Opposition Brief — Riga v. Alexander

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NOV 30 2000

a; ;

No. 00-195 a CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JOSEPH AND MARIA RIGA,

Petitioners

Vv.

RONALD AND FAYE ALEXANDER and

FAIR HOUSING PARTNERSHIP OF

GREATER PITTSBURGH, iNC.,

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI

Caroline A. Mitchell

Counsel of Record

3700 Gulf Tower, 707 Grant St.

Pittsburgh, PA 15219

(412) 232-3131

Timothy P. O’Brien

1705 Allegheny Bldg.

429 Forbes Avenue

Pgh. PA 15219

(412)232-4400

Attorneys for Respondents

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether a fair housing organization which

proved diversion of its resources for investigating a

complaint of race discrimination in housing has standing

to sue for damages caused by the violations of the Fair

Housing Act which its investigation revealed.

2. Whether landlords who violated the Fair

Housing Act are liable to the aggrieved parties

whose rights were violated by their conduct

a. Whether punitive damages can be awarded

for violations of the Fair Housing Act where the jury failed

to award actual damages.

4. Whether a principal with a non-delegable

duty not to discriminate is vicariously liable for punitive

damages for housing discrimination committed by his

managerial agent

TABLE OF CONTENTS

Counterstatement Of Questions Presented .............. i

Tees CR Civics ii

Fabbe OF Cited Accettie oicccscsesscssnsesssicesionseriecnctets iv

CounterStatement of the Case ..............cccccsssseeseees 1

Reasons For Not Granting The Writ..............:0:0008 5

I. Courts Of Appeal Have Correctly

Applied Precedent To Hold That

Fair Housing Organizations Which

Proved Diversion Of Resources To

Investigating A Bona Fide Com-

plaint Of Discrimination and

Countering its Effects Have Stand-

gy TO UU asses secensscnadsssontunanaianetiennitimmnactinnn 5

I. The Third Circuit’s Decision

Properly Recognizes That Land-

lords’ Violations Of The Fair

Housing Act Renders Landlords

Liable For Damages and Does

not Conflict with Decisions of

Il. The Decision of the Court of

Appeals Holding that Punitive

Damages Can Be Awarded For

Violations Of Federal Civil Rights

Absent An Award Of Actual

Damages Is in Conflict only

with Decisions of Other Courts

which Wrongly Applied State

Law , not Federal Law to Federal

Civil Rights Questions..................cc.cssssee 11

a ee

itt

IV. The Decision of the Court of

Appeals Holding that a Principal

is Vicariously Liable for Punitive

Damages For Discrimination by A

Managerial Agent Comports with

TABLE OF CITED AUTHORITIES

Cases Page

Alexander v. Riga , 208 F.3d 419 (3rd

Ce BRIE Aicssccereenenasiatinabioniiebica javincectuetinantnctasiamiatants 10,11

Basista v. Weir, 340 F.2d at 87 (3rd Cir.

Per ic ccsaniccancncctveucabaciienaareusasaracazumncimadumaeaamaamatnceaee 13, 14

Bennett v. Spear, 520 U.S. 154, 117 S.Ct.

EE, EG Cd its saiessccrncchanaswenicunenoiccvanveestaneuvaiane 13

Carey v. Piphus, 435 U.S. 247, 98 S.Ct.

1OG2, TODS, TS LG. B6 BOE CUBE) svcxsisconessevionsentine 11

Fair Employment Council Of Greater

Washington, Inc. V. BMC Marketing

Corp., 28 F.3d 1268 (D.C. Cit, T9DG) cc.cccssissscccesosscs 9

Fair Housing Council of Suburban

Philadelphia v. Montgomery Newspapers,

AES FSS 71 CRG. Fer etsincininitcmnmnnins 7

Goodman v. Lukens Steel, 482 U.S. 656,

661, 96 L. Ed. 2d 572, 107 S. Ct.

BET SMITE cisictiiiukeceeduadeausndasdodckomatata G

Havens Realty Corp. v. Coleman, 455

U.S. 363, 102 S.Ct. 1114, 71 L.Ed. 2d.

BBG CEDIIED sicisssciernnviarsnineinnsiiteiniceasincanateimeapadehiaanesoniaies 6, 7

Hooker v. Weathers, 990 F.2d 913 (6th

Oe - Diiccvccistivshcahcccocsiahaelbndeasienctagiaeianamenitoeesais 8

Kolstad v. “American Dental Association,

SAF UTS. FE Ce viiiatesckienscckavetnw neinslaiteenincninies 14

Louisiana ACORN Fair Housing v.

LeBlanc, 211 F.3d 298 (Sth Cir. 2000)............:csc000 8,9

McDonnell Douglas Corp. v. Green, 411

Sak FE ID vi suinssesisrissaienpannnecinieneaenenineeneiin 11

People Helpers Foundation, Inc. v. City of

Richmond, Va., 12 F.3d 1327 (4th Cir.

UE siihiinsiusenacinncccisinesiniian haan eenatiaascininienaetehaaminabaeies 13

Reeves v. Sanderson Plumbing Products,

ee. , SIA, Br FI iectietstticensiniicmncionves 11

Smith v. Wade, 461 U.S. 30, 75 L.Ed.

Bie GFR, BOS SAK WEE (Ia) oevssnisscnssessiccsninnvonnnins 15

Spann v. Colonial Village, Inc., 283

U.S.App.D.C. 216 899 F.2d 24 (D.C.

RR i ies siinivicalnnicasaiconieeesdnatintaiabiidsainninteniiiciainia 8

The Civil Rights Cases, 109 U.S. 3, 22-23, 27 L. Ed.

a FR BB Cee iicictcinsshecencsanevinnsnsinnineanseeiiaisi 9

Village of Bellwood v. Dwivedi, 895 F.2d

SE PE Nad WI satktaneannssnrntiuniiaiinimetianpieimiads 8

Walker v. Anderson Elec. Connectors, 944

Fe RR CRE GN, FO ic esicrnnscasesccsminiisesssonssnbinencens 12

Statutes:

The Civil Rights Act of 1968 , Title VIII

The Fair Housing Act, Sec. 801-812, 42 USC 3601

et seq. (1988)

ie - FE | cesviceticmnicnnnsentinnennnstiininmnnsncrion 12

ee Sree.. FIE sitiensdvicuaticisGeneatintinenis 4,9

en isis ciicintcnsisaanctncnaiascione 9 ,12

The Civil Rights Act of 1964, Title VII

as amended, 1991

Le Ne nN A eee 11

The Civil Rights Act of 1871

ee NN BI cnxsderececarthessiianatoleinsdnedntixtahbinde 14

Authorities

Restatement of the Law, Agency (Second) Sec. 217

D. Dobbs, Law of Remedies, Sec. 3.8, pp. 191-193

SER RRR ine ca nee 10

COUNTERSTATEMENT OF THE CASE

Petitioners unfairly characterize themselves in their

Petition before this Court as a ‘mom and pop’ Italian-

American couple who own ‘an’ apartment building in

Pittsburgh, Pa. Petitioners’ Brief at 3. In fact, Joseph and

Maria Riga ( hereinafter, ‘landlord-Husband’ and

‘Landlord-Wife’ ) own and operate six multi-unit

apartment buildings in Pittsburgh, Pa. App. D at 59 a.

Mrs. Riga admitted that that she served as managerial

agent doing all tenant applications, check cashing, bill

payment and dealing with tenants, while her husband was

in Italy. Landlord Wife advertised in the Sunday

September 17, 1995 newspaper an apartment for rent in

one of their buildings, 5839 Darlington Rd., located in a

predominantly white, wealthy area of Pittsburgh. On that

same day, Ron and Faye Alexander, an African-American

couple, telephoned the Rigas’ unlisted number stated in the

ad and set up an appointment with Maria for the

Alexanders to view the apartment . The Alexanders

telephoned Maria and changed the time of their

appointment. At the appointment on Monday 9/18, Mrs.

Riga saw the Alexanders waiting for her, realized they

were black , and falsely advised the Alexanders ‘they had

just missed ‘ the apartment. This apartment remained

empty and not rented, and was advertised weekly by the

Rigas, from September 17 until November 20, 1995.

App.D. at 67a.

The next Sunday 9/25/95, the same ad appeared

again. Seeing the same advertisement Mr. Alexander

asked a white friend, Robin McDonough to call about it.

Robin reported to the Alexanders that she was told that

the apartment was available. Mrs. Alexander then called

again, identifying herself as Stacy, and was asked by

Maria where she was then living. Faye replied

‘Homewood’, a predominantly poor and black area of

Pittsburgh; Faye was falsely told by Maria the apartment

was not available. After consulting with a lawyer,

Caroline Mitchell, Mr. Alexander complained about the

way he and his wife had been treated to the Fair Housing

Partnership of Pittsburgh (hereinafter ‘FHP’.) Attorney

Mitchell hired a private white detective Jeff Lang, to

investigate.

Using a different name, Mr. Alexander telephoned

to see the apartment, received an appointment from Maria

for 9/30, and called Maria twice the morning of 9/30 to

confirm his appointment. When he met Maria at the

building, she falsely stated that she had forgotten her keys,

and could not show him the apartment, as her hand

covered up her keys. Mr. Alexander "couldn't believe it, it

made him angry,” he thought she was lying. When he

asked to reschedule, Mrs. Riga refused to reschedule and

said that he could call her. He was feeling "a little bit too

sick to say anything else. . . . He walked away, then

turned and saw her entering the building.." At trial, the

Alexanders described in detail the deceptions to which

they were subjected, and the consequent mortification they

suffered. Mr. Alexander continued to try to contact Mrs.

Riga after the ‘key’ incident, and also had friends call. He

testified at trial that he felt "hurt and discouraged, it is

sort of degrading, it discourages you from trying. . . to

find a place for your family to live, it is just sickening, I

really can't describe it. It is terrible. . .”

After filing a complaint with FHP , Ron Alexander

called the Riga number, leaving numerous messages from

9/30 through 10/8 to reschedule, but did not receive any

responding telephone call from Mrs. Riga. When he did

‘catch ‘ Maria personally answering the phone, she refused

to deal with him, falsely telling him ‘ the unit has been

rented’ ‘the ad was placed prematurely, the old tenant had

n’t moved yet’; ‘ ‘the apartment is not available.’ From

September 17, 1995, through October 8, 1995, on ten

separate occasions, Ronald and Faye Alexander, inquired

about availability of the apartment and were lied to by

Maria Riga. During the same time, whites had their calls

returned, were truthfully told the apartment was available,

and were granted a view.

Ron Alexander complained about Mrs. Riga’s

behavior to Fair Housing Partnership of Pittsburgh, a fair

housing organization funded by the Federal government

whose mission and purpose is to investigate complaints of

housing discrimination. To investigate the Alexanders’

complaint, FHP staff ‘ dropped everything else ‘ to set up

a tester program for 5839 Darlington. FHP staff was

concerned because the Riga’s refusal to deal with blacks in

Squirrel Hill exacerbated the segregation that already

existed in Allegheny County. r. 232. FHP staff prepared,

structured and monitored the tests, and found and

assigned black tester Daria Mitchell and white tester ,

Dennis Orvosh. Daria Mitchell, an African-American

“tester” for the FHP, telephoned Maria for an appointment

and was deliberately given a nonexistent and incorrect

address (’583’ Darlington Rd. instead of ‘5389’ ) by Maria

, who also falsely identified herself as ‘Maria Ianotti ’ to

Daria. As Daria walked up to the building, Maria Riga

and Jeff Lang ( the white detective hired by counsel for

the Alexanders) had just finished viewing the apartment.

As Maria saw Daria, she told Jeff that ‘ this woman

(Daria) is driving me up a wall’ as she rolled her eyes .

Daria was then falsely told by Maria , in front of Jeff, that

‘ Jeff was getting the apartment .’ Maria Riga never replied

to Daria Mitchell’s request to call Daria if the apartment

became available.

From Sept. 30 through Oct. 4, FHP then structured

tests, assigned testers, and monitored additional tests to

see if whites were still being told the truth about

apartment availability while blacks Daria Mitchell and

Ron Alexander did not even get return phone calls. FHP’s

investigation disclosed that beginning September 18 1995,

on ten separate occasions, Mrs. Riga returned phone calls

to whites, and truthfully told whites that the apartment

was available, allowed each white a view, and promptly

returned whites’ phone calls. As of Nov. 20, 1995, Maria

had never replied to the requests of Daria Mitchell or Ron

Alexander. (In their petition, Respondents unfairly

characterize this testing and investigation by FHP as

FHP’s ‘minimal and gratuitous..’ involvement.)

The inability of blacks to rent in Squirrel Hill was of

concern to FHP. FHP believed that because the segregation

was in Squirrel Hill, a predominantly white area, an

unchecked act of discrimination had a strong negative

impact. To counter the Riga’s discrimination, and as a

result of the Alexanders’ Complaint, FHP diverted staff

resources and funding from other projects to

investigate the complaint, then undertook activities of

education and outreach to counter the effects of the

Rigas’ discrimination.

FHP joined Ron and Faye Alexander as plaintiffs

in suing the Rigas for race discrimination for Landlords’

violations of their rights to truthful information as

guaranteed by the Fair Housing Act , 42 USC 3604(d).

Contrary to Respondents’ description of the relief sought,

all Plaintiffs sought compensatory, nominal and punitive

damages , declaratory, equitable and injunctive relief, and

presented evidence in support of damages at trial. In

defense of the claims, Mr. Riga claimed he was in Italy,

and Mrs. Riga variously claimed that she had never

met, seen or spoken to the Alexanders, that her answer

machine was broken, that she received no messages from

the Alexanders, that Apartment #2 was not vacant or

available for rent , that the tenant had not moved yet and

that the apartment had been advertised ‘prematurely.’

A jury found in favor of each Plaintiff,

returning special verdicts that Maria Riga had

discriminated and had violated the Fair Housing Act.

App. B at 33a. Because Landlord-Wife conceded that she

was managerial agent for her co-principal, her husband,

the discriminatory acts of the agent were imputed to the

principal and the jury was charged with determining only

whether Maria Riga as agent had discriminated and

violated the Fair Housing Act. If so, Joseph as principal

was liable by law for the discriminatory acts of his agent .

The learned trial court committed plain error in the jury

instructions, when it instructed the jury that it must find ’

legal harm’ as prerequisite to an award of compensatory or

nominal damages. The jury found no ‘legal harm’ to the

Alexanders, and awarded zero damages to each, despite

testimony that both Alexanders were embarrassed and

humiliated and that the services of the private detective

had cost $450.00.

The jury found ‘ legal harm’ to FHP, but awarded

no damages despite FHP’s testimony of $2250 in expenses

incurred in investigating the Alexanders’ complaint, App.

at 76a. The trial court refused to send punitive damages

to the jury, because no award of compensatory damages

had been made for any plaintiff. App. Bat 41a. The trial

court entered judgment for Landlords as prevailing parties

against all Plaintiffs then reversed its entry of judgment

for Landlords against FHP. App. B at 45a-46-a. The

trial court refused to tax costs for plaintiff FHP , or for

Defendants against Plaintiffs, App. B at 51a-52a,

reasoning that each party should bear its own costs, and

that ‘there should be some consequence to the Rigas for

such conduct. ‘ The result of the trial was thus that all

Plaintiffs spent their own funds and were out of pocket for

proving Landlords had committed violations of the Fair

Housing Act in refusing to deal with Afro-Americans at

their Darlington apartment.

On appeal, the court of appeals affirmed the

standing of FHP to sue, App. A at 11a, and found that

once the jury found discrimination, it was plain error for

the District court to require Plaintiffs to also prove ‘ ‘legal

causation and harm ’ to be entitled to compensatory

damages. App. A at 13a, 14a. The Court of Appeals also

found that the jury was erroneously instructed that an

award of nominal damages requires a finding of

‘insubstantial actual damages or ‘ legal harm. ‘

A plaintiff need not prove that a violation of the

Fair Housing Act caused ‘legal harm or actual injury.’

App. A 14a. The Court of Appeals reversed the entry of

judgment for the Landlords against the Alexanders,

assigned judgment for the Alexanders, declared the

Alexanders and FHP to be prevailing parties against

Landlords, and remanded for assessment of attorney fees

and costs against Landlords and a new trial on punitive

damages against both Landlord Husband and Landlord

Wife . A principal (Joseph Riga) who has violated his non

delegable duty not to discriminate by acts of his

managerial agent is liable for punitive damages under

Restatement Second Agency 217 C(c). App A at. 30a.

REASONS FOR NOT GRANTING THE WRIT

Courts of Appeal Have Correctly Applied Precedent to

Hold that A Fair Housing Organization Which Proved

Diversion Of Its Resources For Investigating A Bona

Fide Complaint of Race Discrimination In Housing Has

Standing To Sue For Violations Of The Fair Housing Act

under Havens Realty v. Coleman

The Court of Appeals properly applied Havens

Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71

L.Ed. 2d. 214 (1982), to uphold the trial court’s decision

that FHP had standing to sue as an aggrieved person who

suffered damages by its diversion of resources to

investigate a complaint, and action to counter the

Landlords’ discriminatory acts. App A at 7a. In their Brief

at p. 6, Petitioners misstate the record below by stating

that the only basis for FHP’s suit is the ‘ litigation expense’

incurred by FHP. Petitioners further mislead this Court by

claiming that the court below erroneously ‘ held that merely

incurring litigation expense’ confers standing.

FHP sought damages flowing from Landlords’

violations of the Fair Housing Act which FHP’s

investigation revealed. ‘Litigation expense’ alone was

never sought by FHP; the record discloses § FHP’s

spending money for _ investigation of the Alexanders’

complaint and FHP staff's ‘dropping everything else’ and

diverting time and money from other projects to

formulate, prepare, assign and conduct tests to see if

Landlords were refusing to deal with black applicants at

Darlington. Finding discrimination, FHP then countered

the effects of the Rigas’ discrimination by education and

outreach, diverting more money and staff time from its

other programs. FHP based its standing to sue _ on its

status as an aggrieved person statutorily entitled to sue to

redress Landlords’ violations of the law and its i i

damages of expenses for its investigation and outreach

caused by Landlords’ violations. App. D, at 75 a-76a.

In an effort to obtain certiorari, Petitioners not only

misstate the record on ‘litigation expense’ but also

mischaracterize the Court of Appeals decision on standing

as ‘undermining’ Havens. Havens involved a fair housing

organization who assigned two testers to investigate a bona

fide complaint that Havens was lying to blacks about

apartment availability in violation of 3604(d). Havens

established the rights of the organization to sue based

upon deprivation of statutory rights guaranteed by the Fair

Housing Act, because invasion of those rights constitutes

an injury . Damages to a fair housing organization may

include damages for diversion of its resources and

impairment of its mission. Havens, Id. at 372.

Petitioners argued to the Third Circuit that its

panel decision in Fair Housing Council of Greater

Philadelphia v. Montgomery Newspapers , 141 F. 3d 71 (3rd

Cir. 1998) ‘has created confusion within the Circuit...’ Brief

at 8. However, the court of appeals unanimously rejected

Landlords’ contention that frustration of mission and/or

diversion of resources to investigation are each insufficient

to confer standing. In Fair Housing Council, The Third

Circuit cited to Havens stating, “Havens made clear that

where discriminatory practices have perceptibly impaired

an organization’s ability to carry out its mission, there can

be no question that the organization has suffered an injury

in fact.” The court then noted that FHC’s claim based on

diversion of resources to investigation ‘fails for lack of

proof.’ “.... Thus, in both Alexander and FHC, the Third

Circuit correctly ruled that diversion of resources to

investigation can constitute injury in fact. The ‘confusion

in the third Circuit’ claimed by Landlords simply does not

exist .

Petitioners also. seek certiorari, and cite a

number of court of appeals decisions applying the

established principles of Havens to the complicated factual

records in these cases. The mere fact that lower courts

applying Havens come to different results as to

organizational standing is not per se evidence of a ‘split in

the circuits.’ In Spann v. Colonial Village, 283

U.S.App.D.C. 216 899 F.2d 24 (D.C. Cir. 1990) the

Court found that ‘the fact that the alleged harm affects

the organization’s non-economic interest - for example, its

interest in encouraging open housing-- does not deprive the

organization of standing ’ and that the organizations allege

such injury here: ‘resources devoted to checking the ads

and then neutralizing the ads’ adverse impact on buyers

and renters ...’

The Petitioner’s Brief mis-cites the holding in

Village of Bellwood v. Dwivedi, 895 F. 2d 1521 (7th Cir.

1990). The holding in that case was not that a mere

‘deflection of time and money from counseling to legal

efforts is sufficient injury to confer standing.’ Rather the

Seventh Circuit held that the organization’s efforts to

investigate steering were sufficient injury in fact to confer

standing. Hookers v. Weathers , 990 F. 2d 913 ( 6th Cir.

1993) did not hold that a mere ‘deflection of time and

money from counseling to legal efforts alone is sufficient

injury to confer standing.’ Rather, the appeals court

reversed the trial court’s margin order, noting , “From the

meager record before us we see no evidence that plaintiffs

lack standing.’

Last, petitioners cite Louisiana Acorn Fair Housing v.

LeBlanc, 211 F.3d 298 (5th Cir. 2000) as evidence of a

‘split.’ There, $10,000 in punitive damages were awarded

to the individual plaintiff denied an apartment because of

race. The Court of Appeals vacated the punitive damages

award, noting that under state law, punitive damages are

prohibited when there is no compensatory damages

award. The appeals court vacated the compensatory

damages awarded to ACORN for its expenses of

investigating the complaint of discrimination and noted

that an ‘ organization can have standing if it has proven a

drain on its resources’, but ruled that ACORN did not

prove ‘drain on its resources’ and thus had no standing

to sue.

Respondents contend that ACORN was wrongly

decided by the Fifth Circuit’s failure to properly apply the

Havens standard of diversion of resources to the facts of

the case. The Fifith Circuit’s coming toa different result

as to ACORN’s standing, on different facts, does not

mandate a grant of certiorari in Alexander.

As further proof of a split, Petitioners cite to an

inapposite Title VII case, Fair Employment Council of Greater

Washington v. BMC Marketing 28 F. 3d 1268 (D. C. Cir.

1994) ( fair employment organization has no standing to

sue under 42 USC 1981 and Title VII for its sua sponte

‘self-referred’ investigation of racially motivated refusals

to hire. ) Petitioners fail to point out to this Court that the

appeals court noted “...neither of the federal (employment)

statutes that (plaintiffs) invoke give tester plaintiffs a

cause of action for damages, and they lack standing to

seek other forms of relief in this case...”

Il.

The Third Circuit’s Decision Properly Recognizes that

Landlords’ Statutory Violations of the Fair Housing Act

renders Landlords Liable for Damages Caused by the

Violations of Plaintiffs’ Rights

Racial discrimination is a "fundamental injury to

the individual rights of a person," Goodman v. Lukens Steel,

482 U.S. 656, 661, 96 L. Ed. 2d 572, 107 S. Ct. 2617

(1987), and the inability to buy or lease real property can

be considered one of the badges and incidents of slavery.

See The Civil Rights Cases, 109 U.S. 3, 22-23, 27 L. Ed.

835, 3 S. Ct. 18 (1883) The complaints filed by

respondents Alexander and FHP are statutory forms of

action alleging statutory violations. The Fair Housing Act

provides that "an aggrieved person may commence a civil

action... to obtain appropriate relief with respect to such

discriminatory housing practice or breach." 42 U.S.C. @

3613(a)(1)(a).The Fair Housing Act defines

“discriminatory housing practice," 42 U.S.C. @ 3604, as

follows:

(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, familial status, or national origin.

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

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

national origin that any dwelling is not available for

inspection, sale, or rental when such dwelling is in

fact so available.

The plain language of the Fair Housing Act thus

permits an ‘aggrieved person’ to obtain damages and relief

for the discriminatory housing practice or breach. Such

person must prove only that a landlord did one of the

unlawful acts listed in section 3604 , then prove the

damages suffered. Dobbs on Remedies , Sec. 3.11 at 279

notes, ‘...Damages means harm or loss suffered by a

Plaintiff. The harm may be more or less than the damages

awarded ...’ “...Substantial damages may be permitted in

dignitary torts such as batteries .. or for denial of

important rights like the right to vote ...’ Dobbs, Sec. 7.4.

The Third Circuit held that proof of a violation of

the Fair Housing Act is sufficient to impose liability on the

landlord-petitioners for whatever damages were caused to

each Plaintiff. Absent a plaintiff’s proof of ‘actual injury’ ,

nominal damages are mandatory to recognize a violation

of a civil right. The jury found that Landlords violated

Plaintiffs’ federal rights to be free from _ housing

discrimination. This entitles each Plaintiff to be awarded

such actual damages as are proven, and punitive

damages.

Petitioners misapprehend what the Court of

Appeals opinion says in Alexander , App. A at 12a. The

court merely states that a statutory violation of the Fair

Housing Act is a ‘harm’ which renders Landlord liable for

damages caused thereby . A Plaintiff who proves a

violation of the Fair Housing Act need not then also prove

‘legal harm: ’ he or she need only prove that the statute

was violated, and then prove what damages were caused

thereby. In so ruling, the Court of Appeals was faithful to

its own precedent in Basista v. Weir, 340 F. 2d 74, 87

(allowing punitive damages without actual damages for

false arrest in violation of 42 USC 1983, rejecting a state-

law tort requirement that Plaintiff prove ‘ actual harm’ or

actual injury before being entitled to punitive damages)

Petitioners erroneously imply that Alexander is

inconsistent with Carey v. Piphus, 435 U. S. 247, 266-

267 (1978). The Carey Court held that nominal damages

could be awarded to recognize violation of the right to due

process, without proof of actual injury, because the right to

procedural due process is absolute. . . “Under the Fair

Housing Act, the right to fair housing opportunity is

absolute. If Plaintiff proves that Defendant violates the

Fair Housing Act, the aggrieved persons is entitled to

recover the damages which are proved to be caused

Such a result is completely consistent with the Supreme

Court’s analysis in Carey.

Petitioners then call the Court’s attention to a string

of old and new Title VII cases such as McDonnell Douglas

v. Green , 411 U.S.792 (1973) through Reeves v. Sanderson

Plumbing Products , Inc. 120 S.Ct. 2097 (2000) and claim

without further explanation that Alexander ‘contradicts all

of these decisions of this Court .. ‘ Brief at 12.

Te IER ee NE nT ree y

Petitioners then claim that Alexander ‘severs the causation

link’ in discrimination cases , resulting in ‘unprecedented

expansion of liability’. Brief p. 17

This excoriation of the third Circuit’s opinion is

perplexing and uncalled for. | Upon proof of a violation

of Title VII, Plaintiff | adduces proof that Employer’s

discrimination caused Plaintiff some damages such as

lost promotion , back pay or emotional distress . The

recent 1991 amendments to title VII , 42 USC 1981a (1991)

create a claim for compensatory and punitive damages for

violation of Title VI, and render Employer liable for

violation of the law even if Employer proves it would have

made the ‘ same decision’. Under either Title VII or Title

VII, proof is is the same: once Plaintiff proves that a

Defendant commits unlawful discrimination in violation of

the statute, Plaintiff proves what damages are ‘caused

by’ the discriminatory act and what redress is

appropriate. The Alexander Court held that it is plain

error to requirea Title VII plaintiff to prove ‘ legal

harm’ or ‘insubstantial actual injury’ before being entitled

to compensatory or nominal damages.

In a last effort to show a ‘split within the Circuits,’

the defendants cite an inapposite Title VII case, Walker

v. Anderson Elec. Connectors, 944 F. 2d 841 (11th Cir.

1991) a Title VII sexual harassment case arising prior to

the 1991 amendments . In Walker, under then-existing law,

a plaintiff subject to sexual harassment had no entitlement

to compensatory or punitive damages. Walker failed to

prove any back pay loss ‘caused’ by Employer's

discrimination. Walker merely stands for the proposition

that where Walker failed to request nominal damages at

trial, failed to prove actual damages, and failed to file

post trial motions claiming a entitlement to nominal relief,

Plaintiff had waived claims for nominal relief, and was not

entitled to a verdict.

Il.

Punitive Damages Can Be Awarded for

Violations of Federal Civil Rights Absent an

Award of Actual Damages

Petitioners challenge the decision of the Third

Circuit Court of Appeals remanding for a new trial on

punitive damages. This matter is not ripe for issuance of a

writ of certiorari to the Third Circuit until after the trial on

punitive damages. Should Landlords prevail and defeat

punitive damages , the punitive damages question in this

case will be moot.

The decision of the Third Circuit Court of Appeals

remanding for a new trial on punitive damages properly

relies upon the legislative history and the plain language of

the Civil Rights Act of 1968, 42 USC 3601 et seq. Plain

language of the damages provision of the Fair Housing

Act. 42 U.S.C. @ 3613(c) is as follows:

(1) In a civil action under subsection (a) of this

section, if the court finds that a discriminatory

housing practice has occurred. . . , the court may

award to the plaintiff actual and punitive damages,

and. . . may grant as relief, as the court deems

appropriate, any permanent or temporary injunction,

temporary restraining order, or other order (including

an order enjoining the defendant from engaging in

such practice or ordering such affirmative action as

may be appropriate). |

A Court has the duty to "give effect, if possible, to

every clause and word of [the] statute. . . . " Bennett v.

Spear, 520 U.S. 154, 173, 117 S. Ct. 1154, 137 L. Ed. 2d

281 (1997). An award of punitive damages is not

conditioned upon an award of actual damages under the

plain language of this statute, and the third Circuit so

found.

Petitioners cite two circuit opinions, the 5th

Circuit’s Louisiana ACORN , supra at 8, and the 4th

Circuit’s People Helpers Foundation v. City of Richmond , 12

F. 3d 1321, 1327 (4th Cir. 1993) Both courts set aside

punitive damage awards under title VIII because no

compensatory damages were awarded. The court in

Louisiana ACORN concluded that punitive damages were

not available for mere ‘statutory violations ’ of Title VII

civil rights. People Helpers refused to allow punitive

damages for a Title VIII civil rights violation , noting that

Virginia state law precluded an award of punitive

damages without actual damages. The ACORN panel

rejected the logic of Peoples Helpers, noting that the basis

= ere amt

for its holding is ‘flawed.’ Quoting the ‘flawed logic’

rejected by ACORN, Petitioners now argue that state law

controls entitlement to punitive damages for federal civil

rights violations.

Petitioners unfairly accuse the Third Circuit ‘

without explanation’ of finding that punitive damages

can be awarded without compensatory damages, and then

omit all mention of the Court’s discussion at App. A, at

18a of Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965)

(upholding award of punitive damages for violation of due

process rights under 42 U.S.C. 1983 without any award of

compensatory damages.)

Petitioners argued in their Brief to the 3rd Circuit

that punitive damages can never be awarded at all, absent

compensatory damages, for any federal civil rights

violations whatsoever. App A at 18a. But Petitioners then

conceded before the 3rd Circuit that under Basista it is

appropriate to award punitive damages without

compensatory damages for ‘constitutional’ violations

under 42 USC 1983. ACORN applied 5th Circuit

precedent to hold that punitive damages are

unavailable for mere ‘statutory’ violations of Title VII.

That holding, while erroneous, does not _ provide

grounds for granting a writ of certiorari in this case.

IV.

Vicarious Liability of a Principal for Punitive

Damages for His Managerial Agent’s Discrim-

ination in Derogation of a Non-delegable Duty

Petitioners make a peculiar argument that the issue

here is ‘whether a husband is vicariously liable for acts of

his wife.’ Petitioners fail to mention Section 217C(c),

Restatement of the Law (Second) of Agency which sets forth

the liability of a principal for punitive damages for acts of

his managerial agent which violate a nondelegable duty.

The Court of Appeals applied this standard tenet of

agency law, holding that the principal Joseph Riga is liable

for punitive damages for violations of his nondelegable

duty not to discriminate by acts committed by his

managerial agent, Maria. The Court of Appeals found that

Maria Riga’s conduct displays sufficient ‘malice and

reckless indifference’ to support punitive damages. App.

A at 20a.

The Third Circuit noted that the defenses to

liability under Title VII enunciated in Kolstad v. American

Dental Association, 527 U.S. 526 (1999) do not even pertain

to this case. Petitioners nevertheless claim that the

Circuit’s decision ‘ takes Kolstad to an unwarranted

extreme..’ ; Petitioners beg the Supreme Court to intervene

‘before it is too late.’

Petitioners cite to Smith v. Wade, 461 U.S. 30, 56

(1983) and argue that Maria Riga did not display

sufficient ‘ reckless or callous indifference’ to federal rights

by lying and refusing to deal with Afro-Americans on ten

separate occasions for two months. In fact far less

egregious conduct has supported an award of punitive

damages under civil rights law. In this case, the record is

replete with evidence that landlord-husband delegated his

all managerial authority to his wife. She was authorized

to sign his letters , deposit ail checks and make all

decisions dealing with rental of their six apartment

buildings including decisions to repeatedly refuse to deal

with Afro-Americans. Under 217C(c) Restatement of

Agency, acts of a managerial agent in derogation of a

nondelegable duty can render a principal liable. This

question is not one which is necessary for this Court to

review.

CONCLUSION

A panel of the Third Circuit Court of Appeals

correctly held that a fair housing organization which

proved diversion of its resources for investigating and

countering race discrimination in housing has standing to

sue for damages and redress for violations of the Fair

Housing Act which its investigation revealed. The Third

Circuit’s conclusion does not warrant review because it

correctly applied the Supreme Court’s decision in Havens

Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71

L.Ed. 2d. 214 (1982). The cases relied upon by

Petitioners to justify grant of the writ of certiorari on

grounds of conflict in the Circuits can be differentiated

from the instant case based upon the particular facts of

record.

Petitioners’ misreading of the Third Circuit’s

opinion causes them to claim that the Third Circuit has

enunciated a new rule on causation, when in fact the lower

Court’s decision is in completely in accord with years of

precedent. The Court of Appeals also correctly applied

precedent to hold that under the plain language of the Fair

Housing Act, an award of punitive damages need not be

preceded by any award of actual damages. A writ of

certiorari is premature in this case, because no trial on

punitive damages has been held, and __ the punitive

damages issue may be moot after a trial.

Last, a writ of certiorari is inappropriate where the

Court of Appeals, applying well-established agency

principles, held that a principal with a non-delegable duty

not to discriminate under the Fair Housing Act can be

vicariously liable for punitive damages for acts of housing

discrimination committed by his managerial agent. The

petition for writ of certiorari to the Court of Appeals for

the Third Circuit should be denied.

Respectfully submitted,