Petition for Writ of Certiorari — Colonial Village, Inc. v. Spann

@ me vers Court, U.S.

FILED

90-201 JUL 31 1990

No.

JOSEPH F. SPANIOL, JR.

en ee

+

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

COLONIAL VILLAGE, INC.,

Petitioner,

'-

GIRARDEAU A. SPANN, the METROPOLITAN WASHINGTON

PLANNING & HOUSING ASSOCIATION, INC., and the

FaiR HOUSING COUNCIL OF GREATER WASHINGTON,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

REUBEN B. RosBeEertson, III

Dow, LOHNES & ALBERTSON

1401 Sixteenth Street, N.W.

Washington, D.C. 20036

Telephone (202) 232-1015

Counsel of Record for Petitioner

a

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

E

QUESTIONS PRESENTED

1. Did the court of appeals correctly construe the Fair

Housing Act as creating a private cause of action based

solely on the fact that none of the approximately ten hu-

man models shown in six prototype newspaper advertise-

ments for the petitioner’s residential condominium

development, which appeared in The Washington Post on

a total of 32 days between January 1, 1985 and April 26,

1986, were identifiable as black persons? If so, does the

Fair Housing Act viclate the First Amendment?

2. May the judicially-created ‘‘continuing violation” ex-

ception be applied to override the period of limitations set

forth in the Fair Housing Act, thereby allowing plaintiffs

to sue on newspaper advertising claims which accrued prior

to the limitations cutoff, where no discrete violation oc-

curred within the statutory period?

3. Consistent with Art. III standing requirements, may

an individual newspaper reader, who allegedly incurred

“indignation” and ‘distress’ as a result of seeing

petitioner’s advertising, be allowed to prosecute independ-

ent claims for damages, injunctive relief and declaratory

relief in federal court, simply because other co-plaintiff

organizations are deemed to have $tanding to litigate their

own distinct claims in the case?

ii

PARTIES

In addition to the parties named in the caption of this

petition, the parties to the consolidated proceedings in the

court of appeals included Mobil Land Development Cor-

poration (““MLDC”’), Marvin J. Gerstin and Marvin Gerstin

Associates, Inc.

All of the stock of petitioner Colonial Village, Inc. is

owned by MLDC, which is a wholly-owned subsidiary of

the Mobil Corporation, a publicly-held corporation.

ill

TABLE OF CONTENTS

Page

IE SUINITEED sxc cnncsavenceecsccvescasccssosssessonsasassa i

EE NS REECE EE ii

II Ss ins ns occ cnsnagnnenensbobansebenonencenssese ili

a © III -. ccccnnscecnssccccesacsecnacecccssoscssnace v

sca cil capndensenetesenentoonenes 1

PUMEMECTION OF THIS COURT .....ccccsccccccccscecscccsnsesess 2

CONSTITUTIONAL AND STATUTORY PROVISIONS .....«.. 2

cr 5

INT Citta cca scn staan beaneencagectbonasebenbediess

B. District Court Proceedings ..................005

C. The Decision of the Court of Appeals ... 12

REASONS FoR GRANTING THE WRIT ................000000 15

I. The Court of Appeals Has Adopted an Illog-

ical and Impermissible Construction of the

Fair Housing Act Which, If Allowed to

Stand, Would Violate the First Amendment

as a Result of Overbreadth and

MII sutehbcsneniseienucassoseussesonsonesassosonsseresecs 15

II. The Decision of the Court of Appeals, Ex-

panding the ‘“‘Continuing Violation’ Excep-

tion to Override the Congressionally-

Mandated Statute of Limitations Even Where

No Discrete Violation of Law Occurred

Within the Applicable Period, Is in Conflict

With Decisions of This Court ..................0. 20

iv

III. By Misapplying Questionable Precedent From

is Court's Arlington Heights Decision and

Ignoring More Recent and Apparently Con-

trolling Authority, The Court of Appeals Im-

eS y Allowed a Party With No Article

= Standing to Remain as a Litigant in the

DD sibaldcssncicsstinsensapanbiiatencitinksldnésdiduuckedsensinteannsons

5 ESR: SESSION RL are OM RS I? Vion ae AE

TABLE OF AUTHORITIES

Cases Page

Allen v. Wright, 468 U.S. 737 (1984) ........eeeeeeees 26

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) .. 9

Banks v. Heun-Norwood, 566 F.2d 1073 (8th Cir.

NIU UP. cxiassnssniciianiectecdtumbinteaddedsencieninaisamocsdiains 26

Bowsher v. Synar, 478 U.S. 714 (1986) ............0000 25,29

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....... 9

Chardon v. Fernandez, 454 U.S. 6 (1987) ............. 22

Delaware State College v. Ricks, 449 U.S. 250

CRIIOD ‘snssuinusicnntddndecsscninisdnadinsanpioeieamaaaamadiaa 21,22

Diamond v. Charles, 476 U.S. 54 (1986) ............... 27

Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029 (D.C.

COP, “RGGI siaencnnnictesccndecsccisnarehatasatsapuompaaacnene 9

FW/PBS, Inc. v. Dallas, 107 L.Ed.2d 603, 110 S.Ct.

SD CIGD svcascosscssnsnrennctmsateatisnniaiaaaniamiaibinas 28

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

0 TEITUE cccccescosstnisgnssctecsasnssninesseniaiaeaineianans 27,28

Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.

FEED cconcsrscccrttiantntiticiinsaaeennae 28

Hailes v. United Air Lines, 464 F.2d 1006 (5th Cir

RTE scccsssnsnastoscasenioiscsctsiacaieaanatuladiaaaaias 26

Havens Realty Corp. v. Coleman, 455 U.S. 363

CREED dctninioninincetnisntiaiepaasmanpedna 12,13,20,21,23,27

Housing Opportunities Made Equal v. The Cincin-

nati Enquirer, Inc., 731 F.Supp. 801 (S.D. Ohio

ay appeal pending, No. 90-3176 (6th

DDD sccccodtansincsstdisasiteninesdausauatieamiaammeaimiaatae 19

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) .. 19

League of Women Voters v. Nassau County Board

of Supervisors, 737 F.2d 155 (2d Cir. 1984),

cert. denied, 469 U.S. 1108 (1985) .................. 28

Table of Authorities Continued

Page

Island Vietnam Moratorium Committee v.

Cahn, 437 F.2d 344 (2d Cir. 1970),affd, 418

Cle THe GING ceistinsnitticensesinsnieenstenibastntneantions 19

Lorance v. AT&T Technologies, Inc., 104 L.Ed.2d

GE CHE eectrnssiniditciiastiestnierninninliiniinssinianimags 13,21,22,23

Lujan v. National Wildlife Federation, 58

U.S.L.Week 5077 (U.S., June 27, 1990) ....... 9,14,28

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir.

STEP ccascnccsnscecnccrnstintsbisitinsiepatnenntemiadaiandibiintiinn 22

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir.

BUD censccensnsnseneninscnnsiclataletianediniaiiasiiilaataiaiiens 13,22,23

NAACP v. Button, 371 U.S. 415 (1963) ................ 19

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 (1973) .......... 16

Sandwiches, Inc. v. Wendy's International, Inc., 822

se 8 o£. fs | eee 27

Saunders v. General Services Administration, 659

F.Supp. 1042 (E.D. Va. 1986) .................00-2008 18

Secretary of Interior v. California, 464 U.S. 312

COED ccccnstessncitnenestnpuntacusansandadinnnaiianinigiiniiadias 25,29

Spann v. Carley Capital Group, 734 F.Supp. 1

CERTDAS. TED sndecctcitintiicistaiambinreanatanintbeidinininiiniinns 18

Twist v. Meese, 854 F.2d 1421 (D.C. Cir. 1988), cert.

denied, 106 L.Ed.2d 612 (1989) ...................... 9

United Air Lines, Inc. v. Evans, 431 U.S. 553

CRT ED cccrsshcesnssrevsersitnaaniniasaaeanaiamanade 21,22

United States v. Alabama, 828 F.2d 1532 (11th Cir.

1987), cert. denied, 101 L.Ed.2d 894 (1988) ... 28

United States v. Hunter, 459 F.2d 205 (4th Cir.),

cert. denied, 409 U.S. 934 (1972) ........0.000... 17,18,19

Valentino v. United States Postal Service, 674 F.2d

2 le: Ye ae ee 23

Va Forge Christian C v. Americans United

or Separation of Church and State, Inc., 454

Fete. Ge CRUD ccccnceeseteineaisinnindinnitadasednnsias 24,26-29

Table of Authorities Continued

Page

Village of Arlington — v. Metropolitan Hous-

ae Development Corporation, 429 U.S. 252

GREED Siversalbincecenneneseseptinsmainnssiniemcen 24,25,28,29

Warth v. Seldin, 422 U.S. 490 (1975) .................. 25-28

Waters v. Thornburgh, 888 F.2d 879 (D.C. Cir

SEED -ssciareinialhiibcinditisiscnaibaheniagitintiaiiitnsdensinniaineanteennnenen 9

Watt v. Energy Action Educational Foundatien, 454

els EE ED - cennnenenenenescnssnensanenieensneincennnsanees 25

Whitmore v. Arkansas, 109 L.Ed.2d 135 (1990) ... 28

Zauderer v. Office of Disciplinary Counsel, 471 U.S.

Be EE caatibleaedete duh ninkdeviersensaciebensteennseiSbiesias 16

Constitutional Provisions

United States Constitution, Art. III ................ 3,12,24-29

United States Constitution, First Amendment ...... passim

Statutes and Regulations

a a eleiteiicttiniriicesincnniincnninisninsiai sieessibialbaieli 2

Be es I ai tiiirticiectcennicnepapnneelaneannieupiieiaeienamialiin 7

IE itertpencnncmetectstnnsvacsenpsanenmannnasstonanesin 7

ee IE cniistcinncshisientocinebenmansssinionemassninents 7

ee I I Tira iinsciccesneneentadniniabaamacneineaas 7

Ns a See aT 1

Civil Rights Act of 1866,

i eee 7

Civil Rights Act of 1964, Title VII,

S.C. $2000e, ef 869. .....c..c.cecescccscscceseseeees 23,26

Ee es I deicetinttintsennsebiteetecccsineicetcitce 26

Fair Housing Act, Title VIII of Civil Rights Act

of 1968,

ee passim

Sec. 804(c), 42 U.S.C. §3604(c) ...............ccce passim

Sec. 812(a), 42 U.S.C. §3612(a) ....................... 2,7,20

Table of Authorities Continued

Page

Sec. 812(c), 42 U.S.C. §3612(c) ....................... 3

Fair Housing Amendments Act of 1988, Pub. L.

100-430,

See. &, 42 U.S.C. GBC) 2....ccccccccccecescceeessess. 3

See. 1Bfa), 102 Stat. 16B6 ...........cccccccccccsccccceee 3

Department of Housing and Urban Development

24 CFR §§109.80 o....cccccccccccssessssecssecssseessneesseee 6

Court Rules

Federal Rules of Civil Procedure,

SITTIII Hisihdhisdiinsadainigibdiimtieennpdeimebhasiatansennbicneibaions 11

Ce a ee Re 27

LER, aaa Se Ne Nee ee 14

I a )

Supreme Court Rules,

SSS ERR Seat aan eR l

U.S. District Court, District of Columbia

I ne caaatiaiis 8,9

Other Authorities

GET sintsnsinsesncessncensssesensscenenionssensansdiiitoansentesedte 24,26

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

COLONIAL VILLAGE, INC,

Petitioner,

Vv.

GIRARDEAU A. SPANN, the METROPOLITAN WASHINGTON

PLANNING “& HOouSsING ASSOCIATION, INC., and the

Fatk Housinc CouNcIL OF GREATER WASHINGTON,

Respondents.

Colonial Village, Inc. petitions for a writ of certiorari

to review a judgment of the United States Court of Appeals

for the District of Columbia Circuit. In accordance with

Rule 29.4(b) of the Supreme Court Rules petitioner notes

that 28 U.S.C. §2403(a) may be applicable, in that the

constitutionality of the Fair Housing Act, as applied by

the court of appeals, is drawn into question, and neither

the United States nor any department, office, agency, of-

ficer or employee thereof is a party. Certification pursuant

to 28 U.S.C. §2403(a) was not made to the Attorney Gen-

eral by the court of appeals.

OPINIONS BELOW

The opinion of the court of appeals, reproduced in the

separately printed appendix at App. A, pages la-2la, is

reported as Spann v. Colonial Village, Inc., 899 F.2d 24.

The opinion issued by the district court on May 22, 1987

is reported under the same caption at 662 F.Supp. 541

and reproduced at App. F, pp. 29a-4la. A subsequent

memorandum of the district court dated October 13, 1988

is reported at 124 F.R.D. 1 and is reproduced at App. H,

pp. 45a-49a.

JURISDICTION OF THIS COURT

The judgment of the court of appeals was entered on

March 13, 1990. A timely petition for rehearing was denied

by the court of appeals on May 3, 1990. (App. E, 27a-

28a). This Court’s oad is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Art. III, sec. 2 of the Constitution provides:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Consti-

tution, the Laws of the United States, and trea-

ties made, or which shall be made, under their

Authority; ...

The First Amendment of the Constitution provides:

Congress shall make no law ... abridging the

freedom of speech, or of the press; ...

Section 804 of the Fair Housing Act, enacted as Title

VIII of the Civil Rights Act of 1968, 42 U.S.C. §3604, as

amended, provides in relevant part as follows:

. [I]t shall be unlawful—

* * *

(c) To make, print, or publish, or cause to be

made, printed, or published any notice, state-

ment, or advertisement, with respect to the sale

or rental of a dwelling that indicates any pref-

erence, limitation, or discrimination based on

race, color, religion, sex, handicap, familial sta-

tus, or national origin, or an intention to make

any such preference, limitation, or discrimination.

Section 812(a) of the Fair Housing Act, effective at the

time the complaint was filed in the district court and then

codified at 42 U.S.C. §3612(a), provided in relevant part

that:

The rights granted by [section 804] may be

enforced by civil actions in appropriate United

States district courts without regard 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 hous-

ing practice occurred. ...

Section 812(c), 42 U.S.C. §3612(c), at that time provided:

The court may grant as relief, as it deems

appropriate, any permanent or temporary injunc-

tion, temporary restraining order, or other order,

and may award to the plaintiff actual damages

and not more than $1,000 punitive damages, to-

gether with court costs and reasonable attorney

fees in the case of a prevailing plaintiff: Provided,

That the said plaintiff in the opinion of the court

is not financially able to assume said attorney’s

fees.

The provisions of section 812 were subsequently amended

by section 8(2) of the Fair Housing Amendments Act of

1988, Pub. L. 100-430, 102 Stat. 1633, and replaced by a

new section 813, now codified at 42 U.S.C. §3613, pro-

viding among other things for a two-year statute of lim-

itations for private civil actions and elimination of the

statutory cap on punitive damages. This statutory revision

became effective on March 12, 1989, 180 days after its

enactment and approval by the President on September

13, 1988. See Pub. L. 100-430, sec. 13(a).

‘HAPPILY EVER AFTER’ BEGAN

IN OUR VILLAGE BY THE CTY.

It’s as close to the story

book life as we ever thought

wed get. A picturesque little

village. Right next door to

D.C. in Rosslyn. A private,

wooded setting jus one

mile from the Key Bridge,

where we can walk to all

the things that make life

enjoyable. The stores.

The restaurants. Even the

Courthouse Metra And

the homes! Quiet and

solid. Beautifully designed

interiors with new baths

and insulated windows.

New walls and floor cover-

ings. New plumbing and

wiring, New kitchens and

appliances. Even a new

heat pump system. Take it

from us. If you want the

real sory on the very best

of condominium living,

you'll find your happy

ending in our Village by

the City. Visit today.

Directions: From TL take

Wilson Bivd. to nght on 2

and follow signs to the sales office

Or from Lee Highway, go nght or.

Veitch Sx, then left on Key Bivd. to

sales office. Open 11°5 daily. excer”

on Wednesdays Phone 276-020¢

Brokers ——————

Weicome 3% ae

Colonial

EQUAL HOUSING Village

OPPORTUNITY qe

YOUR VILLAGE BY THE CITY.

STATEMENT

A. Facts.

Petitioner Colonial Village, Inc. (‘‘Colonial’’) is the owner

and developer of a residential condominium project in Ar-

lington, Virginia. From time to time Colonia] has com-

missioned advertisements for its development to be

prepared by an outside advertising agency and published

in The Washington Post. During 1985, three prototypes for

such ads were used, appearing in that newspaper a total

of 22 times. From January 1 through April 26, 1986, three

similar ads were used and appeared a total of ten times.

Over this sixteen month period, Colonial ads were pub-

lished on the average every 15 days, or roughly twice a

month, normally appearing in the Saturday real estate

section but sometimes in the paper’s Friday editions. After

April 26, 1986, a fourth prototype ad was added for use

in rotation with the other three during the remainder of

that year.

The seven ads used during 1985 and 1986 each featured

a photograph of a young working person or couple in a

social, recreational or commuting setting. Typical of the

1985-1986 advertisements was the prototype reproduced

on the preceding page, which appeared in The Washington

Post on Saturday, April 26, 1986 with the heading:

FOR JULIE AND ME,

‘HAPPILY EVER AFTER’ BEGAN

IN OUR VILLAGE BY THE CITY.

Under the picture of a couple apparently strolling home

from shopping, the text of this ad read as follows:

It’s as close to the story book life as we ever

thought we’d get. A picturesque little village.

Right next door to D.C. in Rosslyn. A private,

wooded setting just one mile from the Key

Bridge, where we can walk to all the things that

make life enjoyable. The stores. The restaurants.

Even the Courthouse Metro. And the homes!

Quiet and solid. Beautifully designed interiors

with new baths and insulated windows. New walls

and floor coverings. New plumbing and wiring.

New kitchens and appliances. Even a new heat

pump system. Take it from us. If you want the

real story on the very best of condominium living,

you'll find your happy ending in our Village by

the City. Visit today.

Also included were directions to the project, its office hours

and telephone number. At the bottom of the ad appeared

the Colonial Village logo, the “EHO” logo reflecting the

developer’s compliance with fair housing laws as suggested

by the U. S. Department of Housing and Urban Devel-

opment (“HUD”), 24 C.F.R. §109.30, and the phrases

“EQUAL HOUSING OPPORTUNITY” and “YOUR VIL-

LAGE BY THE CITY” in bold print.

On April 24, 1986, parallel administrative complaints

against Colonial, its advertising agency and Colonial’s par-

ent corporation were filed with HUD and the District of

Columbia Office of Human Rights (““OHR’’). The complain-

ants were Girardeau Spann, a black resident of Washing-

ton, D.C. who is a professor of constitutional law at

Georgetown University Law Center, and two nonprofit ad-

vocacy groups, the Metropolitan Washington Planning and

Housing Association, Inc., and the Fair Housing Councii

of Greater Washington. Those complaints alleged that the

31 advertisements for Colonial Village that had appeared

in The Washington Post during the preceding sixteen

months violated section 804(c) of the Fair Housing Act by

failing to include any black persons in the photographs.

Neither agency has taken any enforcement action to date

on those 1986 administrative complaints.

B. District Court Proceedings.

Professor Spann and the two advocacy groups filed suit

in the district court, seeking compensatory and punitive

damages as well as injunctive relief and a declaratory judg-

ment against Colonial Village and Mobil Land Development

Corporation (““MLDC’’) on October 23, 1986. Federal sub-

ject matter jurisdiction was invoked in the complaint under

28 U.S.C. §§1331, 1337, 1343(4) [sic], 2201 and 42 U.S.C.

§3612.

The complaint alleged that Colonial violated section

804(c) of the Fair Housing Act because no black human

models were shown in its advertisements for the project,

although white models were depicted. That fact alone was

alleged to indicate an illegal preference based on race.’ As

a result of viewing such ads in The Washington Post,

plaintiff Spann allegedly ‘‘was offended by those ads due

to their clear indication of racial preference’ and, as a

black person, incurred “indignation” and “distress” as a

result. The advertising was also alleged to have interfered

with both plaintiff organizations’ programs to bring about

equal opportunities in housing and with their members’

rights to receive information about housing ‘‘free from

indications of racial preference.’’ MLDC was included as

a defendant on grounds that, as the corporate parent vi

Colonial, it “is responsible for the actions and omissions

of its subsidiary.’’ The complaint demanded a trial by jury

on all issues.”

On February 24, 1987, Colonial moved for summary

judgment on the Fair Housing Act claims. Colonial did not

‘The complaint also asserted that advertising for Colonial Village

violated the Civil Rights Act of 1866, 42 U.S.C. §§1981 and 1982. The

district court’s dismissal of this claim for failure to state a claim upon

which relief could be granted was affirmed by the court of appeals,

and those issues are no longer involved in the case.

2 The suit against Colonial and MLDC was consolidated by the district

court, for purposes of briefing, with a separate, parallel action against

the advertising agency employed by Colonial (which was promptly set-

tled and dismissed) and a third similar action brought by the same

plaintiffs against Marvin J. Gerstin and Marvin Gerstin Associates, Inc.,

who have had no relationship to Colonial or MLDC outside of this

litigation.

dispute that none of the approximately five human models

shown in its three prototype ads used in 1985 and the five

models shown in the three similar ads which ran from

January, 1985 through April, 1986 were identifiable as

black persons, but the motion stressed that plaintiffs were

unable to establish that any violation of section 804(c) had

occurred within the applicable limitations period.

By the affidavit of its vice president Dale R. McGinley

and other evidence filed in support of the motion, including

the ads themselves, the company established that during

the 180 days preceding October 23, 1986, the day on which

the complaint was filed, over 28 percent of Colonial’s ad-

vertisements appearing in The Washington Post featured

a black model; that none of Colonial’s ads have contained

any statement indicating or suggesting a racial preference;

and that every Colonial ad since January 1, 1985 included

the words “EQUAL HOUSING OPPORTUNITY” and the

HUD logotype symbol for nondiscrimination in housing.

The MeGinley affidavit further established the absence of

any discriminatory intent on Colonial’s part at any time.

Its management did rot select models for the advertise-

ments, which was left up to the advertising agency, al-

though it had reviewed and approved the ads before

publication. The Colonial management never directed or

suggested to the agency that a racial preference be in-

dicated or that models be selected based on their race,

which Mr. McGinley swore ‘‘would be absolutely contrary

to our company policies and purposes.”’ (App. I, 50a-52a).

The company in fact remained unaware of any alleged

racial imbalance in the models prior to the administrative

complaints made to HUD and OHR on April 24, 1986.

These points were reflected in a statement of material

facts not in genuine dispute, which Colonial filed with its

summary judgment motion pursuant to Local Rule 108 of

the district court. (App. I, 52a). Colonial’s properly sup-

ported motion shifted the burden to plaintiffs to present

affirmative evidence of ‘‘specific facts’’ showing a ‘“‘genuine

issue for trial’’ under Fed. R. Civ. P. 56(e), sufficient to

allow a “reasonable jury’ to decide in plaintiffs’ favor.*

Significantly, although the complaint had originally al-

leged that Colonial “acted with intent in depicting only

white models in its advertisements,’ the plaintiffs’ sum-

mary judgment opposition papers expressly—and emphat-

ically—disavowed any effort to demonstrate such intent to

establish liability. Thus, for example, in their response to

Colonial’s Local Rule 108 statement of material facts,

plaintiffs declined to challenge the evidence that Colonial

had been unaware of any racial imbalance, was not in-

volved in selection of the models and had never caused

the advertising agency to indicate racial preference in the

ads or to select models based on race.‘ Instead they as-

serted flatly that, ‘‘[t]o establish Colonial Village’s liability

under the Fair Housing Act plaintiffs need not show either

the discriminatory intent or direct supervision of Colonial

Village. ...”’ (App. I, 52a-53a; emphasis added). Under

their view of the law, the mere fact that identifiably black

persons did not appear in Colonial’s series of six news-

paper ads, which ran for 16 months in 1985 and early

1986, was alone sufficient to subject Colonia! to liability

for damages and injunctive relief, even if Colonial had no

* Waters v. Thornburgh, 888 F.2d 870, 873 (D.C. Cir. 1989), citing

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Lujan

v. National Wildlife Federation, 58 U.S.L.Week 5077, 5082 (U.S., June

27, 1990) (general averments in affidavits opposing summary judgment

fail to meet specificity requirement of Rule 56(e)j; Celoter Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Frito-Lay, Inc. v. Willoughby, 863

F.2d 1029 (D.C. Cir. 1988).

‘Under the loca] district court rule, factual assertions contained in

the movant’s statement of undisputed facts supporting a motion for

summary judgment may be taken as admitted if not specifically con-

troverted in a statement of genuine issues filed by the opposing party.

U.S. District Court, District of Columbia, Rule 108(h); see Twrst v.

Meese, 854 F.2d 1421, 1423-25 (D.C. Cir. 1988), cert. denied, 106 L.Ed.2d

612 (1989).

10

part in selecting the models and lacked any discriminatory

purpose.®

The district court granted summary judgment in favor

of Colonial and also granted the Gerstin defendants’ par-

allel motion for summary judgment on the claims under

section 804(c) of the Fair Housing Act. (App. G, 43a).

Focusing on the period commencing on April 26, 1986, the

180th day preceding the filing of the complaint, consistent

with the 180-day limitations provision then contained in

the Fair Housing Act, the district court found that over

28 percent of the Colonial Village ads appearing in The

Washington Post from that day until the complaint was

filed featured a black model. (App. F, 32a, 39a). Further-

more, the district court found:

None of Colonial’s ads, at any time, has con-

tained language indicating or suggesting a racial

preference. To the contrary; all of its ads in The

Post have included the phrase ‘Equal Housing

Opportunity” as well as a related logo.

Id., 32a (emphasis added). The district court declined to

construe section 804(c) as requiring the use in advertising

of models of a particular race or sex in particular pro-

portions, holding that this would lead to impracticable and

absurd results that Congress could not possibly have in-

tended and would have a “chilling effect ... on advertis-

ers’ ability and desire to advertise, implicating First

Amendment concerns.” (App. F, 37a). In light of these

concerns, it held, an element of discriminatory intent had

to be proved in a section 804(c) action, either by direct

evidence or by inference to be drawn from extrinsic or

historical evidence:

* Plaintiffs also filed their own motion for judgment on the pleadings

or for summary judgment, based solely on the absence of black models

in Colonial’s ads that appeared in The Washington Post during a sixteen

month period from January 1, 1985 through April 26, 1986, again

disclaiming any attempted proof of discriminatory intent.

ll

When the Congress prohibited advertisements

that indicate a discriminatory preference, it could

only have intended that the preference be either

obvious from the ad itself ... or that such pref-

erence be ascertained through extrinsic circum-

stances. ... Usually the proof of such extrinsic

circumstances will implicate an element of dis-

criminatory intent. ... [A]bsent a showing of in-

tent to indicate a racial preference or of other

extrinsic circumstances revelatory of a racial

preference, real estate advertisements do not vi-

olate the Fair Housing Act merely because models

of a particular race are not used in one ad or a

series of ads.

Id. (emphasis added).

During the statutory limitations period, the district court

ruled, the defendants did not possess the requisite dis-

criminatory intent, and “indeed, neither defendant’s ads

or ad campaigns indicated a racially discriminatory pref-

erence during that period under any standard.” (App. F,

39a). This conclusion was buttressed by findings that the

percentage of Colonial ads featuring black models actually

exceeded the proportion of black persons in the Washing-

ton metropolitan area population and that Colonial in April,

1986 had adopted a written policy specifically requiring

nondiscrimination in the selection of models for its adver-

tising. ‘In brief,’ the district court held, ‘‘there was no

conceivable violation by either defendant during any period

not barred by the statute of limitations.” (App. F, 39a).

The plaintiffs immediately noted an appeal, which was

dismissed by the court of appeals as premature. (App. B,

22a-23a). Subsequently the district court entered an order

on October 13, 1988, denying the motion of defendant

MLDC to dismiss the complaint against it for failure to

make timely service of process under Fed. R. Civ. P. 4(j)

or to quash service of process. (App. H, 49a). Plaintiffs

12

thereupon filed a new notice of appeal in their action

against Colonial on November 10, 1988, which was dock-

eted in the court of appeals as No. 88-7257 and consoli-

dated there with plaintiffs’ appeal in the Gerstin case, D.

C. Cir. No. 88-7260.

C. The Decision of the Court of Appeals.

The court of appeals reversed the district court’s award

of summary judgment on the claims under section 804(c).

First addressing the issue of standing, the court held that

the two plaintiff organizations had alleged interference and

detriments to their programmatic interests sufficient to

meet the injury-in-fact, causation and redressability tests

for Art. III standing under Havens Realty Corp. v. Cole-

man, 455 U.S. 363 (1982). (App. A, 4a-12a). No prudential

standing analysis was deemed necessary, again under au-

thority of Havens. (Jd). The appeals panel declined to de-

cide whether the individual plaintiff had standing to litigate

his personal claims for compensatory and punitive damages

and other relief or whether the organizations possessed

standing to pursue claims as representatives of their mem-

bers, holding that these determinations were not necessary

in light of its conclusion that the organizations had stand-

ing to proceed on their own behalf. (App. A, 9a n.2).

Turn‘ng to the merits, the court of appeals agreed that

summary judgment would have been proper if the 180-day

pre-complaint period were the appropriate time frame for

analysis. (App. A, 20a). But, the court stated, the com-

plaint against Colonial focused on the company’s advertis-

ing from January, 1985 to April, 1986. Throughout that

sixteen month period, six Colonial Village ads appeared in

The Washington Post a total of 32 times; each of those

six ads featured one or two human models, none of whom

was identifiably black. The last of what plaintiffs alleged

was the “long stream of all white ads’’ during this period

appeared on April 26, 1986, exactly 180 days before the

complaint was filed. Based on this, the district court was

13

reversed on grounds that it erroneously failed to consider

the prelimitations period advertising. According to the

court of appeals’ decision, the appearance of the final so-

called “‘all white” ad for Colonial on April 26, 1986—the

last possible day within the limitations period—brought into

play the continuing violation doctrine described in Havens

Realty Corp. v. Coleman, 455 U.S. at 380-381, thereby

overriding the statutory 180-day limit and opening up all

of the company’s advertising since January 1985 for at-

tack. (App. A, 19a-20a).

The appellate court found it “highly unlikely” that any

one of the Colonial ads, standing alone, would violate sec-

tion 804(c)—even without an identifiably black model hav-

ing been included. (App. A, 19a n.6). The case is thus

distinguished in a critical respect from the situation in

Havens, where the specific conduct relied on to invoke the

continuing violation doctrine was itself a clear violation of

the Fair Housing Act.

Colonial argued in the appeal that a discrete violation

of law had to have occurred within the limitations period

to bring the continuing violation doctrine into play, based

on Lorance v. AT&T Technologies, Inc., 104 L.Ed.2d 961

(1989), but the court of appeals did not address this point

or even mention Lorance. Instead it cited its own pre-

Lorance decision in McKenzie v. Sawyer, 684 F.2d 62 (D.C.

Cir. 1982), for the proposition that a “defendant’s conduct

before the actionable period” must be examined “to show

the violative character of defendant’s conduct in that pe-

riod,”’ holding further that the district court erred by fail-

ing to make such an inquiry. (App. A, 19a n.6). The

decision, however, did not explain why such prelimitations

conduct would have been relevant in this case, where the

undisputed evidence submitted by Colonial established the

racially neutral character of each ad on its own as well

as the complete absence of any discriminatory intent or

even awareness of a racial imbalance in the selection of

advertising models at any time, within or without the lim-

14

itations period; and the plaintiffs submitted no conduct

evidence beyond the bare fact that identifiably black models

were not included in the six prototype ads that appeared

during the prelimitations period.

Moreover, the evidence of violation relied on by plaintiffs

was merely the appearance of the last challenged ad in

the newspaper on the 180th day prior to their complaint,

which fell well short of proof that Colonial took any action

to violate the law within the limitations period. It has

never been suggested that the company could have con-

tacted The Washington Post on the morning of April 26,

1986 and made arrangements for its ad to appear that

very day. Obviously those arrangements had to have been

concluded at some point before the day on which the ad

actually came out. The court of appeals ignored this short-

fall in plaintiffs’ evidence and did not explain how the

Havens doctrine could apply at all under these facts.

As in the district court, the plaintiffs continued in the

court of appeals to adhere to their position that no proof

of discriminatory intent ever need be shown in an action

under section 804(c). Unlike the district court, the court

of appeals seems to have agreed. Although this issue was

never addressed squarely in its opinion, the most reason-

able interpretation of the court of appeals’ decision in light

of the record is that preferential or discriminatory intent

was deemed to be not a necessary element of a section

804(c) case against a real estate advertiser. (See discussion

at App. A, 10). Had the court of appeals agreed with the

district court on this point, it would have had to affirm

the summary judgment under Rule 56 because of the

plaintiffs’ failure to adduce any evidence of unlawful in-

tent, when that issue was squarely raised by Colonial’s

summary judgment motion. Lujan v. National Wildlife

Federation, supra, 58 U.S.L.Week 5077, 5080-81.

Finally, while the district court had noted that judicial

construction of section 804(c)’s constraints on advertising

15

necessarily implicates First Amendment concerns, the court

of appeals ignored that aspect of the case. Its reversal

and remand in effect sent the case back for a jury trial

based on nothing more than the appearance, over a sixteen

month period, of a handful of ads in which pictures of

black models happened not to be included. With no evi-

dence of discriminatory intent being required, Colonial’s

facially-neutral ads may now subject it to liability if a jury

in the District of Columbia finds that they can be read as

racially preferential or discriminatory. Despite the ob-

viously chilling effect this construction is likely to have on

advertisers, the court of appeals never mentioned the First

Amendment at all.

REASONS FOR GRANTING THE WRIT

I. The Court of Appeals Has Adopted an Illogical and

Impermissible Construction of the Fair Housing Act

Which, If Allowed to Stand, Would Violate the First

Amendment as a Result of Overbreadth and Vague-

ness.

The Fair Housing Act, Title VIII of the Civil Rights

Act of 1968, 42 U.S.C. §§3601 et seg., stands among the

most important social legislation ever enacted by Congress.

It not only outlaws racial discrimination in housing

throughout the nation but even prohibits statements from

being made which indicate racial preferences or discrimi-

nation in the sale or rental of housing, creating an im-

portant area of potential conflict with First Amendment

interests. This case calls upon the Court to resolve such

a conflict or to avoid it through proper statutory inter-

pretation.

By its terms the Fair Housing Act does not address the

selection of human models shown in real estate advertise-

ments, nor does it create any express requirements relat-

ing to the models’ racial and other minority characteristics.

All the statute says is that an advertisement may not

16

indicate “‘any preference, limitation, or discrimination based

on race, color, religion, sex, handicap, familial status, or

national origin, or an intention to make any such pref-

erence, limitation, or discrimination.”’ Sec. 804(c), 42 U.S.C.

§3604(c).

The decision of the court of appeals interprets this pro-

vision so broadly that a perceived racial imbalance among

the human models appearing in an advertisement or ad-

vertising campaign may, without more, be a basis for the

imposition of liability. All that must be shown to establish

a violation of section 804(c), according to its decision, is

that the “natura! interpretation” of a developer’s adver-

tising to a ‘‘reasonable reader’’ is to indicate a racial pref-

erence. (App. A, 10a.). The D.C. Circuit leaves it up to

the jury’s discretion in each case to decide whether or not

an advertiser has committed a violation by having too

many persons of one race and too few of another shown

in its advertising. The ruling provides no standards for

determining when a violation may occur, and the sanctions

potentially available upon a finding of violation are severe.

This construction of the statute raises serious First

Amendment issues affecting advertisers, as well as news-

papers and other advertising media, that could and should

have been avoided.

Each of the 1985 and 1986 Colonial ads, standing alone,

was facially neutral and nondiscriminatory. Each one alone

was a nondeceptive, proper and lawful form of speech

protected by the First Amendment.* But when the pho-

6 See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

In that case the Court specifically focused on the nonverbal and pictorial

aspects of advertising, holding that ‘‘commercial illustrations are en-

titled to First Amendment protections afforded verbal commercial

speech. ...’’ Jd. at 647. Unlike the situation in Pittsburgh Press Co. v.

Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), Co-

lonial’s ads cannot logically be viewed as soliciting “‘illegal’’ commercial

activity, because the element of discriminatory intent found to have

been present in Pittsburgh Press is absent here.

17

tographs appearing in these separate ads were considered

in the aggregate, the court of appeals found an actionable

civil rights claim sufficient to go vo the jury.

In short, the holding means that lawful and protected

speech may become illegal merely as a result of its repe-

tition. Congress certainly did not have this absurd result

in mind when it enacted the Fair Housing Act in 1968.

In United States v. Hunter, 459 F.2d 205 (4th Cir.), cert.

denied, 409 U.S. 934 (1972), the Fourth Circuit first ad-

dressed the complex interplay between the restrictions on

advertising imposed under the Fair Housing Act and the

First Amendment. Hunter was an action brought by the

Justice Department against a newspaper to enjoin its pub-

lication of classified ads for rental housing in a ‘‘white

home.” Imposing a duty on the publisher to reject ads

that violate the act was held not an unconstitutional bur-

den because of the obvious intent element that is integral

to the underlying violation:

Finally, a newspaper publisher can easily dis-

tinguish between permissible and impermissible

advertisements in discharging his duty to reject

those that violate §3604(c). ... [A] publisher can

readily determine from the face of an advertise-

ment whether it is intended to express a dis-

criminatory preference. However the language of

the advertisement is couched, the purpose of an

advertiser who wishes to publish an advertise-

ment in violation of the Act is to communicate

his intent to discriminate and a newspaper pub-

lisher can divine this intent as well as any of his

readers.

459 F.2d at 213. In affirming the trial court’s finding of

violation, the Hunter court held that ‘“‘the indication of a

racial limitation is precisely what the [advertiser] intended

when he used the words ‘white home’.”’ Jd., 214. The D.C.

18

Circuit’s decision appears to conflict with the decision of

the Fourth Circuit in Hunter by disregarding the necessity

for proof of the defendant’s discriminatory intent.’

The threat of litigation and potential liability arising

under the court of appeals’ construction of section 804(c)

would be severely intimidating to all but the most daunt-

less advertisers. Rather than attempt to determine the

relevant market within which its ads will circulate and the

respective proportions of various minorities in that market

area to insure that models of each identifiable minority

are fairly represented in its ads, most advertisers will sim-

ply avoid using human models at all lest they be attacked

in court. Creative work will inevitably be stifled by the

lack of any standards providing guidance as to what a jury

may later find racially preferential or prejudicial; one can

imagine liability being imposed for otherwise neutral ads

featuring depictions of George Washington, Thomas Jef-

ferson or other “all white’’ founding fathers, or for not

including enough hispanics, orientals or Sikhs.

’ The decision below cites Saunders v. General Services Administra-

tion, 659 F.Supp. 1042, 1058 (E.D. Va 1986), in support of its view

that the Fair Housing Act is violated if a ‘‘reasonable reader’ [sic; the

term used in original text was ‘‘ordinary reader’’} finds the defendant's

ads to indicate racial preference. without any showing of intent. How-

ever, the suggestion in Saunders that intent is unnecessary is merely

dictum, since the district court in that case specifically found that the

advertiser “‘intended to indicate preferences for certain types of ten-

ants” and directed that black models not be depicted in the develop-

ment’s swimming pool.

*The respondents and others working in concert with them have

already created a profitable cottage industry of suing real estate de-

velopers, advertising agencies and newspapers under section 804(c). See,

e.g., Spann v. Carley Capital Group, 734 F.Supp. 1, 4-9 (D.D.C. 1989)

(consent order providing for $325,000 payment by developers and ad-

vertising agencies to plaintiff group).

19

The point here is not that such liability will necessarily

be imposed, but rather that the open-ended threat of such

liability will have a deterrent and chilling effect on ad-

vertisers who have no discriminatory purpose whatever.

Long Island Vietnam Moratorium Committee v. Cahn, 437

F.2d 344, 350 (2d Cir. 1970), affd, 418 U.S. 906 (1974)

(where statutory proscription is vague, “a layman might

refrain from conduct that is protected by the First Amend-

ment for fear of coming too close to the line’). But if the

court of appeals’ statutory construction was correct, and

liability arises when a jury determines, after the fact, that

newspaper advertising was illegal solely because it could

convey an improper message to a “reasonable reader,”

then the lack of comprehensible and explicit standards

should render the act’s advertising restrictions void for

vagueness and overbreadth. Hynes v. Mayor of Oradell,

425 U.S. 610, 620 (1976) (vagueness test ‘“‘applies with

particular force in review of laws dealing with speech’’);

NAACP v. Button, 371 U.S. 415, 483 (1963) (‘‘Because

First Amendment freedoms need breathing space to sur-

vive, government may regulate in the area only with nar-

row specificity.’’).

Colonial submits that the statutory construction applied

by the district court in this case (and earlier by the Fourth

Circuit in United States v. Hunter), which accommodates

the First Amendment concerns, is the better approach,

and the construction adopted by the court of appeals is

seriously flawed. Under the district court’s view, a vio-

lation cannot be found without some proof of discrimina-

tory intent, either obvious on the face of the advertising

itself (e.g., ‘“white home’’) or fairly inferable from extrinsic

circumstances.® Accord, Housing Opportunities Made Equal

* This assumes that aggregation of advertisements that appear over

an extended period is permissible under section 804(c). A narrower but

entirely plausible interpretation, based on the precise wording of the

statute which covers only the singular publication of ‘‘any notice, state-

20

v. The Cincinnati Enquirer, Inc., 731 F.Supp. 801, 804

(S.D. Ohio 1990), appeal pending, No. 90-3176 (6th Cir.).

Because of the enormous significance of this issue for en-

forcement of the Fair Housing Act as to thousands of

advertisers, advertising agencies and newspapers through-

out the country and the potentially chilling impact that

the court of appeals’ ruling has on First Amendment in-

terests, the Court should take this opportunity to resolve

the matter.

II. The Decision of the Court of Appeals, Expanding

the ‘“‘Continuing Violation’? Exception to Override

the Congressionally-Mandated Statute of Limitations

Even Where No Discrete Violation of Law Occurred

Within the Applicable Period, Is in Conflict With

Decisions of This Court.

The decision of the panel below is based on a novel and

unduly expansive interpretation of the “continuing viola-

tion’ doctrine, which was applied by the court of appeals

to overcome the 180-day period of limitations set forth in

42 U.S.C. § 3612(a). In applying the continuing violation

exception from the statutory time bar, the court of appeals

relied on the articulation of that concept for purposes of

the Fair Housing Act in Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982). However, Havens is significantly dis-

tinct from this case and does not support the appeals court

ruling. The sole basis for invoking the doctrine against

Colonial was an advertisement which appeared in The

Washington Post on Saturday, April 26, 1986—exactly 180

days prior to the filing of the complaint on October 24,

1986. Plaintiffs asserted the April 26 ad was part of a

ment, or advertisement’’, would not permit cumulative evaluation of a

series of ads in the first place. Supporting this construction is the point

that Congress could have added a phrase such as “‘or any series of

advertisements” to this provision, if it had intended an aggregation

approach.

21

pattern of racially preferential advertising. Standing alone,

however, the April 26 ad (p.4, supra) is inoffensive and

racially neutral. The situation is therefore entirely differ-

ent from Havens, where ‘‘the last asserted occurrence’”’ of

the alleged pattern of violations was itself an overt act of

illegal discrimination. (See App. A, 19a n.6, acknowledging

this critical distinction.) The decision of the court of appeals

thus expands the doctrine well beyond what was developed

and approved in Havens

With its expansive application of the continuing violation

theory to overcome the bar of limitations, the court of

appeals’ decision conflicts with a series of cases in which

this Court has articulated the limits and conditions of using

that concept to revive discrimination claims otherwise fo-

reclosed by applicable statutes of limitations. Lorance v.

AT&T Technologies, Inc., 104 L.Ed.2d 961 (1989); Dela-

ware State College v. Ricks, 449 U.S. 250 (1980); United

Air Lines, Inc. v. Evans, 431 U.S. 553 (1977). Although

an ad for Colonial picturing a white couple did appear in

the newspaper on the 180th day before the complaint, that

was simply the automatic consequence and effect of cam-

paign planning and media placement decisions and ar-

rangements that necessarily occurred prior to that date;

it would obviously be impossible for the defendant to ar-

range on a Saturday morning for a large display ad to

appear in the newspaper that same morning. Whatever

action the company took—whether legal or illegal under

the Fair Housing Act—was over and done with by the

time the April 26 ad was printed. The case thus should

be controlled by Lorance and earlier Supreme Court de-

cisions, which refused to apply continuing violation excep-

tions to revive statutory civil rights claims otherwise barred

by limitations.

In Lorance v. AT&T Technologies, Inc., the plaintiffs

had been subjected to alleged discriminatory modification

of their employer’s seniority system but failed to com-

mence legal action in a timely manner. 104 L.Ed.2d 961,

22

969. As a result of the later enforcement of the seniority

plan, which itself was facially neutral, the plaintiffs suf-

fered competitive detriments in their employment within

the statutory limitations period. They argued that the con-

tinuing violation concept should allow them to proceed,

because the facially nondiscriminatory seniority system had

continuing adverse effects arising from its historically dis-

criminatory genesis. The Court rejected this argument, em-

phasizing the critical difference between the time of the

discriminatory acts versus the time when the consequences

of those acts became ‘“‘most painful.’’ Jd., 971-72. Likewise

in Delaware State College v. Ricks, the Court emphasized

again that the critical issue is whether a violation occurred

within the limitations period, as distinct from the appear-

ance or occurrence of one or more effects of a previous

discrimination; the focus must be “upon the time of the

discriminatory acts, not upon the time at which the con-

sequences of the acts become most painful.’’ 449 U.S. at

258 (citations omitted); accord, Chardon v. Fernandez, 454

U.S. 6, 9 (1987). And in United Air Lines v. Evans it was

held that, while the employer’s seniority system did have

a continuing impact on the plaintiff's compensation, ‘‘the

critical question is whether any present violation exists.”

431 U.S. at 558 (emphasis in original). Even though her

employer’s policies gave continuing effect to a past act of

discrimination, the plaintiff's claim based on the original

discriminatory termination was barred, and that act was

held to have “‘no present legal consequences.”’ Jd.

The import of these decisions is clear: time-barred dis-

crimination claims do not revive simply because conse-

quences of previous bad acts come to light or are felt

within the limitations period. There must be at least one

new incident of overt and palpable discrimination occurring

within the applicable period in order to invoke the contin-

uing violation doctrine.’° Malhotra v. Cotter & Co., 885

© McKenzte v. Sawyer, supra, cited by the court of appeals to support

23

F.2d 1305, 1310 (7th Cir. 1989). That is consistent with

Havens, where a discrete violation within the 180-day sta-

tutory period was the basis for reopening barred claims.

~ There is no evidence whatever that any act of discrim-

ination was committed by Colonial within 180 days before

the complaint was filed. The plaintiffs’ continuing violation

claim was based on a single advertisement (reproduced at

page 4, supra), which appeared in the paper on the morn-

ing of the 180th day. It is clear that the April 26, 1986

ad did not itself violate the Fair Housing Act: the district

court so held, and its ruling on that point was not dis-

turbed by the court of appeals. (App. F, 39a; App. A, 19a

n.6). It was only by coupling this facially neutral ad with

previous publications of the same and similar ads that the

plaintiffs and the court of appeals professed to find a

theoretical violation of the Fair Housing Act. That ap-

proach cannot be reconciled with the continuing violation

rulings of this Court, especially since any alleged illegal

conduct by Colonial necessarily occurred some time before

the day on which the subject advertisement was actually

printed in The Washington Post.

application of the continuing violation doctrine even where ‘‘no single

act of the defendant would likely have violated Title VII" (App. A, p.

19a n.6), holds only that plaintiffs ‘‘need not show that the entire

violation occurred within the actionable period’ and there must be ‘‘a

series of related acts, one or more of which falls within the limitations

period, or the maintenance of a discriminatory system both before and

during the [limitations] period’’. 684 F.2d at 72, quoting Valentino v.

United States Postal Service, 674 F.2d 56 (D.C. Cir. 1982) (emphasis

added). While the McKenzie opinion is somewhat opaque, the court does

not appear to have held in that case that no violation need have oc-

curred within the limitations period. It stated merely that prelimitations

statistical evidence “‘can be used as indicative of [defendant’s] practices

continuing within the actionable period under Title VII"’, 684 F.2d at

73; the violative conduct at issue there included continued hiring and

promotion actions affected by the employer's discriminatory animus.

Id., 70. However, if the court of appeals was correct in its description

of the McKenzie holding on proof of a continuing violation, that case

would appear to be of questionable validity after Lorance.

24

The only thing that actually happened within the limi-

tations period was simply the consequence of pre-iimita-

tions period conduct. This Court should clarify that the

Fair Housing Act’s statute of limitations is not displaced

by the continuing violation theory in that circumstance.

III. By Misapplying Questionable Precedent From This

Court’s Arlington Heights Decision and Ignoring

More Recent and Apparently Controlling Authority,

The Court of Appeals Improperly Allowed a Party

With No Article III Standing to Remain as a Lit-

igant in the Case.

During the past three decades, few issues of Constitu-

tional law have proved more troublesome and complex than

Art. III standing. Spann, Expository Justice, 131

U.Pa.L.Rev. 585, 618-27 (1983). This case presents an op-

portunity for the Court to eliminate confusion stemming

from an apparent discrepancy between a footnote in the

case of Village of Arlington Heights v. Metropolitan Hous-

ing Development Corporation, 429 U.S. 252, 264 n.9 (1977),

where individual and corporate plaintiffs were allowed to

continue as parties in federal court litigation without sep-

arate evaluation of their standing, and the principle that

constitutional standing requirements must be separately

applied to each litigant seeking relief.

The court of appeals’ decision holds that, because the

two plaintiff organizations were found to have alleged in-

jury sufficient to support their own standing, evaluation

of the standing of the one individual plaintiff was not

necessary. (App. A, 9a n.2). This ruling, allowing the in-

dividual piaintiff to stay on as a party in the litigation

despite his manifest lack of any distinct and palpable in-

jury, appears to conflict with the decision in Valley Forge

Christian College v. Americans United for Separation of

Church and State. Inc., 454 U.S. 464 (1982), and other

standing decisions.

25

The lower court’s reliance on footnote 9 in the Arlington

Heights case to support its holding that the individual

plaintiff's standing could properly be finessed because the

other plaintiffs have standing, while superficially plausible,

cannot withstand analysis. Arlington Heights is distinguish-

able on its facts, since it involved only claims for decla-

ratory and injunctive relief asserted jointly on behalf of

three individual plaintiffs and a real estate development

corporation, but not individual claims for punitive or com-

pensatory damages. 429 U.S. at 256-58. This Court has

previously held that, for standing purposes, suits for dam-

ages must be viewed differently from those seeking only

declaratory or equitable relief. Warth v. Seldin, 422 U.S.

490, 515-516 (1975); ef. Secretary of Interior v. California,

464 U.S. 312, 319 n.3 (1984), holding that certain plaintiffs’

standing need not be addressed, since the State of Cali-

fornia had standing to seek declaratory and injunctive re-

lief against proposed federal action,and the position of the

other plaintiffs ‘“‘was identical to the State’s’’; Bowsher v.

Synar, 478 U.S. 714, 721 (1986) (unnecessary to consider

standing of Congressional plaintiffs and union, where one

plaintiff clearly had standing to sue for declaratory relief);

Watt v. Energy Action Educational Foundation, 454 U.S.

151, 160 (1981) (declaratory and injunctive relief sought).

In contrast to Arlington Heights, the individual plaintiff

in this case is not a mere tagalong. He asserts independent

claims, in his own name and behalf, for compensatory and

punitive damages as well as other relief against the

defendants. Yet the only basis for standing alleged by this

plaintiff is that he was ‘‘offended’’ by the real estate ads

that he saw in The Washington Post and ‘‘incurred indig-

nation’ and “distress” as a result. (App. A, 9 n.2). He

never applied to purchase or rent a unit in Colonial Village,

has not had contact of any kind with the developer and,

as a long time resident of Washington, D.C., does not

claim to live in or near the neighborhood in which the

project is located in Virginia.

26

It is settled that “‘psychological consequences presum-

ably produced by observation of conduct with which one

disagrees ... is not an injury sufficient to confer standing

under Art. III.”’ Valley Forge, 454 U.S. at 485. Even “‘stig-

matic injury” is insufficient, unless the plaintiff has been

“personally subject to discriminatory treatment”’ regarding

some concrete interest. Allen v. Wright, 468 U.S. 737, 757

n.22 (1984). Being angered or upset by what one sees in

a newspaper, absent any kind of defamation or discrimi-

nation directed personally against the plaintiff, is simply

not enough for Constitutional standing.’ See Spann, Ex-

pository Justice, supra, at 624-25 and n.176.

This Court in Valley Forge underscored that parties who

lack Article III standing “‘may not litigate as suitors in

the courts of the United States." 454 U.S. at 475-76 (foot-

note omitted). In Warth v. Seldin, supra, 422 U.S. at 498,

the Court earlier demonstrated that standing must be eval-

uated for each party and each particular issue, stating

that, ‘‘[iJn essence, the question of standing is whether the

litigant is entitled to have the court decide the merits of

the dispute or of particular issues.” This determination

always depends on whether a particular plaintiff has al-

leged a sufficient basis ‘‘to warrant his invocation of fed-

eral court jurisdiction and to justify exercise of the court’s

‘ Cases under Title VII of the 1964 Civil Rights Act, which was the

mode! for Title VIII and deals with discriminatory advertising for em-

ployment in terms almost identical to those used in section 804(c) for

real estate advertising, see 42 U.S.C. §2000e-3(b), have come to the

same conclusion. Banks v. Heun-Norwood, 566 F.2d 1073 (8th Cir. 1977),

Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972) (“a

mere casual reader” of discriminatory advertising prohibited by Title

VII lacks statutory standing; plaintiff ‘“‘must be able to demonstrate

that he has a real, present interest in the type of employment adver-

tised’’ and “that he was effectively deterred by the improper ad from

applying for such employment’’). The court of appeals was itself openly

and properly skeptical that Congress would have intended the Fair

Housing Act to afford relief to such a plaintiff, even assuming the

Constitution would allow it. (App. A, 9a n.2).

———————————

27

remedial powers on his behalf.” 422 U.S. at 498-499 (em-

phasis in original text; citations omitted). Neither Valley

Forge nor Warth involved the precise issue raised here,

but the strength of the Court’s statements as to the Con-

stitutional incapacity of plaintiffs who lack standing to lit-

igate in federal courts leaves no room for an implied

piggyback exception based on some other plaintiff's stand-

ing."

In Havens Realty Corporation v. Coleman, supra, 455

U.S. at 374-75, standing was similarly evaluated on a party-

by-party, issue-by-issue basis; those found inadequate for

Art. III purposes, such as the claim asserted by a “‘tester”’

plaintiff under the Fair Housing Act who was given only

accurate information regarding the availability of rental

housing, were dismissed from the case." Likewise in Glad-

“ The related issue of whether a party who has no Art. III standing

may be permitted to intervene and participate as a party in litigation

before the district court under Fed.R.Civ.P. 24(a¥2), in alignment with

another qualified party, was expressly reserved in Diamond v. Charles,

476 U.S. 54, 68-69 (1986). See also Sandwiches, Inc. v. Wendy's Inter-

national, Inc., 822 F.2d 707, 710 (7th Cir. 1987), discussing the effect

of consolidation on whether Art. III standing analysis is required as

to all plaintiffs, another issue potentially impacted but not raised di-

rectly by this case.

" Citing Havens, 455 U.S. at 377-78, the court of appeals asserted

that it “could not resolve’ the individual plaintiff's standing without

a remand permitting him to amend the complaint or to supplement the

record in the district court. (App. A, 9 n.2). This exemplifies the panel's

overall confusion on standing requirements. While Havens did allow

such supplementary pleading and proof on remand as to the plaintiffs’

standing, that occurred in the context of an ambiguous complaint and

emerging doctrine regarding “neighborhood” standing. Accord, Glad-

stone, Realtors v. Village of Bellwood, 441 U.S. 91, 112-13 n.25 (1979).

Here the complaint is not ambiguous, and the individual plaintiff, a

District of Columbia resident, has not asserted neighborhood injury as

entitling him to sue a Northern Virginia developer over its newspaper

advertising. This Court has frequently dismissed parties and claims

outright for want of standing without remands for further elaboration,

and the court of appeals was not precluded from doing so here, based

28

stone, Realtors v. Village of Bellwood, 441 U.S. 91, 112-

13 n.25 (1979), two plaintiffs who had inadequately alleged

a basis for standing were dismissed from the case, while

other plaintiffs who made sufficient allegations were al-

lowed to stay in. See aiso FW/PBS, Inc. v. Dallas, 107

L.Ed.2d 603, 621-25 (1990) (plaintiffs held to have standing

to assert certain claims but not others); United States v.

Alabama, 828 F.2d 1532, (11th Cir. 1987), cert. denied,

sub nom. Board of Trustees of Alabama State University

v. Auburn University, 101 L.Ed.2d 894 (1988) (entities

precluded from asserting claims for lack of standing, while

other parties had standing to proceed for themselves and

as class representatives); League of Women Voters v. Nas-

sau County Board of Supervisors, 737 F.2d 155 (2d Cir.

1984), cert. denied, sub nom. Schmertz v. Nassau County

Board of Supervisors, 469 U.S. 1108 (1985) (individual and

organizational plaintiffs dismissed for lack of standing de-

Spite presence of other plaintiffs with standing); Gonzales

v. City of Peoria, 722 F.2d 468, 481 (9th Cir. 1983) (eight

plaintiffs dismissed for lack of standing to seek equitable

relief from alleged constitutional violations, while three

others with standing allowed to proceed).

The court of appeals’ decision permitting the individual

plaintiff to remain as a party and assert his private claims

for damages cannot be reconciled with the statements of

this Court in Valley Forge, Warth and other standing cases.

On the other hand this Court has itself been the source

of confusion, arising from the Arlington Heights footnote

as well as similar rulings in declaratory relief and injunc-

on the patently inadequate standing allegations in the complaint. See

Lujan v. National Wildlife Federation, supra, 58 - S.L. Week at 5083.

84 (belated submissions to bolster inadequate allegations and affidavits

on standing need not be considered in summary ju@gment proceedings):

Warth v. Seldin, supra, 422 U.S. at 508, 518 (plaintiffs threshold

responsibility is “clearly to allege facts demonstrating that he is a

proper party to invoke... exercise of the court's remedial powers’’),

accord, Whitmore v. Arkansas, 109 L.Ed.2d 135, 145 (1990); FW/PBS,

Inc. v. Dallas, 107 L.Ed.2d 603, 622 (1990).

29

tive actions such as Secretary of Interior v. California and

Bowsher v. Synar, supra, and the Court should take this

opportunity to clarify the rule. Especially where punitive

and compensatory damages are demanded by a plaintiff

with no cognizable claim to standing, the more recent de-

cision in Valley Forge should have precedence over the

Arlinaton Heights footnote.

On a Constitutional level, the federal courts are simply

not empowered to hear claims for damages and other relief

asserted by any party who lacks standing in his own right;

and this is important on a practical level as well, since

the presence and participation of additional parties without

an objective stake in the controversy (other than hope for

a windfall award of damages) is likely to affect the costs

and logistics of the litigation and could affirmatively impede

settlement prospects. The need to apply Art. III standing

analysis is especially great in this case, where First

Amendment interests are being directly attacked, and the

plaintiff professes to be no more than a distressed news-

paper reader.

Because the individual plaintiff did not allege or prove

injury to himself sufficient to invoke federal judicial power

under Art. III, this Court should make clear that he cannot

be permitted to litigate his claims in the federal courts.

CONCLUSION

For the reasons stated above, a writ of certiorari should

be issued to review the judgment of the court of appeals.

Respectfully submitted,

REUBEN B. RosBertTson, III

Dow, LoHNES & ALBERTSON

1401 Sixteenth Street, N.W.

Washington, D.C. 20036

Counsel Of Record For Petitioner

Colonial Village, Inc.