Equal Rights Ctr. v. Post Properties Inc.

Citation633 F.3d 1136
Decision Date08 March 2011
Docket NumberNo. 09–5359.,09–5359.
PartiesEQUAL RIGHTS CENTER, Appellantv.POST PROPERTIES, INC. et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

633 F.3d 1136
394 U.S.App.D.C.

POST PROPERTIES, INC. et al., Appellees.

No. 09–5359.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 2010.Decided March 8, 2011.

[633 F.3d 1136]

Appeal from the United States District Court for the District of Columbia (No. 1:06–cv–01991).John P. Relman argued the cause for the appellant. Stephen M. Dane, Douglas W. Baruch and Katherine A. Raimondo were on brief.Samuel R. Bagenstos, Principal Deputy Assistant Attorney General, United States Department of Justice, and Dennis J. Dimsey and Lisa J. Stark, Attorneys, United States Department of Justice, were on

[633 F.3d 1137]

brief for amicus curiae United States of America in support of the appellant.Virginia A. Seitz and C. Frederick Beckner III were on brief for amici curiae AARP et al. in support of the appellant.Lynn E. Calkins argued the cause for the appellees. Christopher B. Hanback and Rafe Petersen were on brief.Felicia K. Watson was on brief for amicus curiae National Association of Home Builders in support of the appellees.Before: GINSBURG, HENDERSON and ROGERS, Circuit Judges.Opinion for the Court filed by Circuit Judge HENDERSON.Concurring opinion filed by Circuit Judge ROGERS.KAREN LeCRAFT HENDERSON, Circuit Judge:

In November 2006, the Equal Rights Center (ERC), an organization interested in, among other things, fair housing, sued Post Properties, Inc. (Post), alleging that Post “designed, constructed, and operated its [apartment] complexes in a manner making them inaccessible to persons with disabilities in violation of the Fair Housing Act” (FHA), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601–3631, and Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181–12189. Equal Rights Ctr. v. Post Props., Inc., 657 F.Supp.2d 197, 198 (D.D.C.2009) (citing Compl. ¶ 2). The ERC appeals from the district court's grant of summary judgment to Post 1 on the ground that it lacked standing to bring its suit because it failed to demonstrate an injury in fact. We agree that the ERC failed to demonstrate that its injury was actual or imminent at the time it filed suit; at the same time, however, we disagree with the district court's formulation of the showing an organizational plaintiff must make to establish an injury in fact. Accordingly, we affirm the district court's judgment while setting forth the correct formulation by which to assess an organizational plaintiff's standing vel non.


To promote fair housing, the ERC provides counseling and education services to individuals seeking housing. In addition it sponsors education and training seminars for individuals involved in the real estate industry, including developers, and for fair housing organizations. Post has constructed and manages nearly sixty apartment communities with over 20,000 apartment units located in five states and the District of Columbia. In 2004 and 2005, after receiving complaints from national and local disability groups about the construction and accessibility of new multi-family housing units, the ERC began an investigation of several builders, including Post. The ERC claimed its investigation of Post “required the engagement of testers to inspect 27 Post developments across the country” and that “the ERC had to increase its own staff expertise in the accessibility requirements [of the FHA and the ADA], and provide[ ] both a basic and a specialized training to testers who were to take part in the investigation.” Appellant's Br. 15; see also Compl. ¶¶ 17–26. In November 2006, the ERC filed a two-count complaint against Post seeking “to enjoin and remedy ongoing and systematic violations of” the FHA as well as the ADA. Compl. ¶ 2. The ERC alleged Post's statutory violations “directly and substantially injured” the ERC by “frustrat[ing] ... its

[633 F.3d 1138]

mission to eradicate discrimination in housing, and in carrying out the programs and services that it provides” and by “forc[ing] the ERC to divert significant and scarce resources to identify, investigate, and counteract Post's” alleged discriminatory practices. Compl. ¶¶ 43–44. In January 2007, Post moved to dismiss and for partial summary judgment arguing, inter alia, that the ERC lacked standing. The district court denied both motions in June 2007 and discovery ensued. In December 2008, Post moved for summary judgment, again arguing, inter alia, that the ERC lacked standing. The district court concluded that, because the ERC's alleged injury stemmed from its own decision to investigate and litigate against Post, its injury did not confer standing. Equal Rights Ctr., 657 F.Supp.2d at 199–201. Accordingly, the court granted Post's motion for summary judgment. Id. The ERC timely appealed.


We review standing de novo. Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C.Cir.2009). A plaintiff's standing to sue under a statute ordinarily includes both constitutional and prudential components. No prudential standing inquiry is necessary for the ERC's FHA claim, however, “because Congress intended standing under the Fair Housing Act to extend to the full limits of Article III.” Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)), cert. denied, 498 U.S. 980, 111 S.Ct. 508, 509, 112 L.Ed.2d 521 (1990). “We therefore consider only core Article III standing.” Id. An organization like the ERC can assert standing on its own behalf, on behalf of its members or both. Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C.Cir.2006). The ERC asserted organizational standing only, which requires it, like an individual plaintiff, to 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.” Spann, 899 F.2d at 27. To accomplish this, the ERC must point to a “concrete and demonstrable injury to [its] activities”; a mere “setback” to its “abstract social interests” is not sufficient. Id. (alteration in original) (internal quotation marks omitted). An organization's expenditure of resources on a lawsuit does not constitute an injury in fact sufficient to establish standing. Id. Otherwise, the very act of bringing a case would confer standing “and Article III would present no real limitation.” Id. The United States Supreme Court has made clear, however, that if the defendant's allegedly wrongful action prompts an organization to “increase[ ] the resources [it] must devote to programs independent of its suit” against the defendant, the organization has shown an injury in fact. Id. (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114). In Havens, an organization promoting equal housing alleged that the defendant real estate company's discriminatory practice of “steering” away black renters “had frustrated the organization's counseling and referral services, with a consequent drain on resources,” 455 U.S. at 369, 102 S.Ct. 1114, because it forced the organization “to devote significant resources to identify and counteract the ... racially discriminatory steering practices.” Id. at 379, 102 S.Ct. 1114 (internal quotation marks omitted). The Supreme Court concluded that the organization's allegations, if proven, constituted a sufficient injury in fact based on the defendant company's having “perceptibly impaired” the organization's ability to provide counseling and referral services. Accordingly, the Court affirmed the Fourth Circuit's reversal of the district

[633 F.3d 1139]

court's dismissal for lack of standing. Id. at 378–79, 102 S.Ct. 1114.

Addressing the issue ourselves in Spann, we held that two organizations promoting fair housing had standing to sue a real estate company, its wholly-owned subsidiary and an advertising agency for running allegedly discriminatory advertisements. 899 F.2d at 25–31. The plaintiff organizations claimed the advertisements required them to expend additional resources to educate the “real estate industry and the public that racial preference in housing is indeed illegal.” Id. at 27. They alleged the advertisements interfered with their “efforts and programs intended to bring about equality of opportunity for minorities and others in housing” and required them “to devote scarce resources to identify and counteract [the] defendants' advertising.” Id. at 28 (internal quotation marks omitted). They further alleged that the defendants' advertising reinforced stereotypes of segregated housing and decreased the effectiveness of their efforts to educate the real estate industry and the public about anti-discrimination laws, which in turn required the plaintiff organizations to increase their educational efforts “to counteract the influence of [the] defendants' discriminatory ads.” Id. (internal quotation marks omitted). The plaintiff organizations further claimed the challenged advertising adversely affected their “real estate testing program” because it discouraged black buyers and renters from seeking housing through the defendant companies and required the plaintiff organizations “to broaden the scope of [their] efforts in order to reach all forms of discriminatory housing practices.” Id. (alteration in original) (internal quotation marks omitted). We agreed that “increased education and counseling could plausibly be required ... to identify and inform minorities, steered away from [the] defendants' complexes by the challenged ads, that [the] defendants' housing is by law open to all.” Id. at 28–29.

More recently, we concluded that an organization promoting equal employment had standing to sue an employment agency for racial discrimination in hiring because the alleged discrimination “might increase the number of people in need of counseling” and “may have reduced the effectiveness of any given level of [the...

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