Pierce v. Winograd

• Decision Date: 15 April 1985
• Docket Number: No. 83-2640,83-2640
• Citation: 757 F.2d 714
• Parties: Samuel R. PIERCE, Jr., Secretary of the United States Department of Housing and Urban Development, Plaintiff-Appellee, v. Dr. Eugene WINOGRAD, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 714

757 F.2d 714

Samuel R. PIERCE, Jr., Secretary of the United States Department of Housing and Urban Development Plaintiff-Appellee, v. Dr. Eugene WINOGRAD, et al., Defendants-Appellants.

No. 83-2640.

United States Court of Appeals Fifth Circuit.

April 15, 1985.

Kirklin, Boudreaux & Joseph, Glen M. Boudreaux, Tim S. Leonard, Bruce K. Watkins, Houston, Tex., for defendants-appellants.

Daniel K. Hedges, U.S. Atty., R.W. Rodrigues, C.J. (Neil) Calnan, James R. Gough, Linda M. Cipriani, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

On Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, WISDOM, and HIGGINBOTHAM, Circuit Judges.

CLARK, Chief Judge:

Eugene Winograd challenges the district court's enforcement of subpoenas issued by the Department of Housing and Urban Development (HUD). Winograd contends that HUD lacked authority to issue the subpoenas. He argues that the existence of a local fair housing ordinance substantially equivalent to the federal Fair Housing Act required HUD to delay its investigation until the local fair housing agency had an opportunity to conduct its own investigation. The district court rejected Winograd's premise of substantial equivalency. We affirm.

I

Appellants (collectively referred to as "Winograd") own and operate an apartment complex in Houston, Texas. Janice Clay and Regina Cooper sought to rent apartments within the complex. After being denied apartments, each filed housing discrimination complaints with the Houston Fair Housing Division. They also filed complaints with HUD.

During its investigation of the complaints, HUD issued subpoenas ordering Winograd to testify and produce records. He refused. HUD then petitioned the district court to enforce the subpoenas. The district court granted HUD's petition, and Winograd appealed.

The district court stayed its order pending Winograd's appeal. A Fifth Circuit panel vacated the district court's stay order in response to a motion by HUD. The district court scheduled a show cause hearing for contempt. The Fifth Circuit panel denied Winograd's second request for a stay. Winograd then appeared in response to the subpoenas, testified, and produced the requested records.

II

HUD maintains that Winograd's appeal should be dismissed as moot because Winograd has already complied with the subpoenas HUD sought to enforce. Winograd contends that the appeal is not moot. Winograd argues that he has standing and an interest in the outcome of the appeal because he owns a substantial number of apartments and is subject to future action by HUD. He also argues that the issue of HUD's authority to issue the subpoenas is capable of repetition but evading review because he will be unable to obtain appellate review before being compelled to comply.

Although a case may appear to be technically mooted, a continuing controversy exists if the problem is likely to recur yet evade review. Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1984); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). For a case to fall within this category, two requirements must be met: (1) the duration of the challenged action must be too short to allow full litigation; and (2) a reasonable expectation must exist that the same party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam); Sosna v. Iowa, 419 U.S. 393, 400-02, 95 S.Ct. 553, 558-59, 42 L.Ed.2d 532 (1975).

HUD denies that Winograd can reasonably expect to be subjected to the same action in the future. Before HUD can initiate an investigation, it must receive a housing discrimination complaint from a third party. See 42 U.S.C. Sec. 3610(a). Even if a third party filed a complaint, HUD might decide not to resolve it or might conduct an investigation without issuing a subpoena to Winograd. If Winograd cooperated with the investigation, no subpoena would be necessary. Finally, even if HUD issued a subpoena, Winograd would have to decide not to comply before he would be subjected to another enforcement proceeding. HUD contends that this chain of events is too tenuous to satisfy a requirement of reasonable expectation, and that Winograd's assertion that the present controversy is capable of repetition is merely speculative. Cf. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183-84, 71 L.Ed.2d 353 (1975) (per curiam) ("mere physical or theoretical possibility" insufficient).

HUD also argues that its authority to issue subpoenas need not evade review because Winograd can test HUD's authority by refusing to comply with the district court's enforcement order. Winograd contends that he should not have to risk contempt to support his position. HUD's argument derives support from United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). In Ryan, the United States Supreme Court held that the recipient of a subpoena "must either obey its command or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey." Id. at 532, 91 S.Ct. at 1581-82. A good faith test of the court's order through contempt would have implied no disrespect toward the court. Rather, such a test of the court's order is consistent with the highest standards of the legal profession. See Model Code of Professional Responsibility EC 7-22 (1979).

Winograd's compliance with the HUD subpoenas raises a substantial jurisdictional question. We decline the opportunity to resolve it. Instead, we pretermit the mootness issue because we conclude that Winograd's appeal lacks substantive merit. Cf. Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 296 (5th Cir.1963) (pretermitting jurisdictional question). From a standpoint of purely logical application of basic legal principles, Judge Higginbotham's dissent on this point is well considered. Our deliberate choice, however, is to dispose finally of the appeal on its merits and pretermit a difficult jurisdictional issue which, if resolved as Judge Higginbotham suggests, would leave the clearly meritless basic issue undecided. This prerogative is authorized by 28 U.S.C. Sec. 2106. Under its authority, we may enter orders that will best accommodate the interests of justice.

III

Section 810(c) of the Fair Housing Act, 42 U.S.C. Sec. 3610(c), prohibits HUD from investigating a housing discrimination complaint if a local fair housing law provides substantially equivalent rights and remedies. The district court held that HUD was not prohibited from investigating the complaints filed by Janice Clay and Regina Cooper because the rights and remedies provided by Houston's Fair Housing Ordinance, Houston, Tex., Code Secs. 15 1/2-11 to -23 (1975), were not substantially equivalent to those provided by the Fair Housing Act, 42 U.S.C. Secs. 3601-3631.

Winograd contends that the rights and remedies provided by the two laws are substantially equivalent. He maintains that the district court erred by deferring to HUD's determination that substantial equivalency was lacking. He argues that the court must make an independent determination of substantial equivalency.

We need not decide whether the district court could properly rely on HUD's determination that substantial equivalency was lacking because we conclude that the court also made an independent determination. The court did state in its enforcement order that it was deferring to HUD's interpretation of the Fair Housing Act. As the order makes clear, however, that deference was based on the court's independent examination of the two laws, and its conclusion that the remedies provided by the local ordinance and the federal statute revealed several significant differences.

The district court's holding on the issue of substantial equivalency is factually and legally correct. Comparison of the two laws demonstrates that the exemptions and exclusions in the local ordinance are broader than those in the federal statute. Compare Houston Code Sec. 15 1/2-15(A), (D) with 42 U.S.C. Secs. 3603(b), 3607. The local ordinance allows injunctive relief and fines; the federal statute allows actual and punitive damages, in addition to injunctive relief. See Houston Code Sec. 15 1/2-23; 42 U.S.C. Sec. 3612(c). The local ordinance requires the complaining party to file a complaint within 60 days of an alleged violation; the federal statute provides 180 days within which to file a complaint. See Houston Code Sec. 15 1/2-17(D); 42 U.S.C. Sec. 3610(b).

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