Petition — Havens Realty Corp. v. Coleman

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FILED

80-988 JEC 16 1980

No.

MICHA

BODAK, JR CLERK

In The ”

Supreme Court of the United States

October Term, 1980

HAVENS REALTY CORPORATION and

ROSE JONES,

Petitioners,

vs.

SYLVIA COLEMAN, R. KENT WILLIS and

HOUSING OPPORTUNITIES MADE EQUAL,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVERETTE G. ALLEN, JR.

Post Office Box 12085

Four North Fourth Street

Richmond, Virginia 23241

804/771-9564

Counsel for Petitioner

Of Counsel:

JAMES F. PASCAL

LINDA L. ROYSTER

HIRSCHLER, FLEISCHER,

WEINBERG, Cox & ALLEN

Four North Fourth Street

Richmond, Virginia 23219

QUESTIONS PRESENTED

1. Whether Article III of the United States Constitution

confers standing under the Fair Housing Act on a “tester” or

on any other surrogate for persons directly injured by

alleged discrimination, absent any allegation of injury to the

tester or surrogate, which is the question this Court expressly

left unanswered in Gladstone, Realtors v. Village of Bell-

wood, 441 U.S. 91 (1979).

2. Whether Article III of the United States Constitution

confers standing under the Fair Housing Act on a person

who alleges that a defendant has deprived him of the benefits

of interracial association but who fails to allege any facts

supporting a logical nexus between the defendant’s acts and

that deprivation.

3. Whether Article III of the United States Constitution

confers standing under the Fair Housing Act on an organi-

zational plaintiff basec solely on its general interest in equal

housing opportunity and its efforts to achieve equal housing

opportunity.

4. Whether a series of discrete acts constitutes a con-

tinuing violation which tolls the 180 day statute of limita-

tion under the Fair Housing Act.

PARTIES IN THE COURT OF APPEALS

Paul Allen Coles, a plaintiff in the District Court, was

listed in the caption of the Court of Appeals as plaintiff,

but not as appellant. There were no issues with respect to

him in the Court of Appeals and he has no interest in the

outcome of this petition. All other parties are named in the

caption of the case in this Court.

CONTENTS

Page

QUESTIONS PRESENTED ................0.cccesveees i

TABLE OF CONTENTS .............0.c0ccccceuseuees ii

TABLE OF AUTHORITIES .... 0.0.0... 0 0c ccc cece ues iii

re 2

ss neces nec bc ceebaccesoerecseccen 2

THE STATUTES INVOLVED ....................00005 2

STATEMENT OF THE CASE .................0.000005. 5

REASONS FOR GRANTING THE WRIT ............... 11

The Decision of the Court of Appeals That Tester Status Alone

Confers Standing Under the Fair Housing Act Involves an

Important Question of Federal Constitutional Law ixpressly

Left Unanswered in Gladstone, Realtors v. Village of Bell-

DCP CCGeeataS Ge 6S cetCCeceercbsctseesuneveses 11

The Decision of the Court of Appeals With Respect to Standing

of Persons Who Allege That They Have Been Deprived of

the Benefits of Interracial Association Raises Important

Questions Concerning This Court's Decisions in Trafficante

v. Metropolitan Life Insurance Co. and Gladstone, Realtors

v. Village of Bellwood ... 06.6660 ces 14

The Decisions of the Fourth and Seventh Circuits Conflict Con-

cerning an Organizational Plaintiff's Standing Under the Fair

EEE SANs cu eiseteosceccccccnceccovenseseess 17

The Decisions of the Third and Fourth Circuits Conflict Con-

cerning Whether the Limitation Period Under Section 812 of

the Fair Housing Act Applies When a Plaintiff Alleges Sev-

eral Discrete Acts of Discrimination .................. 20

GRAMEEN ccc ccecbccbacbocdcevcceveessceenedses 22

CERTIFICATE OF SERVICE 2. ccc ccscccsscccccccsscece 23

APPENDIX—TABLE OF CONTENTS ...........5-00005 A

TABLE OF AUTHORITIES

Cases

Page

Beare V. Dp, 58 UB. BER CITE) csccccvccscccscenses 12

Fair Housing Council of Bergen County, Inc. v. Eastern Bergen

County Multiple Listing Service, Inc., 422 F.Supp. 107)

Css PUTER scawlivcaeeehnuess ereetenveceaeeeess 16, 18

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91

COPUPE sc cbressncerectaade nsnetabeaneunes i, 11, 13, 14, 15

Heights Community Congress Vv. Rosenblatt Realty, Inc., 73

eee E Caee SH GTEE 5000060 e5n6eeees Kobe bebe 18

Hunt v. Washington Apple Advertising Commission, 432

et APPR sca nasduwegdevivesaceilerentee ewes’ 9,19

Meyers v. Pennypack Woods Home Ownership Association,

-- fe £ fs Co Sy) GA PePePeEreeerrer er Tree 21

Piaaed ¥. Pat, FOS UE. Der GEMGTD seve cvccncésacceecins 12

Sherman Park Community Association v. Wauwatosa Realty

Co., 486 F.Supp. 838 (E.D. Wis. 1980) ..........6605 13, 16

Sierra Club v. Morton, 405 U.S, 727 (1972) .........5. 9, 10, 18

Simon v. Eastern Kentucky Welfare Rights Organization, 426

EE ee EOD 6 bce ve vcaveeUewepecbensevesdnse 6s 6s 13

Stingley v. City of Lincoln Park, 429 F.Supp. 1379 (E.D.

BR ROTTED Scksccdcodccedsinpwesetekedercssoctaes 21, 22

Trafficante Vv. Metropolitan Life Insurance Co., 409 U.S.

BE CUED 4 5 cbb cb bs Hoke reesei VesaceeVeeseseTeern 14

United States v. Students Challenging Regulatory Agency

POG: ES Gs Ge CEPTED cc ccevescrvocvecesseccs 16

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) .....0ecceeeees 9

Village of Bellwood v. Dwayne Realty, 482 F.Supp. 1321

SE EE FEC CIUCG vs pcais bees bab 6s 68s Ou 13,19

Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013

(7th Cir, 1978), aff'd on other grounds, Gladstone, Realtors

v. Village of Bellwood, 441 U.S. 91 (1979) ......... 13,17, 18

Warth v. Seldin, 422 U.S. 490 (1975) ........4.. 9, 10, 13, 14, 16

Constitutional Provisions

Ce CE, CUR TE otc hreiccavervesscctvecdccesceeses passim

Statutes

Ss ED bcs sce csehobebbaseckeucotencsees ts 2

pL 8 > a Arar Ae fori irae mnare i 5

SERGE EENE VeccedhssceeL bkebvaveesesesbebséee ene 5

RG EE Sead e oc ac outa cbse bee bee es veews 5

PUN ED cdcbcceusreviecestesscsecteotusekaure 5

The Civil Rights Act of 1866 (42 U.S.C, § 1982) ..... eat 5

Title VII of the Civil Rights Act of 1968 (42 U.S.C.

Se ED cca hess cad ve phe bs eee Ge kb hae bene hs 20

Title VIII of the Civil Rights Act of 1968 (The Fair Housing

ee ee Oe Oe OE MD bie bevcdiunesetaccsein 5 33

MEE Rakes bos 6b subs keeeedaveaabenacens 3

PE Cixcacsnckera dene ek Weekeeeenes 3, 5, 20

RE NE 665064 cko sen bess 6 dsa sen ee bese eas 20

In The

Supreme Court of the United States

October Term, 1980

No.

HAVENS REALTY CORPORATION and

ROSE JONES,

Petitioners,

VS.

SYLVIA COLEMAN, R. KENT WILLIS and

HOUSING OPPORTUNITIES MADE EQUAL,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the United States District Court for the

Eastern District of Virginia was not reported. The opinion

of the Fourth Circuit Court of Appeals has not yet been

reported. Both opinions are contained in the Appendix to

this petition.

JURISDICTION

The Fourth Circuit Court of Appeals entered judgment

on September 18, 1980. This petition for certiorari was

filed within 90 days of that date.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

THE STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED!

United States Constitution, Article III, Section 2, Clause

Section 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which

shall be made, under their Authority; —to all Cases af-

fecting Ambassadors, other public Ministers and Con-

suls; —to all Cases of admiralty and maritime Juris-

diction; —to Controversies to which the United States

shall be a Party; —to Controversies between two or

more States; —between a State and Citizens of another

State; —between Citizens of different States, —be-

tween Citizens of the same State claiming Lands under

Grants of different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or Sub-

jects.

* Complete texts of additional authorities cited in this petition are

set forth in the Appendix.

42 U.S.C. § 3604:

§ 3604. Discrimination in the sale or rental of housing

As made applicable by section 3603 of this title and

except as exempted by sections 3603(b) and 3607 of

this title, it shall be unlawful—

(a) To refuse to sell or rent after the making of a

bona fide offer, or to refuse to negotiate for the sale or

rental of, or otherwise make unavailable or deny, a

dwelling to any person because of race, color, religion,

sex, or national origin.

(b) To discriminate against any person in the terms,

conditions, or privileges of sale or rental of a dwelling,

or in the provision of services or facilities in connection

therewith, because of race, color, religion, sex, or na-

tional origin.

printed, or published any notice, statement, or adver-

tisement, with respect to the sale or rental of a dwelling

that indicates any preference, limitation, or discrimina-

tion based on race, color, religion, sex, or national ori-

gin, or an intention to make any such preference, limi-

tation, or discrimination.

(d) To represent to any person because of race,

color, religion, sex, or national origin that any dwelling

is not available for inspection, sale, or rental when such

dwelling is in fact so available.

(e) For profit, to induce or attempt to induce any

person to sell or rent any dwelling by representations

regarding the entry or prospective entry into the neigh-

borhood of a person or persons of a particular race,

color, religion, sex, or national origin.

42 U.S.C. § 3612:

§ 3612. Enforcement by private persons

(a) Civil action; Federal and State jurisdiction;

complaint; limitations; continuance pending

conciliation efforts; prior bona fide transactions

unaffected by court orders

The rights granted by sections 3603, 3604, 3605,

and 3606 of this title may be enforced by civil actions

in appropriate United States district courts without re-

gard to the amount in controversy and in appropriate

State or local courts of general jurisdiction. A civil ac-

tion shall be commenced within one hundred and eighty

days after the alleged discriminatory housing practice

occurred: Provided, however, That the court shall con-

tinue such civil case brought pursuant to this section or

section 3610(c) of this title from time to time before

bringing it to trial if the court believes that the con-

ciliation efforts of the Secretary of a State or local

agency are likely to result in satisfactory settlement of

the discriminatory housing practice complained of in

the complaint made to the Secretary or to the local or

State agency and which practice forms the basis for

the action in court: And provided, however, That any

sale, encumbrance, or rental consummated prior to the

issuance of any court order issued under the authority

of this Act, and involving a bona fide purchaser, en-

cumbrancer, or tenant without actual notice of the

existence of the filing of a complaint or civil action

under the provisions of this Act shall not be affected.

(b) Appointment of counsel and commencement of

civil actions in Federal or State courts without

payment of fees, costs, or security

Upon application by the plaintiff and in such circum-

stances as the court may deem just, a court of the

United States in which a civil action under this section

has been brought may appoint an attorney for the

plaintiff and may authorize the commencement of a

civil action upon proper showing without the payment

of fees, costs, or security. A court of a State or sub-

division thereof may do likewise to the extent not in-

consistent with the law or procedures of the State or

subdivision,

costs; attorney fees

The court may grant as relief, as it deems appropri-

ate, any permanent or temporary injunction, temporary

restraining order, or other order, and may award to

the plaintiff actual damages and not more than $1,000

punitive damages, together with court costs and rea-

sonable attorney fees in the case of a prevailing plain-

itff: Provided, That the said plaintiff in the opinion of

the court is not financially able to assume said attor-

ney’s fees.

STATEMENT OF THE CASE

This case arose from the alleged practices of Havens

Realty Corporation (Havens) and one of its employees,

Rose Jones (Jones), in Henrico County, Virginia, a suburb

of Richmond, Virginia. Havens is a Virginia corporation

with its principal place of business at two apartment com-

plexes, Camelot Townhouse Apartments (Camelot) and

Colonial Court Apartments (Colonial Court), which are

located directly across the street from each other. They

are owned and managed by Havens.

On January 9, 1979, Paul Allen Coles (Coles), Sylvia

Coleman (Coleman), R. Kent Willis (Willis), and Housing

Opportunities Made Equal (HOME) filed an action in the

United States District Court for the Eastern District of

Virginia, Richmond Division, alleging that the defendants

had engaged in the practice of racial steering of prospective

apartment renters, in violation of the Civil Rights Act of

1866, 42 U.S.C. § 1982, and the Fair Housing Act of 1968,

42 U.S.C. §$§ 3601 et seq. (the Fair Housing Act). The

district court’s jurisdiction was based on 42 U.S.C.

§ 3612(a) and 28 U.S.C. §§ 1331, 1337, 1343(4) and

2201. The complaint sought declaratory and injunctive

relief, compensatory and punitive damages, and costs and

attorneys’ fees. The individual plaintiffs purported to repre-

sent a class composed of all persons who have rented or

sought to rent property in Henrico County, Virginia, and

who have been or continue to be, adversely affected by the

acts, policies, and practices of Havens and Jones.

The complaint, which is included in the Appendix ( App.

27), characterizes Coles, a black man, as a “renter plaintiff.”

The expression “renter plaintiff’ means that Coles sought

housing information from Havens and was ready, willing,

and able to sign an apartment lease with Havens. This con-

cept of “renter plaintiff” contrasts with the characterization

of the other two individual plaintiffs, Coleman and Willis,

as “tester plaintiffs.” Coleman, a black woman, and Willis,

a white man, were not actually seeking housing information

for their own purposes, nor were they ready, willing and

able to execute a lease. Instead, as the complaint alleges,

they “consulted [Havens and Jones] with regard to avail-

able rentals in the course of their employment with Housing

Opportunities Made Equal to determine whether or not

[Havens and Jones] have practiced racial steering in the

rental housing market” (App. 29).

The organizational plaintiff, HOME, is a Virginia non-

profit corporation, with its principal place of business in

Richmond, Virginia. HOME’s purpose, the complaint states,

is “to make equal opportunity in housing a reality in the

Richmond Metropolitan Area” (App. 29). The complaint

alleges that HOME has a multi-racial membership of ap-

proximately 600 people, but it fails to allege where any of

its members reside or any additional facts concerning

HOME’s membership. HOME’s goal are alleged to include

the elimination of unlawful racially discriminatory housing

practices that cause injury to its members, to all persons who

seek apartment units in the Richmond Metropolitan Area

and to all persons who reside in the Richmond Metropolitan

Area (App. 29). It is alleged that HOME seeks to assure

all such persons the right to the important social, profes-

sional, business, economic and political benefits of inter-

racial associations that arise from living in integrated com-

munities (App. 29-30). Finally, the complaint states that

HOME ’s activities include: (1) seeking to assist and aid

individuals of all races in obtaining housing in the Rich-

mond Metropolitan Area through the operation of a hous-

ing counseling service, (2) investigation of allegations of

discrimination and the referral of complaints to appropriate

state and federal agencies, and (3) independent investiga-

tions of real estate brokers located in the Richmond Metro-

politan Area (App. 30).

The complaint makes both general and specific alle-

gations against the defendants. The complaint alleges gen-

erally that the defendants treat differently white and non-

white prospective lessees on the basis of race by consistently

showing white customers rental units in buildings occupied

primarily by white tenants, by failing to show such units to

black customers, and by showing black customers units in

buildings occupied primarily by black tenants. More spe-

cifically, the complaint identifies five distinct instances of

alleged steering by the defendants. The only instance in-

volving the renter plaintiff, Coles, occurred on July 13,

1978, or 180 days prior to the filing of the complaint. All

other instances involved either non-party testers or the

tester plaintiffs, Coleman and Willis, and all of these oc-

curred more than 180 days prior to the filing of the com-

plaint.

On January 31, 1979, the defendants filed a motion to

dismiss stating, among other things, that (1) all claims

asserted under the Fair Housing Act were time barred and

should be dismissed, except the claim arising on July 13,

1978, and that (2) HOME, Coleman, and Willis lacked

standing to assert claims under the Fair Housing Act of

1968 and the Civil Rights Act of 1866. On February 16,

1979, the district court sustained the defendants’ motion to

dismiss on both grounds (App. 21). A timely notice of

appeal was filed by HOME, Coleman and Willis.

On September 18, 1980, the Fourt Circuit reversed the

decision of the district court. The Court of Appeals held

that Coleman’s and Willis’ mere status as testers was suf-

ficient to confer standing under the Fair Housing Act. The

Court of Appeals further held, in the alternative, that Cole-

man and Willis had standing in their individual capacity

(as opposed to their capacity as testers) because they had

alleged specific injury by averring that the defendants’ con-

duct had deprived them of the right to “important social,

professional, business and economic, political and aes-

thetic benefits of interracial association that arise from living

in integrated communities free from discriminatory housing

practices... .” (App. 33). The Fourth Circuit found that

this allegation alone was sufficient to confer standing, even

though the court acknowledged, “[t]he complaint in the

instant case does not specifically allege that the discrimina-

tion practiced [by Havens] affect [sic] the area where the

testers reside” (App. 17). In so holding, the Court of Ap-

peals expressly declined to formulate any general rule cir-

cumscribing standing for tester plaintiffs (App. 10).

In practical effect, the Fourth Circuit’s holding concerning

the standing of Coleman and Willis gives standing to them

both in their status as individual residents of the entire

Richmond Metropolitan Area (an area undefined in the

complaint) and in their status as testers, regardless of

whether or not they are residents of the Richmond Metro-

politan Area.

With regard to the standing of HOME, the Court of

Appeals held that, insofar as its members had been deprived

of the same “community advantages” denied to Coleman

and Willis by the actions of the defendants, HOME has

representational standing to litigate these claims on behalf

of its members, relying upon the requirements for repre-

sentational standing set forth in Hunt v. Washington Apple

Advertising Commission, 432 U.S. 333 (1977) and Warth

v. Seldin, 422 U.S. 490 (1975) (App. 14). The question

of representational standing was neither briefed nor argued

by HOME in the Fourth Circuit.

The Fourth Circuit also held that the complaint alleged

sufficie st injury to HOME as an entity to confer standing

on it in its own right, in addition to its standing as the

representative of its members. Here, the Fourth Circuit

held that HOME had standing because it had been frus-

trated in its efforts to assist equal access to housing through

its counseling and referral services, and because it had

devoted significant resources to identifying and counteract-

ing the defendants’ discriminatory steering practices (App.

15). The Court of Appeals held that HOME'’s interest was

more than the protestations of general interest found to be

insufficient for standing in Sierra Club v. Morton, 405 U.S.

727 (1972) and Warth v. Seldin, supra, although less than

the injury suffered by the non-profit developer in Village

of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S, 252 (1977). In so doing, the Fourth Cir-

cuit stated that HOME'’s goals were “functional,” and that

its “projects” provided “ ‘the essential dimension of spec-

ificity’ that informs judicial decision making,” as described

in Arlington Heights (App. 15-16). However, the Fourth

Circuit failed to offer any reasons to justify its conclusion

that HOME had more than the generalized interest that was

insufficient to confer standing in Sierra Club v. Morton and

Warth v. Seldin.

With regard to the statute of limitations, the Fourth Cir-

cuit held that the plaintiffs could base their Fair Housing

Act claims upon acts occurring outside the applicable 180

day \imitation period because the complaint alleged that the

ections of the defendants constituted a continuing violation,

Thus, the Court of Appeals held that the 180 day limitation

period commenced to run with the last act alleged in the

complaint and if that act occurred within the limitation

period, which it did, none of the other alleged acts are time

barred, The Court of Appeals based this conclusion on the

general proposition that the primary focus of the statute is

not on isolated instances of discrimination, but rather on

the generalized practice of housing discrimination.

REASONS FOR GRANTING THE WRIT

The Decision Of The Court Of Appeals That Tester

Status Alone Confers Standing Under The Fair Housing

Act Involves An Important Question Of Federal

Constitutional Law Expressly Left Unanswered in

Gladstone, Realtors v. Village of Bellwood,

The Fourth Circuit held that the individual plaintiffs,

Coleman and Willis, have standing to bring an action under

the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., solely in

in their capacity as “testers,” whica the Fourth Circuit de-

fined as persons who “contacted defendants concerning the

availability of rental apartments in the course of their em-

ployment with HOME to determine whether defendants

were practicing racial steering” (App. 4). In Gladstone,

Realtors v. Village of Bellwood, 441 U.S, 91 (1979), al-

though the plaintifis were testers, they did not assert stand-

ing as testers in this Court. Therefore, this Court did not

reach that question, /d, at 111, The Court of Appeals based

its holding on the important public policy goals which the

Fair Housing Act was designed to achieve (App. 8). While

admitting that the testers serve as nothing more than “sur-

rogates” for persons “illegally denied housing” by violations

of the Fair Housing Act (App. 10), the Court of Appeals

held that the testers had standing in the absence of any al-

legations concerning the nature, or even the existence of

their injury. Thus, what the Fourth Circuit has held is that

anyone who tests the compliance of another person with the

Fair Housing Act has standing to commence an action and

seck redress for the alleged violation, without regard to the

nature, cause, or even existence, of their injury, and with-

out pleading any facts supporting the nexus between tester

status, the acts of the defendant, and the injury. In effect, as

a result of the Fourth Circuit's decision, a pleading that

alleges that a plaintiff tested a defendant and that the de-

fendant failed the test is sufficient for a trial on the merits,

notwithstanding that the pleading failed to allege any facts

relating the unlawful acts to the injury. All that a tester must

plead is the conclusion that the unlawful act occurred. For

example, had Coleman and Willis resided in Chicago, IlIli-

nois, and tested the defendants in this case, they would have

had standing, according to the Fourth Circuit, and would

have been able to compel a trial on the merits. Stripped of

all rhetorical flourishes, a tester, according to the Fourth

Circuit, does not have to plead or prove any facts concern-

ing injury.

The Fourth Circuit seeks to justify its holding that tester

Status alone confers Article Ill standing by citing Pierson

v. Ray, 386 U.S. 547 (1967) and Evers v. Dwyer, 358

U.S. 202 (1958). In Pierson, black persons occupied the

“whites only” section of a bus station to “test” the validity

of a municipal ordinance requiring racial segregation. The

black plaintiffs in Evers “te ted” a similar ordinance by oc-

cupying the white section of a bus. This Court held in both

cases that simply because the plaintiffs violated the ordi-

nances in order to test their constitutionality does not deprive

the plaintiffs of standing. The so-called “testers” in Evers

and Pierson each suffered specific injury by being unlaw-

fully deprived because of their race of the right to occupy

certain public accommodations or conveyances. This Court

ruled that Article III is satisfied when specific injury such

as this is present, whether or not plaintiffs incurred the in-

jury solely for the purpose of instituting litigation. The

Fourth Circuit, however, inverted the analysis in Pierson

and Evers, and held that, so long as a plaintiff takes action

for the purpose of determining whether a law is being vio-

lated, standing is conferred, whether or not the plaintiff

suffered any distinct and palpable injury at the hands of

the defendant.

The approach of the Court of Appeals to this question is

unsupported by prior authority. The standing limitations

imposed by Article III of the United States Constitution

require that a plaintiff assert a distinct and palable injury

to himself, Warth v. Seldin, 422 U.S. 490, 501 (1975),

that is likely to be redressed by the requested relief. Simon

v. Eastern Kentucky Welfare Rights Organization, 426

U.S. 26, 38 (1976). In this case, plaintiffs did not allege

any injury to themselves as testers, and the Fourth Circuit

did not find any injury. These plaintiffs did not seek to

exercise any rights of their own, as did the plaintiffs in

Pierson and Evers, and do not allege injury to themselves

as a result of the denial of the rights of others. Clearly,

under familiar Article III principles, these plaintiffs do not

have standing in their capacity as testers.

Although the standing of testers has been placed in issue

in several cases, the question has been analyzed in those

cases on the basis of the injury they alleged as persons de-

prived of the benefits of interracial association. See, e.g.,

Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013

(7th Cir. 1978), aff'd on other grounds, Gladstone, Real-

tors V. Village of Bellwood, 441 U.S. 91 (1979); Sherman

Park Community Association vy. Wauwatosa Realty Co.,

486 F.Supp. 838 (E.D.Wis. 1980); Village of Bellwood v.

Dwayne Realty, 482 F.Supp. 1321 (N.D.II. 1979). Prior

to the decision of the Court of Appeals in the instant case,

a court has never suggested that a tester has standing to

vindicate the rights of others without regard to any personal

injury having been sustained by the tester.

The Fourth Circuit's decision is wholly inconsistent with

the case or controversy limitation of Article III and means

that any person who chooses to do so may bring an action

under the Fair Housing Act to vindicate the rights of others,

whether or not that person has any connection whatsoever

to the person allegedly discriminated against, or the com-

munity or neighborhood affected by the alleged discrimina-

tory housing practice. The extraordinary significance of the

Court of Appeals’ deviation from established law in the

area of constitutional standing limitations mandates cor-

rection by this Court.

The Decision Of The Court Of Appeals With Respect

To Standing Of Persons Who Allege That They Have

Been Deprived Of The Benefits Of Interracial

Association Raises Important Questions Concerning

This Court’s Decisions In Trafficante vy. Metropolitan

Life Insurance Co. and Gladstone, Realtors v.

Village Of Bellwood.

The Court of Appeals found that the individual plaintiffs

who allege that they have been deprived of the benefits of

interracial association have standing under the Fair Hous-

ing Act. In this decision, the Court of Appeals went far be-

yond this Court’s prior decisions concerning standing under

the Fair Housing Act in Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91 (1979), and Trafficante v. Metro-

politan Life Insurance Co., 409 U.S. 205 (1972). The de-

cision of the Court of Appeals effectively grants standing to

anyone residing in a major metropolitan area who includes

in his complaint the conclusory allegation that he is “de-

prived of the benefits of interracial association,” whether or

not there is a logical nexus between the defendants’ acts

and the deprivation. Thus, the decision of the Court of

Appeals effectively eliminates as well the constitutional re-

quirement that a plaintiff “must allege specific, concrete

facts demonstrating that the challenged practices harm

him, and that he personally would benefit in a tangible way

from the courts’ intervention.” Warth v. Seldin, 422 U.S.

490, 508 (1975) (emphasis in original).

The individual plaintiffs in this case allege only that they

are residents of the City of Richmond or the County of

Henrico,’ two contiguous political subdivisions with a popu-

lation of nearly 400,000 people (App. 16). They also claim

that defendants’ alleged practice in two adjacent apartment

complexes in Henrico County “contributes to maintaining

existing neighborhood segregation and inhibits the develop-

ment of stable racially integrated neighborhoods,” appar-

ently in the entire Richmond Metropolitan Area (App. 30-

31), which presumably includes at least the City of Rich-

mond, the County of Henrico and the County of Chester-

field, an area with a population of well over one-half million

people.’

By contrast, in Bellwood, four residents of an integrated

neighborhood allegedly “targeted” by defendant for racial

steering were found to have standing because the defend-

ant’s conduct allegedly jeopardized their right to live in an

integrated community. However, summary judgment was

affirmed against two non-residents of the target neighbor-

hood who alleged no facts to show how steering directed

towards the target neighborhood affected the areas where

they resided. Bellwood, 441 U.S. at 111 n. 25.

Also by contrast, in Trafficante, the plaintiffs were resi-

dents of the apartment complex that was the target of de-

fendants’ alleged discrimination. They had standing to chal-

lenge their landlord’s discriminatory rental policies because

those policies denied the plaintiffs the right to live in an

integrated community. Trafficante, 409 U.S. at 206. In

Trafficante it was reasonable to conclude from those facts

* Although the Court of Appeals apparently believed that Cole-

man and Willis are residents of Henrico County (App. 11), the

complaint merely alleges that the “individual plaintiffs. _.are all resi-

dents of the City of Richmond or Henrico County” (App. 29).

*The Richmond Standard Metropolitan Statistical Area is com-

sed of eight political subdivisions with a combined area of over

,000 square miles. Department of Commerce, Bureau of the Census,

County and City Data Book (1977).

that actual injury occurred to the plaintiffs and would be re-

dressed by cessation of the alleged discrimination because

the plaintiffs resided in the apartment complex where the

acts of discrimination occurred, Trafficante clearly did not

hold, as the Fourth Circuit has here, that racial discrimina-

tion practiced by a landlord of an apartment complex could

be challenged by all persons residing in an entire metro-

politan area.

It is “‘an ingenious academic exercise in the conceiv-

able’”, Warth v. Seldin, 422 U.S. at 509, quoting United

States Vv. S.C.R.A.P., 412 U.S. 669, 688 (1973), to con-

clude that everyone in the Richmond Metropolitan Area is

harmed by alleged discriminatory practices at two adjacent

apartment complexes in Henrico County or that the cessa-

tion of those practices will affect the racial composition of

neighborhoods throughout the entire Richmond Metropoli-

tan Area, and therefore affect every person residing in that

metropolitan area. This conclusion of the Court of Appeals

is clearly in conflict with this Court’s decisions under Article

III, which require the allegation of concrete and specific

facts upon which standing is based.

This Court should grant certiorari to provide guidance

to the lower courts on the scope of this Court’s decisions in

Bellwood and Trafficante. Guidance is particularly neces-

sary at this time because of the growing number of cases

addressing the standing of persons asserting the rights of

others under the Fair Housing Act,* as well as other statutes

in which prudential standing limitations have been elimi-

nated by Congress.

* See, e.g., Sherman Park Community Association v. Wauwatosa

Realty Co., 486 F.Supp. 838 (E.D. Wis. 1980); Fair Housing Coun-

cil of Bergen County, Inc. v. Eastern Bergen County Multiple Listing

Service, Inc., 422 F.Supp. 1071 (D.N.J. 1976).

The Decisions Of The Fourth And Seventh Circuits

Conflict Concerning An Organizational Plaintiff's

Standing Under The Fair Housing Act.

The Court of Appeals also found that HOME, an organi-

zation concerned with the elimination of racially discrimina-

tory housing practices in the Richmond Metropolitan Area,

has standing under the Fair Housing Act, both as a repre-

sentative of its members and on the basis of its own alleged

injury. HOME alleges injury to itself and its members in

the following language:

Plaintiff HOME has been frustrated by defendants’

racial steering practices in its efforts to assist equal

access to housing through counseling and other referral

services, Plaintiff HOME has had to devote sienificant

resources to identify and counteract the defendant's

[sic] racially discriminatory steering practices. HOME

members have, as a result of defendants’ practices, been

deprived of the right to the important social, profes-

sional, business and economic, political and aesthetic

benefits of interracial associations that arise from living

in integrated communities free from discriminatory

housing practices in violation of the Fair Housing Act

of 1968, 42 U.S.C. §3601, et seq.

(App. 33-34)

The Fourth Circuit’s decision that HOME has standing

based on these allegations is in direct conflict with the Court

of Appeals for the Seventh Circuit in Village of Bellwood v.

Gladstone Realtors, 569 F.2d 1013 (7th Cir. 1978), aff'd

on other grounds, Gladstone, Realtors v. Village of Bell-

wood, 441 U.S. 91 (1979).

One of the plaintiffs in Bellwood was the Leadership

Council for Metropolitan Open Communities. Like HOME,

the Leadership Council is a non-profit corporation devoted

to eliminating housing discrimination in a major metro-

politan area and, like HOME, it alleged that racial steering

hampers and interferes with its work and purpose and costs

it money to investigate and to attempt to eliminate such

practices. Jd. at 1015. The Seventh Circuit had no difficulty

in holding that the Leadership Council lacked standing:

[T]he Council’s interest in open housing matters and

its asserted commitment to effectuating that interest,

albeit commendable, do not substitute for the concrete

injury constitutionally required to invoke the jurisdic-

tion of the federal courts. The alleged dollar cost to the

Council of attacking defendants’ alleged practices is

simply “concomitant to [its] keen concern” about open

housing issues, and does not present independently

cognizable injury.

Id. at 1017 (citations omitted). The Seventh Circuit denied

standing under the Fair Housing Act on the ground that

an organizational plaintiff, like an individual plaintiff, must

assert more than a mere interest in a social problem and an

effort to further that interest. Sierra Club v. Morton, 405

U.S. 727 (1972). Thus, on nearly identical allegations of

injury, the Seventh Circuit denied standing to the Leader-

ship Council while the Fourth Circuit granted standing to

HOME.

Lower courts are also in conflict on this issue. In Heights

Community Congress v. Rosenblatt Realty, Inc., 73 F.R.D.

1 (N.D.Ohio 1975), the district court found that a similar

organization had standing based on allegations that the or-

ganization’s purpose is “the promotion and maintenance of

Cleveland Heights as an open and integrated community,”

id. at 2, and that “ ‘the conduct of the defendant directly

obstructs, frustrates and damages the congress in achieving

its objective by impeding the processes which are used to

benefit the entire community of Cleveland Heights.’ ” /d. at

4. By contrast, in Fair Housing Council of Bergen County,

Inc. V. Eastern Bergen County Multiple Listing Service,

Inc., 422 F.Supp. 1071 (D.N.J. 1976), the district court

held:

Insofar as the Fair Housing Council seeks standing

based on its special interest in eradicating discrimina-

tory housing practices in Bergen County and its ex-

penditure of monies towards that end, its complaint

must fail.

Id. at 1083. Accord, Village of Bellwood v. Dwayne Realty,

482 F.Supp. 1321 (N.D.II. 1979).

As these and other cases indicate, the standing of local

fair housing organizations is an important federal question

on which federal courts conflict. Since this issue will con-

tinue to arise with increasing frequency, a writ of certiorari

should issue to resolve this conflict and provide guidance to

the lower federal courts.

The Court of Appeals also found that HOME has stand-

ing as a representative of its members, although the point

was neither briefed nor argued by HOME. The Court of

Appeals recognized that in order for an organization to

have standing, its members must have standing in their own

right, Hunt v. Washington Apple Advertising Commission,

432 U.S. 333, 343 (1977); however, there is absolutely

nothing in the complaint which indicates that any HOME

member has standing, There is no connection whatsoever

between the defendants’ alleged practices and any HOME

member, The complaint does not even allege that the mem-

bers are residents of the Richmond Metropolitan Area,

much less Camelot or Colonial Court apartments or the

neighborhood surrounding them. Thus, the principles dis-

cussed earlier in this petition concerning standing of indi-

viduals who allege that they have been deprived of the bene-

fits of interracial association apply with even greater force

to the Court of Appeals’ decision that HOME has standing

as a representative of its members. A writ of certiorari

should issue to review this unwarranted disregard of the

requirements of Article III.

The Decisions Of The Third And Fourth Circuits Conflict

Concerning Whether The Limitation Period Under

Section 812 Of The Fair Housing Act Applies When A

Plaintiff Alleges Discrete Acts Of Discrimination.

The district court in this case held that the plaintiffs’

action under the Fair Housing Act was barred by the limi-

tation period of Section 812, 42 U.S.C. § 3612(a), insofar

as that action was based on acts of discrimination occurring

more than 180 days before the complaint was filed. The

Court of Appeals reversed, holding that the alleged acts of

the defendants amounted to a continuing violation and

that, therefore, the plaintiffs’ action could be based on

events occurring outside of the 180 day limitation period.

Although a continuing violation of Title VII of the Civil

Rights Act of 1968, 42 U.S.C. $$ 2000e et seq., has been

recognized as tolling the 180 day limitation period of that

title, that rationale has never been recognized by this Court

in Title VIII cases. In the context of Title VIII, the con-

tinuing violation theory is an unnecessary adjunct to the

stgtutory scheme of remedies. If a pattern or practice of

discrimination in violation of the Fair Housing Act is oc-

curring, the Attorney General is empowered to bring an

action for equitable relief under Section 813, 42 U.S.C.

§ 3613. The plaintiffs improperly attempt to assume the

role of the Attorney General in this action under Section

812, a section designed for the vindication of private rights

with respect to discrete violations.

Furthermore, the acts of discrimination allegedly com-

mitted by defendants are unitary acts, occurring at distinct

and identifiable points in time. Since each act involved

deliberate testing by the individual plaintiffs or other em-

ployees of HOME (App. 31-33), these acts were known to

the plaintiffs at the time they were committed and any cause

of action arose then. Having failed to act on any claims

which arose from these acts within the limitation period,

the plaintiffs are barred with respect to these acts. Even if

a continuing violation theory were appropriate under Title

VIII, the plaintiffs clearly have alleged several discrete acts,

not a continuing violation.

The question of what constitutes a continuing violation

under the Fair Housing Act has arisen in several cases. In

Meyers v. Pennypack Woods Home Ownership Association,

559 F.2d 894 (3d Cir. 1977), the Third Circuit did not

find a continuing violation in the repeated refusal of the

defendants to sell a home to the plaintiff. Jd. at 899. Addi-

tionally, that court appeared to question whether or not the

continuing violation rationale was appropriate under Title

VIII. /d. The decision of the Fourth Circuit in the instant

case is in conflict with the decision Third Circuit. Similarly,

in Stingley v. City of Lincoln Park, 429 F.Supp. 1379

(E.D. Mich. 1977), the court held that there could not be

a continuing violation where “an exact date can be deter-

mined on which the alleged discriminatory practice oc-

curred,” id. at 1391, stating:

If there was validity to the argument that because the

defendant still maintained its residency policy that there

was a continuing discriminatory act, then the time

limits of Title VII [sic] would become entirely mean-

ingless. For example, in every case of employment dis-

charge brought under Title VII, plaintiffs invariably

plead a pattern and practice of discriminatory conduct.

Since this pattern and practice arguably continues, the

end result would be that a discharged employee would

have forever to bring his complaint. Such was clearly

not the intention of Congress in enacting the time limits

that are contained in both Title VII and Title VIII.

Similarly, as applied to the facts in this case, the argu-

ment advanced by the plaintiff would mean that there

would be no limit in which they would have had to

institute action.

Id, at 1391. Again, the Fourth Circuit is in conflict with the

district court in Stingley in finding a continuing violation in

discrete, identifiable acts of alleged discrimination.

In view of the conflict between the Third and Fourth Cir-

cuits, a writ of certiorari should issue to resolve this im-

portant question of federal statutory construction.

CONCLUSION

This case presents important questions of federal con-

Stitutional law involving standing under the Fair Housing

Act, and federal statutory law involving the statute of limi-

tations under Section 812, on which courts of appeals and

district courts conflict. Review of the opinion and judgment

of the Court of Appeals is timely, appropriate and neces-

sary. This petition should be granted.

Respectfully submitted,

EVERETTE G. ALLEN, Jr.

Post Office Box 12085

Four North Fourth Street

Richmond, Virginia 23241

804/771-9564

Of Counsel:

JAMES F, PASCAL

LINDA L, ROYSTER

HIRSCHLER, FLEISCHER,

WEINBERG, Cox & ALLEN

Four North Fourth Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I hereby certify that six (6) copies of the foregoing

Petition for Writ of Certiorari with Appendix have been

served by mail on counsel for respondents, addressed as

follows: three (3) copies to Daniel M. Singer, Theodore

C, Hirt, Vanessa Ruiz and Dennis J. Riley, Fried, Frank,

Harris, Shriver & Kampelman, 600 New Hampshire Avenue,

N.W., Suite 1000, Washington, D. C. 20037, and three (3)

copies to James F, Stutts, McSweeney, Stutts & Burtch,

121 Shockoe Slip, Richmond, Virginia 23219.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

App. 1

TABLE OF CONTENTS

Page

OPINION OF THE FOURTH CIRCUIT COURT

PRED: cls i ck om dando cok canemnenieaeus App. 2

ORDER OF DISMISSAL IN THE DISTRICT

ERG ESI RETRY Se Re A-21

MEMORANDUM OF DISMISSAL IN THE

I EE ou percaatcccav: vcrddeuatweetes A-22

ORDER DENYING MOTION TO RECONSIDER

a I Ee CRI nda v'clic bocccsavecdsuuves A-25

ORDER FOR FINAL JUDGMENT IN THE

I I ec ulavdiddccdcesccosceberwneotber A-26

COMPLAINT IN THE DISTRICT COURT ............. A-27

ALTTIROUITING CUTED occccicccccccccccccovecccecens A-38

Me BO A ilacccccsckancunecasent A-38

42 U.S.C. § 3613 ..ccrccccccvcvvccscvvcssvcessees A-38

App. 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1199

PAUL ALLEN COLES,

Plaintiff,

AND

SYLVIA COLEMAN, R. KENT WILLIS,

and on behalf of all other similarly situated,

and Housing Opportunities Made Equal,

a Virginia Corporation,

Appellants,

HAVENS REALTY CORPORATION,

a Virginia Corporation, and Rose Jones,

Appellees.

Appeal from the United States District Court for the

Eastern District of Virginia, at Virginia. D. Dortch War-

riner, District Judge.

Argued: January 10,1980 Decided: September 18, 1980

Before FIELD, Senior Circuit Judge, HALL and

SPROUSE, Circuit Judges.

App. 3

Vanessa Ruiz (Daniel M. Singer, Theodore C. Hirt,

Dennis J. Riley, Fried, Frank, Harris, Shriver & Kampel-

man; James F. Stutts, McSweeney and Stutts on brief) for

Appellants; Richard W. Hogan (Linda L. Royster, Hirsch-

ler, Fleischer, Weinberg, Cox & Allen on brief) for Ap-

pellees.

SPROUSE, Circuit Judge:

This is an appeal from a final judgment of the district

court granting defendants’ motion to dismiss an action

involving allegations of “racial steering” and racial dis-

crimination in the rental of housing accommodations in

the City of Richmond and Henrico County, Virginia.

“Racial steering” is a practice by which real estate brokers

and agents preserve and encourage patterns of racial seg-

regation by steering members of racial and ethnic groups

to buildings occupied primarily by members of their own

racial or ethnic group and away from buildings and neigh-

borhoods inhabited by members of other races or groups.

This suit was brought under the Fair Housing Act of

1968, 42 U.S.C. §§$ 3601, 3604, 3612(a) (hereafter Fair

Housing Act) and the Civil Rights Act of 1866, 42 U.S.C.

§ 1982. The district court dismissed all the claims except

that of a single plaintiff, Paul Allen Coles. It held that the

other claims were time-barred by the 180-day limitation

period of the Fair Housing Act, and that the other plain-

tiffs lacked standing to assert discrimination claims under

either statute. After a careful review of the law, we con-

clude that all plaintiffs have standing under the Fair Hous-

ing Act and that their claims are not time-barred. We

therefore reverse and remand for further proceedings. We

do not reach the questions of standing under 42 U.S.C.

§ 1982.

The corporate plaintiff in this action is Housing Oppor-

App. 4

tunities Made Equal (HOME). HOME is a Virginia non-

profit corporation with about 600 members created for the

purpose of eliminating unlawful, discriminatory housing

practices, thereby seeking to make equal opportunity in

housing a reality in the Richmond Metropolitan Area.

HOME activities include: assisting individuals of all races

in obtaining housing in the metropolitan area through the

operation of a housing counseling service; investigating

allegations of discrimination and referring complaints to

appropriate federal and state authorities; conducting inde-

pendent investigations of real estate brokers located in the

metropolitan area to determine whether housing is being

made available without regard to race; and taking appro-

priate steps to eliminate any racial discriminatory housing

practices it may have found to exist.

The three individual plaintiffs, a “renter” and two “test-

ers”, reside in the City of Richmond or Henrico County.

Paul Allen Coles, a black person, unsuccessfully sought to

rent housing accommodations from the defendants. The

two “tester” plaintiffs, Sylvia Coleman, a black person,

and R. Kent Willis, a white person, contacted defendants

in regard to the availability of rental apartments in the

course of their employment with HOME to determine

whether defendants were practicing racial steering. Cor-

porate defendant is Havens Realty Corporation (Havens),

which is in the business of providing real estate brokerage

services for rental apartment units in Richmond. The re-

maining defendant is Rose Jones, a Havens employee.

The factual allegations in the complaint must be accepted

as true in the present posture of the case.’ So construed, the

complaint reflects the following facts relevant to the dis-

position of this appeal.

* Warth v. Seldin, 422 U.S. 490 (1975).

App. 5

An unnamed black tester on March 14, 1978, inquired

about rental vacancies at Havens and was told by Rose

Jones that nothing was available. Later that day Willis, the

white tester, asked about vacancies and was told by Jones

that apartments were available at Colonial Court and Cam-

elot Townhouse apartments. Colonial Court is integrated

and Camelot Townhouse is predominately occupied by

whites. A week later on March 21, 1978, black tester

Sylvia Coleman asked generally about vacancies in apart-

ments in Henrico County and was informed by one of de-

fendant’s employees that nothing was available, although

the same day white tester R. Kent Willis was informed by

Jones that there was an apartment at Colonial Court. Two

days later, on March 23, 1978, black tester Coleman again

asked Jones about vacancies and was told that nothing was

available. White tester Willis was informed that day by

Jones that an apartment was available at Colonial Court.

On July 6, 1978, black tester Coleman asked specifically

about Camelot Townhouse apartments and again received

a negative response, but she was told about a vacancy at

Colonial Apartments. That same day white tester John

Barr, upon inquiry, was told an apartment was available

at Camelot Townhouse apartments.

Coles visited defendant’s offices on July 13, 1978, in-

quiring into the availability of apartments at Camelot

Townhouses. He was informed there were no vacancies at

Camelot but that an apartment was available in the adjoin-

ing integrated Colonial Court Apartment complex. The

same day John Barr, a white tester, was informed by Rose

Jones telephonically that an apartment was available at

Camelot Townhouse—upon visiting the defendant's offices

Barr was again informed that an apartment was available

in the Camelot Townhouse.

App. 6

The plaintiffs filed this action on January 9, 1979, in-

dividually and as a class action. The class included all

persons who have rented or sought to rent residential prop-

erty in Henrico County, Virginia, and who are adversely

affected by the defendant’s discriminatory acts, policies

and practices. They seek declaratory and injunctive relief

for the class, as well as an order requiring Havens to take

various affirmative actions to overcome the effect of its

past discriminatory actions. The individual plaintiffs in

addition seek compensatory and punitive damages. HOME

asks for its activity and litigation expenses.

Plaintiffs allege that the Richmond Metropolitan Area,

including Henrico County, is racially segregated in its hous-

ing patterns; that is, it contains identifiable “white” and

“black” neighborhoods; that the defendants’ practices of

racial steering contribute to the maintenance of existing

neighborhood segregation and inhibit the development of

stable, racially integrated neighborhoods; that defendants

treat white and non-white prospective lessees differently

based on their race or color; that defendants have engaged

in practices to the detriment and injury of the plaintiffs and

other similarly situated persons by consistently showing

only prospective white customers renta! units in buildings

occupied primarily by white tenants, by consistently re-

fusing or failing to show black prospective customers ren-

tal units in buildings occupied primarily by white tenants,

and, on occasion, by failing or refusing to show prospective

black customers rental units in less racially segregated

buildings.

The complaint alleges that tester plaintiff Coleman (be-

cause of his race) and white tester Willis have been denied

the right to rent real property in Henrico County and

therefore have been deprived of the advantages and con-

App. 7

veniences they would have enjoyed from living in this area,

namely the right to the important social, professional,

business, economic, political and aesthetic benefits of in-

terracial associations that arise from living in integrated

communities free from discriminatory housing practices.

It is also alleged that all the members of the class have

been deprived of the right to the important social, profes-

sional, business, economic, political and aesthetic benefits

of interracial associations that arise from living in integrated

communities free from discriminatory housing practices, in

violation of the Fair Housing Act.

The complaint alleges that HOME has had to devote sig-

nificant resources to identify and counteract the defendant's

racially discriminatory steering practices; and that HOME

members have, as a result of defendants’ practices, been

deprived of the right to the important social, professional,

business and economic, political and aesthetic benefits of

interracial associations that arise from living in integrated

communities free from discriminatory housing practices in

violation of the Fair Housing Act.

STANDING

All plaintiffs have standing. Willis and Coleman have

standing as testers but, even if this were not so, they have

alleged sufficient personal harm to give them standing.

HOME has Article III standing both as a representative of

its members and on the basis of its allegations of harm to

the corporation.

TESTERS

The question of standing for testers under the Fair Hous-

ing Act was left unanswered by the Supreme Court in its

App. 8

seminal pronouncement on Fair Housing Act standing in

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91

(1979). The involvement of Willis and Coleman and their

treatment by the defendants, however, presents strong

public policy reasons for resolving that question in favor

of Fair Housing Act standing for bona fide testers. The

basic appropriateness of affording them standing to litigate

todays issues of fair housing parallels the importance of

the right to litigate the crucial issues decided in Pierson v.

Ray, 386 U.S. 547 (1967) and Evers v. Dwyer, 358 U.S.

202 (1958). There are, of course, distinctions in the cases

but the binding similarity is that they all treat the right of

testers to challenge actions frustrating vital public policy

where in most instances no other effective challenge could

be mounted. The testers in Pierson actively sought inte-

grated admission to the “whites only” section of the bus

station; in Evers they occupied seats in the forbidden sec-

tion of the bus. While the testers here only inquired about

apartment rentals and did not apply to rent an apartment,

their actions serve the same fundamental purposes as the

testers in Pierson and Evers. Willis and Coleman purpose-

fully approached the defendants as the first step in eradicat-

ing racial discrimination in housing, a social evil so anti-

thetical to a free and democratic society that Congress has

devised special and sharp tools for its excision. Housing,

as a personal choice right of a citizen, is no less important

than other rights affecting human dignity, such as unfet-

tered access to public facilities. In Evers the Court wrote

per curiam:

A resident of a municipality who cannot use transporta-

tion facilities therein without being subjected by statute

to special disabilities necessarily has, we think, a sub-

stantial, immediate, and real interest in the validity of

App. 9

the statute which imposes the disability. (Citation

omitted). That the appellant may have boarded this

particular bus for the purpose of instituting this litiga-

tion is not significant. (Citations omitted).

Id. at 204.

In Pierson a group of clergymen traveled to Jackson,

Mississippi for the sole purpose of testing their rights to

unsegregated public accommodations. The “Court said,

“(t]he petitioners had the right to use the waiting room of

the Jackson bus terminal, and their deliberate exercise of

that right in a peaceful, orderly, and inoffensive manner

does not disqualify them from seeking damages under

§ 1983.” 386 U.S. at 558 (footnote omitted).

In Pierson and Evers the court said in effect that since

the plaintiffs were not representing injuries to third parties

but rather to themselves there was no issue of prudential

limitations. Here Willis and Coleman, in their capacity as

employed testers, unquestionably assert the rights of third

parties. As explained in Warth’ however, Congress elimi-

nated prudential considerations in Fair Housing Act cases,

intending that standing be allowed as broadly as constitu-

tionally permitted by Article III. Gladstone, Realtors v.

Village of Bellwood, 441 U.S. 91, 109 (1979); Trafficante

v. Metropolitan Life Insurance Co., 409 U.S. 205, 209

(1972).

The breadth of Congressional protection against housing

discrimination is apparent from the language of Section

3604(d), 42 U.S.C. § 3604(d) which makes it unlawful

“[t]o represent to any person because of race, color, reli-

gion, sex, or national origin that any dwelling is not avail-

able for inspection, sale, or rental when such dwelling is in

fact so available.” This prohibition against providing false

? Id. at 509-10.

App. 10

information creates a concomitant right to receive correct

housing information without regard to race or color. Indi-

viduals illegally denied housing by subterfuge are, by the

nature of the wrongful act, less able than others in our

society to require enforcement of the Civil Rights Act

through private litigation as “private attorneys general”.

There is no rational reason why their bona fide surrogates

cannot pursue their cause. If the defendants had supplied

the testers truthful information—that apartments were

available both in Colonial Apartments and Camelot Town-

house Apartments—there would have been no injury and

the social reform legislated by Congress would have been

advanced without resort to the courts.

It is not necessary to formulate a general rule circum-

scribing standing for tester plaintiffs. Suffice it to say that

they occupy a narrow island limited to areas fundamentally

necessary for access to the federal courts as presented by

Pierson and Evers or, as here, where Congress has recog-

nized a similar deeply-grounded human right. The legisla-

tive design of the Fair Housing Act provides such broad

standing for enforcement of the right. This is consistent

with the Trafficante and Bellwood interpretation of the

Fair Housing Act—maintaining the prophylactic quality

of Article III limitations while recognizing the elasticity

necessary to accommodate constitutional Congressional

intent.

DIRECT INJURY TO “TESTERS”

Coleman and Willis also alleged violations of their right

to enjoy the fruits of an integrated community in much

the same language as the individual plaintiffs in Trafficante

and Bellwood. This similarity gives weight to their status

as bona fide “testers”. These allegations, mareover, are

App. 11

sufficient to grant standing for each of them as individual

plaintiffs.

The Supreme Court in Warth, discussing an alleged

violation of 42 U.S.C. § 1981, stated:

We hold only that a plaintiff who seeks to challenge

exclusionary zoning practices must allege specific, con-

crete facts demonstrating that the challenged practices

harm him, and that he personally would benefit in a

tangible way from the courts’ intervention. Absent the

necessary allegations of demonstrable, particularized

injury, there can be no confidence of “a real need to

exercise the power of judicial review” or that relief can

be framed “no broader than required by the precise

facts to which the court’s ruling would be applied.”

Warth v. Seldin, 422 U.S. at 508.

The Warth opinion indicated a reservation as to whether

the same ruling would have applied to a Fair Housing Act

case. Trafficante and Bellwood however decided standing

under Fair Housing Act principles. Coleman and Willis

both claim deprivation of community rights in language

at least as specific as approved there. They are residents of

Henrico County included within the Richmond Metropoli-

tan area. They claim the practice of racial steering has ad-

versely affected the area in which they live and that the

defendants have engaged in racial steering. Black tester

Coleman claims she has been denied the right to rent prop-

erty and to make and enforce contracts for the lease of

real estate in Henrico County by defendants’ action; has

been deprived of the advantages and conveniences she

would have enjoyed from living in the area, and has been

deprived of the right to the important social, professional,

business, economic, political, and aesthetic benefits of in-

8 Jd. at 513 n. 21.

App. 12

terracial associations that arise from living in integrated

communities free from discriminatory housing practices.

White tester Willis claims he has been deprived of the

same rights afforded by integrated communities. Both Cole-

man and Willis claim they have been subjected to a “dual”

housing market in Henrico County on the basis of race or

color by defendants’ practices.

Housing discrimination injuries are not inflicted so

neatly that the wounded can always be identified as indi-

viduals, representatives of individuals, or members of a

community. The Supreme Court’s expressions on standing

thus are not rigidly compartmentalized as governing ex-

clusively those directly injured, testers, or members of the

community.

In Trafficante v. Metropolitan Life Insurance, Co., 409

U.S. 205, 208 (1972), one black and one white tenant of

an apartment complex complained of discriminatory rental

practices, alleging:

(1) they had lost the social benefits of living in an

integrated community; (2) they had missed business

and professional advantages which would have accrued

if they had lived with members of minority groups;

(3) they had suffered embarrassment and economic

damage in social, business, and professional activities

from being “stigmatized” as residents of a “white

ghetto”. (Footnote omitted).

The Court held plaintiffs were persons “aggrieved” as de-

fined in Section 810(a) of the Fair Housing Act, i.e., any

person who claims to have been injured by a discrimina-

tory housing practice. In this context Justice Douglas said:

The person on the landlord’s blacklist is not the only

victim of discriminatory housing practices; it is, as

Senator Javits said in supporting the bill, “the whole

App. 13

community,” 114 Cong. Rec. 2706, and as Senator

Mondale who drafted § 810(a) said, the reach of the

proposed law was to replace the ghettos “by truly in-

tegrated and balanced living patterns.”

Id, at 211.

In Bellwood four white plaintiffs, who were residents of

the target area of Bellwood, alleged that discriminatory

housing practices deprived them of “the social and profes-

sional benefits of living in an integrated society.” 441 U.S.

at 111. The Court noted the allegation was similar to that

in Trafficante, where it was held that the injury alleged

was sufficient to satisfy the constitutional standing require-

ment of actual or threatened harm. The broad definition of

“person aggrieved” under § 810 of the Fair Housing Act

was considered a clear indication of Congressional intent

to permit liberal standing. The Court considered this to be

a part of the scheme of the Act to encourage enforcement

by complaints from private persons or “private attorneys

general” which are “the main generating force” in “vindi-

cating a policy that Congress considered to be of the high-

est priority.” The ‘private attorneys general’ role under the

Civil Rights Act of 1968 serves not only to protect “those

against whom a discrimination is directed but also those

whose” daily lives are affected. Trafficante, id. at 209 &

211.

We have neither the power nor the desire to minimize

the “case and controversy” requirements of Article III. The

modern decisions have not. The constitutional inquiry nec-

essary in confining litigation to proper parties over appro-

priate disputes remains as generally stated in Warth v.

Seldin, 422 U.S. 490, 498-99 (1974), citing, Baker v.

Carr, 369 U.S. 186, 204 (1962)—“whether the plaintiff

has ‘alleged such a personal stake in the outcome of the

App. 14

controversy’ as to warrant his invocation of federal-court

jurisdiction and to justify exercise of the court's remedial

powers on his behalf.”

ORGANIZATIONAL STANDING

The plaintiff HOME claims its members have been de-

prived of community advantages by defendants’ actions in

the same language utilized by Coleman and Willis. HOME

therefore has representational standing to litigate these

claims on behalf of its members.* Hunt v. Washington Ap-

ple Advertising Commission, 432 U.S. 333 (1977), sum-

marizes the requirements of representational standing where

the organizational plaintiff has not itself suffered injury:

[W]e have recognized that an association has standing

to bring suit on behalf of its members when: (a) its

members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are ger-

mane to the organization's purpose; and (c) neither the

claim asserted, nor the relief requested, requires the

participation of individual members in the lawsuit.

Id. at 343.

See also Warth v. Seldin, 422 U.S. at 511 wherein the

Court said:

Even in the absence of injury to itself, an associa-

tion may have standing solely as the representative of

its members. . . . The association must allege that its

members, or any one of them, are suffering immediate

or threatened injury as a result of the challenged action

of the sort that would make out a justiciable case had

the members themselves brought suit.

* It however can not re nt its members in individual claims for

damages where both the fact and extent of injury would require in-

dividualized proof. Warth v. Seldin, 422 U.S. at 511 & 515-16,

App. 15

Td. at 511.

The complaint also alleges sufficient injury to HOME

as an entity to confer standing on it directly. It claims

HOME has been frustrated in its efforts to assist equal

access to housing through counseling and other referral serv-

ices. HOME has devoted significant resources identifying

and counteracting the defendants’ racially discriminatory

steering practices.

This is more than the protestations of general interest

found to be insufficient for standing in Sierra Club v. Mor-

ton, 405 U.S. 727 (1972) and Warth v. Seldin, supra, and

by the court of appeals in Bellwood, 569 F.2d 1013, 1917

(1978). Although not equaling, it approaches the injury

suffered by the nonprofit developer in Village of Arlington

Heights v. Metropolitan Housing Development Corp, 429

U.S. 252 (1977). See also Park View Heights Corp. v. City

of Black Jack, 467 F.2d 1208 (8th Cir. 1972); Heights

Community Congress v. Rosenblatt Realty, Inc., 73 F.R.D.

1 (N.D. Ohio 1975). In Arlington Heights the Court said:

MHDC is a nonprofit corporation. Its interest in build-

ing Lincoln Green stems not from a desire for economic

gain, but rather from an interest in making suitable

low-cost housing available in areas where such housing

is scarce. This is not mere abstract concern about a

problem of general interest. See Sierra Club v. Morton,

supra, at 739. The specific project MHDC intends to

build, whether or not it will generate profits, provides

that “essential dimension of specificity” that informs

judicial decisionmaking. Schlesinger v. Reservists to

Stop the War, 418 U.S. 208, 221 (1974).

Id. at 263.

Although HOME’s goals cannot be equated with bricks

and mortar, they are functional, requiring identifiable action

and the expenditure of effort and funds which may result in

App. 16

success or failure in achieving its objectives. Its “projects”

therefore “provides that ‘essential dimension of specificity’

that informs judicial decision making,” as described in Ar-

lington Heights.

THE TARGET AREA

The defendants in oral argument contended that the City

of Richmond or Henrico County is too large’ as a matter

of law to comprise a “target area” of housing discrimina-

tion, The “target area” in Trafficante was an apartment

complex of 8,200 tenants, while the population of Bellwood

in which the target neighborhood was located was estimated

at 20,969. Gladstone, Realtors v. Bellwood, Id. at 113 n.

27. As the Court said in Bellwood, however:

The constitutional limits of respondents’ standing to

protest the intentional segregation of their community

do not vary simply because that community is defined

in terms of city blocks rather than apartment buildings.

Rather, they are determined by the presence or absence

of a “distinct and palpable injury,” Warth v. Seldin,

422 U.S., at 501, to respondents resulting from peti-

tioners’ conduct. A “neighborhood” whose racial com-

position allegedly is being manipulated may be so ex-

tensive in area, so heavily or even so sparsely populated,

or so lacking in shared social and commercial inter-

course that there would be no actual injury to a par-

ticular resident. The presence of a genuine injury

should be ascertainable on the basis of discrete facts

presented at trial. (Footnote omitted).

* The population of the City of Richmond is 219,883 while that

of Henrico County, Virginia is 172,922. Department of Commerce,

Bureau of Census, Current Population Reports, Special Census of

the Richmond, Virginia areas, April 4, 1978, p. 1, published

August, 1979.

App. 17

Id. at 114.

The district court’s dismissal prevented plaintiffs Cole-

man, Willis, and HOME from proceeding to trial. Since alle-

gations bearing on standing must be actualized by proof, the

defendants may, on remand, contest these as any other

facts. The complaint in the instant case does not specifically

allege that the discrimination practiced at Colonial Courts

and Camelot Townhouse Apartments affect the area where

the testers reside. The district court may require the com-

plaint to be amended for such allegation necessary to facili-

tate production of evidence bearing on this issue. If the alle-

gations are not supported by proof at trial, the case may be

terminated for lack of standing at an appropriate stage of the

trial. Jd. at 115 n. 31.

STATUTE OF LIMITATION

The defendants contend and the district court held that

all the alleged Fair Housing Act violations except the one

of July 13, 1978, involving Coles are time-barred by the

statute of limitation contained in 42 U.S.C. § 3612(a). The

applicable part of that statute states simply: “a civil action

shall be commenced within one hundred and eighty days

after the alleged discriminatory housing practice occurred.”

It is conceded that each of the specific acts of the defend-

ants except the one of July 13 transpired more than 180

days before the complaint was filed. The defendants contend

that each discrete act constitutes an “occurrence” and an

action is barred as to each specific act after 180 days. The

plaintiffs contend that the “occurrence” is the defendant's

continuing practice of racial steering and that the 180 days

commences with the last act—in this case the violation of

July 13. We agree with the plaintiffs and hold that none of

App. 18

the allegations in the complaint are time-barred by the 180-

day provision.

Hickman v. Fincher, 483 F.2d 855 (4th Cir. 1973),

affirmed a district court ruling that barred an action com-

menced more than 180 days after the last act of discrimina-

tion. Hickman, however, is not dispositive because there was

no allegation of a continuing violation or a pattern of vio-

lations.

There is an appealing simplicity equating “occurrence” to

a discrete act. Not simple, however, are the social ills tar-

geted by Congress nor the actions of putative landlords.

It is not isolated instances of discrimination that are the

primary focus of the statute—rather it is a generalized prac-

tice of housing discrimination.

The Court of Appeals for the Seventh Circuit considered

a similar contention in Baker v. F & F Investment, 420

F.2d 1191 (7th Cir. 1970). Negro purchasers of real estate

on installment contracts alleged they were burdened with dis-

criminatory prices and terms. The defendants there argued

that they had performed only a single action—the execu-

tion of the contract—and that this was time-barred. The

court disagreed, holding the violations continued during the

lives of the contracts:

Plaintiffs have alleged wrongs committed by defend-

ants which continue during the entire lives of the in-

dividual purchase contracts. They have alleged a con-

spiracy among defendants, the object of which was the

establishment of a continuing relationship with indivi-

dual plaintiffs. . . . Because of the continuing nature

of the overt acts alleged, the statutes of limitations do

not commence to run when the contracts were exe-

cuted but when they terminate.

[T]he touchstone of our inquiry must be the nature and

App. 19

extent of defendants’ behavior, not the duration of

plaintiff's injury.

Id. at 1200 (Citation omitted ).

See Cedeck v. Hamiltonian Federal Savings & Loan

Association, 551 F.2d 1136 (8th Cir. 1977) and Macklin

v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir.

1973). See also Fair Housing Council of Bergen County,

Inc. v. Eastern Bergen County Multiple Listing Service,

Inc., 422 F.Supp. 1071, 1078 (D.N.J. 1976) where the

New Jersey District Court said, in considering the § 3612(a)

time limitation:

Congress obviously included such a provision to pre-

vent the district courts from being used to exhume stale

grievances. No such considerations apply to the case at

bar. Plaintiffs have alleged what amounts to a continu-

ing conspiratorial practice on the part of multiple, in-

fluential defendants. Taking the complaint as true, as

is required at this early juncture, plaintiffs’ grievance is

anything but stale. It is fresh and immediate.

See Stingley v. City of Lincoln Park, 429 F.Supp. 1379

(E.D. Mich. 1977).

The Sixth Circuit in Hunter v. Atchinson, 466 F.2d 490

(6th Cir. 1972), held that the facts of a given case would

determine whether the language of § 3612(a) means the

statute runs from the first or the last of the discriminatory

acts. That opinion reversed the district court’s dismissal and

remanded for an evidentiary hearing noting “[t]his case may

ultimately require us to construe the Congressional purpose

involved in the limitation. .. .” /d. at 491.

There is no reason to differentiate the purpose of the

§ 3412(a) statute of limitation from general statutes bar-

ring litigation after a lapse of time. Lawmakers protect

App. 20

litigants from perpetual threats of lawsuits and protect the

integrity of enlightened fact finding, These policies do not

militate against our holding. The instant controversy was

continuing—the evidence easily obtainable. It is not unfair

to require these defendants to litigate the matter when they

were, according to the complaint, acutely aware of their

continuing activities. Coles, Coleman, Willis and HOME

were involved in active, consecutive, connected, and con-

tinuing attempts to secure or determine compliance with

the Fair Housing Act. The defendants, just as resolutely,

continued their practice of prohibited discrimination against

these specific individuals. This, under the circumstances, is

a continued relationship between the defendants and the

plaintiffs and a continued violation of § 3604 so that the

violations continued to “occur” until the last act of July 13,

1978. By the very nature of these offenses, “occurrence”

must be thus construed to effect the remedial purposes of

the act.

Reversed and Remanded.

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

PAUL ALLEN COLES,

et al

Vv.

HAVENS REALTY CORPORATION,

et al

Civil Action No. 79-0024-R

ORDER

In accordance with the memorandum this day filed, the

claims of plaintiffs Sylvia Coleman, R. Kent Willis, and

Housing Opportunities Made Equal are hereby DISMISSED

for failure to state a claim on which relief may be granted.

In all other respects, defendants’ motion to dismiss filed 31

January 1979 is hereby DENIED.

Let the Clerk send a copy of this order and memorandum

to all counsel fo [sic] record.

/s/ D. DORTCH WARRINER

United States District Judge

Date: 16 February, 1979

App. 22

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

PAUL ALLEN COLES,

et al

HAVENS REALTY CORPORATION,

et al

Civil Action No. 79-0024-R

MEMORANDUM

This matter is before the Court on defendants’ motion

to dismiss of 31 January 1979. The time allotted by the

Local Rules for plaintiffs’ reply to this motion has expired,

and plaintiffs have not responded by memorandum or other-

wise. Accordingly, the motion is now ripe for disposition.

The defendants’ motion has several parts, each of which

will be considered separately.

Defendants state that all of plaintiffs’ claims but one

are based on acts of discrimination which occurred more

than 180 days before the filing of the complaint in this case.

Accordingly, defendants argue, all claims under the Fair

Housing Act of 1968 except that based on the alleged dis-

criminatory act on 13 July 1978 are barred by the appli-

cable statute of limitations, 42 U.S.C. § 3612(a). This claim

is well taken, and the action will be dismissed as to all

barred claims. The Court notes that none of plaintiffs’ claims

are time-barred under the two-year statute of limitations

applicable to 42 U.S.C. § 1982.

App. 23

Defendants argue that the corporate plaintiff, Housing

Opportunities Made Equal (HOME) is not a proper party

plaintiff to this law suit. The Court believes that the law

is clear that HOME is not a proper party to this action and

cannot be accorded any relief by this Court. Warth v. Seldin,

422 U.S. 490 (1975); TOPIC v. Circle Realty, 532 F.2d

1273 (9th Cir. 1976). Accordingly HOME will be dis-

missed as a party plaintiff.

Defendants claim that the “tester” plaintiffs (Coleman

and Willis), the persons who allegedly sought to rent from

defendants in order to prove a pattern of discrimination,

have suffered no injury and thus are entitled to no relief.

Plaintiffs’ complaint makes it clear that Coleman and Willis

did not attempt in good faith to rent residential property

from any defendant, but instead sought only to develop

evidence for use in this law suit. Their action seeks to vin-

dicate the rights of third parties, dispite [sic] their allegation

of deprivation of benefits from interracial associations. In

asserting the claim based on these deprivations, Coleman

and Willis assert no more than the general public interest.

Furthermore, there is no allegation that absent the defend-

ants’ discriminatory practices, Coleman and Wiliis would

reside in integrated communities. Thus, Coleman and Willis

must be dismissed as parties plaintiff.

Defendants argue that none of the plaintiffs allege that

they actually offered to rent an apartment from any de-

fendant, and thus may not maintain an action or denial

of rental housing. However, the gravamen cf plaintiffs’

complaint is that when black persons inquired as to va-

cancies, they were told that none existed. Under these

circumstances, no affirmative offer to rent need be shown in

order to state a claim.

Defendants suggest that Coleman, Willis, and HOME are

App. 24

not proper class representatives. The Court’s ruling that

these plaintiffs’ claims be dismissed make it unnecessary to

consider this claim. However, the Court does not agree

that plaintiff Coles cannot represent a class merely because

his claim is based on a single individual act of discrimina-

tion. Further, while plaintiffs’ failure to file their complaint

herein until some claims had been time-barred—and their

failure to respond to defendants’ motion and brief—are indi-

cations that plaintiffs may not adequately represent the in-

terest of the class, these matters are ones for the Court to

consider on a motion for class certification after there has

been an opportunity for discovery cf the question of class

certification to determine the factual questions raised by

defendants’ contentions.

An appropriate order shall issue.

/s/ D. DORTCH WARRINER

United States District Judge

Date: 16 February 1979

App. 25

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

PAUL ALLEN COLES, et al

HAVENS REALTY CORPORATION, et al

Civil Action No. 79-0024-R

ORDER

As is made clear by Local Rule 11(F) and (P), appli-

cations for extensions of time are granted by the Court, not

by opposing counsel. Accordingly, the motion of plaintiffs

Coleman, Willis, and Housing Opportunities Made Equal

to reconsider, filed herein on 16 February 1979, is DENIED

and the brief tendered on 20 February 1979, and mistakenly

marked “filed” by the Clerk, will not be considered.

And it is so ORDERED.

Let the Clerk send a copy of this order to all counsel of

record.

/s/ D. DoRTCH WARRINER

United States District Judge

Date: 22 February 1979

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

PAUL ALLEN COLES, SYLVIA COLEMAN,

R. KENT WILLIS, and on behalf of all others

similarly situated, and

HOUSING OPPORTUNITIES MADE EQUAL,

a Virginia Corporation,

Plaintiffs,

HAVENS REALTY CORPORATION,

a Virginia Corporation,

and

ROSE JONES,

Defendants.

Civil Action No. 79-0024-R

ORDER FOR FINAL JUDGMENT

On the prior Order of this Court, dated and entered

February 16, 1979, it appearing to the Court that there is

no just reason for delay in entering final judgment on

Defendants’ Motion to Dismiss the Claims of plaintiffs,

Sylvia Coleman, R. Kent Willis and Housing Opportunities

Made Equal it is, pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure,

ORDERED that a final judgment be entered herein that

the claims of these plaintiffs are dismissed.

/s/ D. DoRTCH WARRINER

United States District Judge

Date 6 March 1979

App. 27

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

PAUL ALLEN COLES, SYLVIA COLEMAN,

R. KENT WILLIS, and on behalf of all others

similarly situated, and

HOUSING OPPORTUNITIES MADE EQUAL,

a Virginia Corporation,

Plaintiffs,

Vv.

HAVENS REALTY CORPORATION,

a Virginia Corporation,

and

ROSE JONES,

Defendants.

Civil Action No. 79-0024

COMPLAINT

(For Declaratory Judgment, Damages and

Injunctive Relief)

1. This is an action for a declaratory judgment, damages

and injunctive relief to redress the deprivation of rights,

privileges and immunities of the plaintiffs, and all other

members of the class they represent, from the acts, patterns,

practices and policies of the defendants that restrain, limit,

classify, segregate and otherwise discriminate on the basis

of race or color, in the rental of residential housing units

in Henrico County, Virginia, This action involves the pat-

tern and practices of defendants of denying housing on the

basis of race and of racial steering, a practice by which real

App. 28

estate brokers and agents preserve and encourage patterns

of racial segregation in available housing by steering mem-

bers of racial and ethnic groups to buildings occupied pri-

marily by members of such racial and ethnic groups and

away from buildings and neighborhoods inhabited primarily

by members of other races or groups, a practice in violation

of the statutes set forth herein. This action arises under 42

U.S.C. §3601 and §3604 (the Fair Housing Act of

1968), and 42 U.S.C. §1982 (the Civil Rights Act of

1866). This Court has jurisdiction of this action under 42

U.S.C. §3612(a), 28 U.S.C. §§$1331, 1337, 1343(4) and

2201.

2. The individual plaintiffs are members of a class com-

posed of all persons who have rented or sought to rent

residential property in Henrico County, Virginia, and who

have been, or continue to be, adversely affected by the

acts, policies and practices of defendants complained of

herein.

3. The number of persons in the class represented by

the individual plaintiffs (“plaintiff class”) is so numerous

that joinder of all members is impracticable.

4. There are questions of law and fact common to the

plaintiff class. These questions include, among others,

whether or not the practices engaged in by defendants in

Henrico County deprive the members of the plaintiff class

of civil rights secured to them by the Fair Housing Act of

1968 and the Civil Rights Act of 1866. The method by

which the defendants violate these statutes and engage in

the practice of racial steering is one of the questions of fact

common to the plaintiff class.

5. The claims of the representative plaintiffs are typical

of the claims of the plaintiff class. The representative plain-

tiffs will fairly and adequately protect the interests of the

App. 29

plaintiff class because their interests and those of the

plaintiff class are coextensive. Counsel for the representative

plaintiffs are capable of conducting the litigation com-

menced by the filing of this complaint.

6. Defendants have acted or refused to act on grounds

generally applicable to the plaintiff class, thereby making

appropriate final injunctive and corresponding declaratory

relief with respect to the plaintiff class as a whole.

7. The individual plaintiffs to this action are all residents

of the City of Richmond or Henrico County and have been

injured by the discriminatory acts of the defendants. Plain-

tiff Paul Allen Coles is a black man who has attempted

to rent residential property from the defendants (“renter

plaintiff”). The remaining individually-named plaintiffs,

Sylvia Coleman, a black woman, and R. Kent Willis, a

white man (“tester plaintiffs”), have consulted defendants

with regard to available rentals in the course of their em-

ployment with Housing Opportunities Made Equal to deter-

mine whether or not defendants have practiced racial

steering in the rental housing market.

8. Housing Opportunities Made Equal (“HOME”) is

a nonprofit corporation organized under the laws of the

State of Virginia with its principal place of business at

503 East Main Street, Richmond, Virginia, 23219. Its

purpose is to make equal opportunity in housing a reality

in the Richmond Metropolitan Area. Its membership is

multiracial and includes approximately 600 individuals. Its

goals include the elimination of unlawful racially discrimi-

natory housing practices that cause injury to its members, to

all persons who seek to rent apartment units in the Metro-

politan Area and to all persons who reside in the Metropoli-

tan Area. HOME seeks to assure to all such persons the

right to the important social, professional, business, eco-

App. 30

nomic and political benefits of interracial associations that

arise from living in integrated communities. The activities

in which HOME engages includes [sic], but are not limited

to, the following:

(a) Seeking to assist and aid individuals of all races in

obtaining housing throughout the Richmond Metropolitan

Area, through the operation of a housing counselling

[sic] service;

(b) Investigating allegations of discrimination and refer-

ring complaints to appropriate state and federal agencies;

brokers located in the Richmond Metropolitan Area to de-

termine whether equal opportunity in housing is available,

and taking such steps as it may deem necessary to assure

such equal opportunity and to eliminate racially discrimina-

tory housing practices.

9. Defendant Havens Realty Corporation is a Virginia

Corporation with its principal place of business at Camelot

Townhouses and Colonial Court Apartments, 9108-A Qui-

occasin Road in Henrico County, Virginia. At all times

relevant to this action, Havens Realty Corporation has been

engaged in the business of real estate brokerage services as

to apartment rental units in Richmond. Defendant Rose

Jones is an employee of Havens Realty Corporation.

10, Like other metropolitan areas throughout the United

States, the Richmond Metropolitan Area, including Henrico

County, has been marked by racially segregated residential

housing patterns. Neighborhoods have reflected the impact

of segregation resulting from the actions of private indi-

viduals and groups, restrictive covenants, zoning and other

factors, so that area neighborhoods can generally be identi-

fied as “white” or “black” neighborhoods. The practice or

[sic] “racial steering” engaged in by these defendants, con-

tributes to maintaining existing neighborhood segregation

App. 31

and inhibits the development of stable racially integrated

neighborhoods.

11. Defendants treat differently white and non-white

prospective lessees on the basis of race or color. Defendants

have engaged in practices to the detriment and injury of the

plaintiffs herein and others similarly situated by consistently

showing only prospective white customers (“customers”)

rental units in a building occupied primarily by white ten-

ants, by consistently refusing or failing to show black cus-

tomers (“customers”) rental units in the aforementioned

building occupied primarily by white tenants, notwithstand-

ing the “listings” for rentals in that building that fall within

the category of housing sought by such black customers,

and on occasion by failing or refusing to show prospective

black customers rental units in a less racially segregated

building or by showing such prospective black customers

only rental units in the less racially segregated building.

12. The patterns, practices, acts and policies of defend-

ants, as hereinabove alleged, in restraining, limiting, classi-

fying, segregating and otherwise discriminating on the basis

of race or color in the rental of residential real estate in

Henrico County, and in the rendition of real estate broker-

age services in connection therewith, have caused injury to

the plaintiff class. Renter plaintiff Coles has been denied

the right to rent real property in a predominantly white-

occupied building in Henrico County in violation of the

1866 Civil Rights Act, 42 U.S.C. §1982 and the Fair

Housing Act of 1968, 42 U.S.C. §3604, in the following

manner: On July 13, 1978, plaintiff Coles visited the office

of Havens Realty Corporation located at the Camelot Town-

houses to inquire into available apartments at Camelot

Townhouses. Camelot Townhouses is an apartment com-

plex predominantly occupied by whites. Coles was informed

that no apartments were available in the Camelot complex.

App. 32

He was told that an apartment was available in the adjoin-

ing Colonial Court complex. The Colonial complex is inte-

grated. That same day white tester John Barr telephoned

the Havens office and was informed by defendant Rose

Jones that an apartment was available in Camelot Town-

houses. That same day John Barr visited the Havens office

and was informed by Susan Newton, then an employee of

Havens, that an apartment was available in the Camelot

Townhouses.

13. Defendants have evidenced a pattern, practice and

policy of racial steering to the specific injury of tester plain-

tiff Sylvia Coleman, in the following manner:

(a) On March 14, 1978, black tester Sylvia Coleman

asked about vacancies at Colonial Court but was told by

the defendant Rose Jones that nothing was available; that

same day white tester R. Kent Willis asked about vacancies

at Colonial Court and was told by defendant Rose Jones

that two apartments were available, both at Colonial Court

and Camelot Townhouse apartments;

(b) On March 21, 1978, black tester Sylvia Cole-

man asked generally about vacancies in apartments in

Henrico County but was told by defendant Susan Newton

that nothing was available; that same day white tester R.

Kent Willis asked about vacancies at apartments in Henrico

County and was told by defendant Rose Jones that an apart-

ment was available at Colonial Court;

asked Rose Jones about vacancies in defendant's buildings

but was told by employee Susan Newton that nothing

was available; that same day white tester R. Kent Willis

asked about vacancies in the defendant’s apartment com-

plexes and was told by employees Rose Jones and Susan

Newton that an apartment was available at Colonial Court;

(d) On July 6, 1978, black tester Sylvia Coleman

App. 33

asked about vacancies at the Camelot Townhouses complex,

but was told that nothing was available at Camelot Town-

houses; black tester Coleman was told that there was a

vacancy at Colonial Court apartments; that same day white

tester John Barr asked about vacancies at Camelot Town-

house apartments and was told an apartment was available

at Camelot Townhouse apartments.

14. Renter plaintiff Paul Allen Coles and tester plaintiff

Sylvia Coleman have, because of their race, been denied

the right to rent real property in Henrico County, Virginia,

and therefore have been deprived of the advantages and

conveniences they would have enjoyed from living in this

area and the right to the important social, professional,

business and economic, political and aesthetic benefits of

interracial associations that arise from living in integrated

communities free from discriminatory housing practices.

These individual plaintiffs and the members of the class

they represent have been deprived of the right to live in

communities that are not limited, classified or segregated

on the basis of race or color, in violation of the Fair Hous-

ing Act of 1968, 42 U.S.C. §3601, et seq.; and the right to

make and enforce contracts for the lease of real estate, in

violation of the Civil Rights Act of 1866, 42 U.S.C. §1982.

15. White tester plaintiff R. Kent Willis and the mem-

bers of the class he represents, have been deprived of the

right to the important social, professional, business and eco-

nomic, political and aesthetic benefits of interracial asso-

ciations that arise from living in integrated communities

free from discriminatory housing practices, in violation of

the Fair Housing Act of 1968, 42 U.S.C. §3601, et seq.

16. Plaintiff HOME has been frustrated by defendants’

racial steering practices in its efforts to assist equal access

to housing through counseling and other referral services.

Plaintiff HOME has had to devote significant resources to

App. 34

identify and counteract the defendant’s racially discrimina-

tory steering practices. HOME members have, as a result

of defendants’ practices, been deprived of the right to the

important social, professional, business and economic,

political and aesthetic benefits of interracial associations

that arise from living in integrated communities free from

discriminatory housing practices, in violation of the Fair

Housing Act of 1968, 42 U.S.C. §3601, et seq.

17. The individual plaintiffs and the class they represent

have been subjected to acts, patterns, practices and policies

of the defendants, which have created, cultivated and per-

petuated a discriminatory “dual” housing market in Henrico

County by limiting, classifying and segregating said com-

munities on the basis of race or color, in violation of the

Fair Housing Act of 1968, 42 U.S.C. §3601, et seq.

18. The plaintiffs have no adequate remedy at law. The

individual plaintiffs and the class they represent have suf-

fered, are now suffering and will continue to suffer irre-

parable harm and injury by the unlawful policies and dis-

criminatory practices of the defendants. The infringement

upon the rights of the plaintiffs and the class they represent

is grave, immediate and continuing.

WHEREFORE, the plaintiffs pray that this Court enter a

judgment:

(a) declaring that defendants’ acts, practices and polli-

cies complained of herein violate rights secured by the Civil

Rights Act of 1866, 42 U.S.C. §1982, and Title VIII of

the 1968 Civil Rights Act, 42 U.S.C. §3601, et seq.;

(b) enjoining the defendants, their agents, employees,

successors, assigns, and those acting in active concert, com-

bination or participation with them, from engaging in poli-

cies and practices which deprive plaintiffs and the class

they represent of rights secured by 42 U.S.C. §§1982 and

3601, et seq., including, but not limited to, a judgment:

App. 35

(i) enjoining defendants from refusing or failing to

show or rent any housing unit owned or managed by the

defendants to any person because of race or color;

(ii) enjoining defendants from steering or channelling

any prospective renter toward or away from any particular

rental unit, complex or neighborhood on account of race or

color;

(iii) enjoining defendants from discriminating against

any person in the terms, conditions, or privileges of renting,

or in the provision of services in connection therewith; and

(iv) enjoining defendants from representing to any per-

son, because of race or color, that any rental unit is not

available for inspection or rental when such unit is in fact

so available;

vised by this Court, to overcome the effect of their past

discriminatory actions, such affirmative action to include,

inter alia:

(i) the soliciting and encouraging of blacks to rent units

in predominantly white communities and whites to rent

such units in predominantly black and integrated com-

munities;

(ii) the adequate advertising in appropriate publications

and circulation of information concerning apartments avail-

able in defendants’ files;

(iii) the adoption of a uniform system of rules, regula-

tions, codes, etc., together with enforcement procedures,

designed to ensure that defendants’ past discriminatory ac-

tions are not repeated or continued, including the adoption

of a policy of hiring personnel in its real estate office with-

out regard to race; and

(iv) the prompt reporting in written form by defendants

of such information as the Court deems necessary to enable

the efficient monitoring of the defendants’ compliance with

App. 36

other parts of the Court’s order and the Fair Housing Laws

of the United States;

(d) awarding to renter plaintiff Paul Allen Coles the

sum of $50,000 in actual damages and $100,000 in punitive

damages for the violation of his rights by these defendants;

(e) awarding to each of the tester plaintiffs Sylvia Cole-

man and R. Kent Willis the sum of $1,000 in actual damages

and $1,000 in punitive damages;

(f) awarding to HOME its expenses of testing and moni-

toring defendants’ practices and its expenses pursuant to

this litigation;

(g) awarding to plaintiffs their costs and reasonable at-

torney fees in this action; and

(h) granting such additional and further relief as the

Court deems just and equitable.

Respectfully submitted,

/s/ JAMES F, STUTTS

JAMES F, STUTTS

McSWEENEY AND STUTTS

Suite 1506, 700 Building

700 East Main Street

Richmond, Virginia 23219

(804) 643-5192

/s/ THEoporE C. HIRT

DANIEL M, SINGER

THEODORE C, HIRT

VANESSA RUIZ

DENNIS J. RILEY

App. 37

FRIED, FRANK, HARRIS, SHRIVER

& KAMPELMAN

600 New Hampshire Avenue,

Suite 1000

Washington, D.C. 20037

(202) 342-3500

App. 38

42 U.S.C. § 1982

§ 1982. Property rights of citizens

All citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by

white citizens thereof to inherit, purchase, lease, sell,

hold, and convey real and personal property.

42 U.S.C. § 3613

§ 3613. Enforcement by the Attorney General; issues

of general public importance; civil action,

a jurisdiction; complaint; preventive

relie

(a) Whenever the Attorney General has reasonable

cause to believe that any person or group of persons is

engaged in a pattern or yer of resistance to the full

enjoyment of any of the rights granted by this sub-

chapter, or that any group of persons has been denied

any of the rights granted by this subchapter and such

denial raises an issue of general public importance, he

may bring a civil action in any appropriate United

States district court by filing with it a complaint settin

forth the facts and requesting such preventive relief,

including an application for a permanent or temporary

injunction, restraining order, or other order against

the person or persons responsible for such pattern or

ractice or denial of rights, as he deems necessary to

insure the full enjoyment of the rights granted by this

subchapter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.