPHA and FHC have charged that defendants' preferential advertising tended to steer black home buyers and renters away from the advertised complexes and thus impelled the organizations to devote resources to checking or neutralizing the ads' adverse impact. The organizations also claimed that the advertisements required them to devote more time, effort, and money to endeavors designed to educate not only black home buyers and renters, but the D.C. area real estate industry and the public that racial preference in housing is indeed illegal.

Relating the organizations' claim to standing in more detail, we begin with the statute. Section 804(c) of the Fair Housing Act prohibits any advertisement that "indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination." 42 U.S.C. Sec. 3604(c). Section 812(a) of the Act expressly provides a private right of action to enforce the rights created by Section 804. See id. Sec. 3612(a).

Plaintiffs complained that the "repeated and continued depiction of white models and the complete absence of black models" in defendants' advertisements "indicate a preference based on race" in violation of the statute. Colonial Complaint p 12, Joint Appendix (J.A.) at 12; Gerstin Complaint p 7, J.A. at 22. Plaintiffs crucially alleged that these advertising practices ...