United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2010 Decided March 8, 2011
No. 09-5359
EQUAL RIGHTS CENTER,
APPELLANT
v.
POST PROPERTIES, INC. ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01991)
John P. Relman argued the cause for the appellant. Stephen
M. Dane, Douglas W. Baruch and Katherine A. Raimondo were
on brief.
Samuel R. Bagenstos, Principal Deputy Assistant Attorney
General, United States Department of Justice, and Dennis J.
Dimsey and Lisa J. Stark, Attorneys, United States Department
of Justice, were on brief for amicus curiae United States of
America in support of the appellant.
Virginia A. Seitz and C. Frederick Beckner III were on brief
for amici curiae AARP et al. in support of the appellant.
Lynn E. Calkins argued the cause for the appellees.
Christopher B. Hanback and Rafe Petersen were on brief.
2
Felicia K. Watson was on brief for amicus curiae National
Association of Home Builders in support of the appellees.
Before: GINSBURG , HENDERSON and ROGERS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON .
Concurring opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON , Circuit Judge: In November
2006, the Equal Rights Center (ERC), an organization interested
in, among other things, fair housing, sued Post Properties, Inc.
(Post), alleging that Post “designed, constructed, and operated its
[apartment] complexes in a manner making them inaccessible to
persons with disabilities in violation of the Fair Housing Act”
(FHA), as amended by the Fair Housing Amendments Act of
1988, 42 U.S.C. §§ 3601-3631, and Title III of the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189. Equal
Rights Ctr. v. Post Props., Inc., 657 F. Supp. 2d 197, 198
(D.D.C. 2009) (citing Compl. ¶ 2). The ERC appeals from the
district court’s grant of summary judgment to Post1 on the
ground that it lacked standing to bring its suit because it failed
to demonstrate an injury in fact. We agree that the ERC failed
to demonstrate that its injury was actual or imminent at the time
it filed suit; at the same time, however, we disagree with the
district court’s formulation of the showing an organizational
plaintiff must make to establish an injury in fact. Accordingly,
we affirm the district court’s judgment while setting forth the
correct formulation by which to assess an organizational
plaintiff’s standing vel non.
1
The ERC also sued Post Apartment Homes, LP and Post GP
Holdings, Inc., both of which are affiliates of Post Properties, Inc. We
refer to the defendants-appellees collectively as Post.
3
I.
To promote fair housing, the ERC provides counseling and
education services to individuals seeking housing. In addition
it sponsors education and training seminars for individuals
involved in the real estate industry, including developers, and for
fair housing organizations. Post has constructed and manages
nearly sixty apartment communities with over 20,000 apartment
units located in five states and the District of Columbia. In 2004
and 2005, after receiving complaints from national and local
disability groups about the construction and accessibility of new
multi-family housing units, the ERC began an investigation of
several builders, including Post. The ERC claimed its
investigation of Post “required the engagement of testers to
inspect 27 Post developments across the country” and that “the
ERC had to increase its own staff expertise in the accessibility
requirements [of the FHA and the ADA], and provide[] both a
basic and a specialized training to testers who were to take part
in the investigation.” Appellant’s Br. 15; see also Compl. ¶¶ 17-
26. In November 2006, the ERC filed a two-count complaint
against Post seeking “to enjoin and remedy ongoing and
systematic violations of” the FHA as well as the ADA. Compl.
¶ 2. The ERC alleged Post’s statutory violations “directly and
substantially injured” the ERC by “frustrat[ing] . . . its mission
to eradicate discrimination in housing, and in carrying out the
programs and services that it provides” and by “forc[ing] the
ERC to divert significant and scarce resources to identify,
investigate, and counteract Post’s” alleged discriminatory
practices. Compl. ¶¶ 43-44. In January 2007, Post moved to
dismiss and for partial summary judgment arguing, inter alia,
that the ERC lacked standing. The district court denied both
motions in June 2007 and discovery ensued. In December 2008,
Post moved for summary judgment, again arguing, inter alia,
that the ERC lacked standing. The district court concluded that,
because the ERC’s alleged injury stemmed from its own
4
decision to investigate and litigate against Post, its injury did not
confer standing. Equal Rights Ctr., 657 F. Supp. 2d at 199-201.
Accordingly, the court granted Post’s motion for summary
judgment. Id. The ERC timely appealed.
II.
We review standing de novo. Rempfer v. Sharfstein, 583
F.3d 860, 865 (D.C. Cir. 2009). A plaintiff’s standing to sue
under a statute ordinarily includes both constitutional and
prudential components. No prudential standing inquiry is
necessary for the ERC’s FHA claim, however, “because
Congress intended standing under the Fair Housing Act to
extend to the full limits of Article III.” Spann v. Colonial
Village, Inc., 899 F.2d 24, 27 (D.C. Cir.) (citing Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372 (1982)), cert. denied, 498
U.S. 980 (1990). “We therefore consider only core Article III
standing.” Id. An organization like the ERC can assert standing
on its own behalf, on behalf of its members or both. Abigail
Alliance for Better Access to Developmental Drugs v.
Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006). The ERC
asserted organizational standing only, which requires it, like an
individual plaintiff, to show “actual or threatened injury in fact
that is fairly traceable to the alleged illegal action and likely to
be redressed by a favorable court decision.” Spann, 899 F.2d at
27. To accomplish this, the ERC must point to a “concrete and
demonstrable injury to [its] activities”; a mere “setback” to its
“abstract social interests” is not sufficient. Id. (alteration in
original) (internal quotation marks omitted). An organization’s
expenditure of resources on a lawsuit does not constitute an
injury in fact sufficient to establish standing. Id. Otherwise, the
very act of bringing a case would confer standing “and Article III
would present no real limitation.” Id. The United States
Supreme Court has made clear, however, that if the defendant’s
allegedly wrongful action prompts an organization to “increase[]
5
the resources [it] must devote to programs independent of its
suit” against the defendant, the organization has shown an injury
in fact. Id. (citing Havens, 455 U.S. at 379). In Havens, an
organization promoting equal housing alleged that the defendant
real estate company’s discriminatory practice of “steering” away
black renters “had frustrated the organization’s counseling and
referral services, with a consequent drain on resources,” 455
U.S. at 369, because it forced the organization “to devote
significant resources to identify and counteract the . . . racially
discriminatory steering practices.” Id. at 379 (internal quotation
marks omitted). The Supreme Court concluded that the
organization’s allegations, if proven, constituted a sufficient
injury in fact based on the defendant company’s having
“perceptibly impaired” the organization’s ability to provide
counseling and referral services. Accordingly, the Court
affirmed the Fourth Circuit’s reversal of the district court’s
dismissal for lack of standing. Id. at 378-79.
Addressing the issue ourselves in Spann, we held that two
organizations promoting fair housing had standing to sue a real
estate company, its wholly-owned subsidiary and an advertising
agency for running allegedly discriminatory advertisements. 899
F.2d at 25-31. The plaintiff organizations claimed the
advertisements required them to expend additional resources to
educate the “real estate industry and the public that racial
preference in housing is indeed illegal.” Id. at 27. They alleged
the advertisements interfered with their “efforts and programs
intended to bring about equality of opportunity for minorities
and others in housing” and required them “to devote scarce
resources to identify and counteract [the] defendants’
advertising.” Id. at 28 (internal quotation marks omitted). They
further alleged that the defendants’ advertising reinforced
stereotypes of segregated housing and decreased the
effectiveness of their efforts to educate the real estate industry
and the public about anti-discrimination laws, which in turn
6
required the plaintiff organizations to increase their educational
efforts “to counteract the influence of [the] defendants’
discriminatory ads.” Id. (internal quotation marks omitted). The
plaintiff organizations further claimed the challenged advertising
adversely affected their “real estate testing program” because it
discouraged black buyers and renters from seeking housing
through the defendant companies and required the plaintiff
organizations “to broaden the scope of [their] efforts in order to
reach all forms of discriminatory housing practices.” Id.
(alteration in original) (internal quotation marks omitted). We
agreed that “increased education and counseling could plausibly
be required . . . to identify and inform minorities, steered away
from [the] defendants’ complexes by the challenged ads, that
[the] defendants’ housing is by law open to all.” Id. at 28-29.
More recently, we concluded that an organization promoting
equal employment had standing to sue an employment agency
for racial discrimination in hiring because the alleged
discrimination “might increase the number of people in need of
counseling” and “may have reduced the effectiveness of any
given level of [the organization’s] outreach efforts.” Fair Emp’t
Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28
F.3d 1268, 1276 (D.C. Cir. 1994). If so, the defendant’s actions
“perceptibly impaired” the plaintiff organization’s programs by
making its “overall task more difficult.” Id. While we upheld
the plaintiff organization’s standing, we placed an important
limitation on what types of expenditures are fairly traceable to a
defendant’s action so as to support standing. The plaintiff
organization alleged that it had discovered the defendant’s
alleged racially discriminatory hiring practices by “testing” the
defendant. The organization twice sent white and black
applicants “equipped with fake credentials intended to be
comparable” to seek employment through the defendant
company on the same day. Id. at 1270. On both days, the white
applicant was given a job referral and the black applicant was
7
not. Id. We “explicitly reject[ed] the . . . suggestion that the
mere expense of testing [the defendant] constitutes ‘injury in
fact’ fairly traceable to [the defendant].” Id. at 1276. We
explained that while a plaintiff organization’s diversion of
resources in order to “test” a defendant might harm its other
programs, the injury was “self-inflicted” as a result of the
organization’s “own budgetary choices.” Id. We concluded the
organization could not claim to have been injured by the
defendant simply because it chose to spend its money testing the
defendant rather than on other programs. Id. at 1277; see also
Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428,
1434 (D.C. Cir. 1995) (“The mere fact that an organization
redirects some of its resources to litigation and legal counseling
in response to actions or inactions of another party is insufficient
to impart standing upon the organization.” (quoted in
parenthetical, quoted citation omitted)).
From our precedent, the district court erroneously concluded
that the ERC could not establish standing because it “chose to
redirect its resources to investigate Post’s allegedly
discriminatory practices.” Equal Rights Ctr., 657 F. Supp. 2d at
201 (emphasis in original); see also id. (“ERC still needs to
establish that the injuries it suffered were not due to a self-
inflicted diversion of resources.” (emphasis in original)). That
the ERC voluntarily, or “willful[ly],” id. at 200, diverts its
resources, however, does not automatically mean that it cannot
suffer an injury sufficient to confer standing. In both BMC and
Spann, the plaintiff organizations chose to redirect their
resources to counteract the effects of the defendants’ allegedly
unlawful acts; they could have chosen instead not to respond. In
neither case did our standing analysis depend on the
voluntariness or involuntariness of the plaintiffs’ expenditures.
Instead, we focused on whether they undertook the expenditures
in response to, and to counteract, the effects of the defendants’
alleged discrimination rather than in anticipation of litigation.
8
Thus, in Spann we held that the plaintiff organization’s
expenditures on education and counseling programs designed to
educate the public about anti-discrimination laws and to
counteract the effects of the defendants’ allegedly discriminatory
advertising sufficiently alleged an injury in fact fairly traceable
to the defendants’ alleged conduct. 899 F.2d at 27-29. At the
same time, we explained that litigation expenses cannot establish
standing. Id. at 27. In BMC we held that, because the
defendant’s alleged discrimination “might increase the number
of people in need of counseling” and might “reduce[] the
effectiveness of any given level of outreach efforts,” the plaintiff
organization’s expenditures on education and counseling
programs designed to counteract those effects sufficiently
alleged an injury in fact fairly traceable to the defendant’s
alleged conduct. 28 F.3d at 1276. We nonetheless explained
that the plaintiff organization’s testing of the defendant would
not establish the plaintiff’s standing under Havens because
Havens described the injury there as one to the plaintiff’s
“noneconomic interest in encouraging open housing.”2 Id. at
1277 (quoting Havens, 455 U.S. at 379 n.20). Instead of
focusing entirely on the voluntariness of the ERC’s diversion of
resources, therefore, the district court should have asked, first,
whether Post’s alleged discriminatory conduct injured the ERC’s
interest in promoting fair housing and, second, whether the ERC
used its resources to counteract that harm. While the diversion
of resources to litigation or investigation in anticipation of
2
In BMC, disagreeing with the Seventh Circuit’s reading of
Havens, we made clear that Havens’s “drain on the organization’s
resources” language did not form the basis of the plaintiff
organization’s standing. 28 F.3d at 1277. Instead, we explained, the
“drain . . . sprang from” the organization’s injury to its interest in
promoting open housing, an interest, we concluded, “apart from [its]
efforts at increasing legal pressure on civil-rights violators.” Id.
9
litigation does not constitute an injury in fact sufficient to
support standing, the ERC’s alleged diversion of resources to
programs designed to counteract the injury to its interest in
promoting fair housing could constitute such an injury. See
BMC, 28 F.3d at 1276-77. Our precedent thus imposes a less
demanding test of an organizational plaintiff’s standing than the
one applied by the district court.3
To establish its standing, the ERC relies almost entirely on
two documents it produced after the close of discovery—an
August 1, 2008 document that purports to calculate the ERC’s
“frustration of mission damages” and a February 20, 2009
declaration of Donald Kahl, the ERC’s former chief operating
officer and current executive director, that describes actions the
ERC took in response to Post’s alleged illegal conduct.4 See
3
We note that the burden imposed on a plaintiff at the pleading
stage is not onerous. That burden increases, however, as the case
proceeds. Whereas “[a]t the pleading stage, ‘general factual
allegations of injury resulting from the defendant’s conduct may
suffice,’ and the court ‘presum[es] that general allegations embrace
the specific facts that are necessary to support the claim,’ ” at the
summary judgment stage “ ‘the plaintiff can no longer rest on such
“mere allegations,” but must “set forth” by affidavit or other evidence
“specific facts,” . . . which for purposes of the summary judgment
motion will be taken to be true.’ ” Sierra Club v. EPA, 292 F.3d 895,
898-99 (D.C. Cir. 2002) (ellipsis and second alteration in original)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(quoting Fed. R. Civ. P. 56(e))). Here, we are reviewing a motion for
summary judgment filed after the close of discovery. Accordingly,
the ERC can no longer rest on “mere allegations” but must set forth
“specific facts” establishing its injury in fact.
4
The “frustration of mission damages” document sets forth a
“preliminary calculation of frustration of mission damages total[ing]
approximately $9,195,920.00.” Kahl Decl. Ex. A. The calculation has
10
Kahl Decl. & Ex. A. Accepting the “frustration of mission
damages” document and Kahl’s declaration as accurate, as we
must at the summary judgment stage, see Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994),5 we find them insufficient to establish
standing because they do not indicate when the ERC undertook
the specified activities. To satisfy Article III, an injury in fact
must be both “concrete and particularized” and “actual or
imminent” at the time the plaintiff files suit. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992); Worth v. Jackson, 451
F.3d 854, 860 (D.C. Cir. 2006) (“[T]he existence of federal
jurisdiction ordinarily depends on the facts as they exist when
the complaint is filed.” (quoting Newman-Green, Inc. v. Alfonzo-
Larrain, 490 U.S. 826, 830 (1989))). The ERC produced the
“frustration of mission damages” document more than twenty
months after it filed its complaint and it submitted Kahl’s
declaration over six months after that. Despite the substantial
passage of time from the filing of its lawsuit, the ERC does not
spell out when it engaged in the specified activities. The
ambiguity is compounded by Kahl’s declaration, which suggests
that the ERC has only begun to implement counteraction
programs and has yet to complete others. See Kahl Decl. ¶¶ 29-
34. Although we do not foreclose the possibility that such costs
could suffice to show injury in fact, as presented by the ERC
five components: accessibility-related counseling and advocacy,
accessibility testing and monitoring, accessibility education and
outreach, advertising and audits/reports. Activities identified in the
Kahl declaration include increased educational and counseling efforts,
“an accessibility advertising campaign,” “designing a housing
accessibility self-advocacy toolkit” and designing “fact sheets for
accessibility guidelines for developers.” Kahl Decl. ¶¶ 23, 28-34.
5
Because we conclude the ERC does not have standing on the
full record, Post’s motion to strike Kahl’s declaration is, as the district
court held, moot.
11
they do not. In short, neither document sets forth specific facts
demonstrating the ERC suffered an injury in fact that was actual
or imminent at the time it filed suit.6
Nor does the ERC identify any other record evidence that
demonstrates that it suffered an injury in fact near to the date of
the complaint. In fact, the record suggests that the only expenses
the ERC incurred that could be described as “actual or
imminent” in relation to the filing of the complaint are
investigation and litigation expenses. For instance, Bruce Kahn,
the ERC’s former executive director, stated in his deposition that
the ERC had diverted its resources to the investigation of, and
litigation against, Post, which prevented it from using those
resources for other purposes. Kahn Dep. 38:12-44:2, Oct. 3,
2007. Two other ERC employees—Arlene Corbin Lewis, the
communications and outreach manager, and Veralee Liban, also
a former executive director—stated in depositions that they were
unaware of any way in which Post had frustrated the ERC’s
mission or caused the ERC to divert resources. Lewis Dep.
101:8-17, Apr. 4, 2008; Liban Dep. 259:18-260:13, Apr. 18,
2008. Kahl, in his deposition, was similarly unable to identify
any injury suffered by the ERC other than the diversion of its
resources “to researching, investigating, testing, and now
litigating with Post Properties with respect to its discriminatory
actions.” Kahl Dep. 220:18-221:15, Apr. 23, 2008. Like the
testing in BMC, these alleged expenditures more closely
resemble “efforts at increasing legal pressure on” Post than they
do efforts to counteract Post’s alleged injury to the ERC’s
6
In fact, in December 2008—more than two years after the ERC
filed its complaint—counsel for the ERC stated that at least some, and
perhaps all, of the expenses listed in the “frustration of mission
damages” document had not yet been incurred. Tr. of Oral Arg. on
Defs.’ Mot. in Limine to Exclude Evidence at 23-24, Equal Rights
Ctr. v. Post, No. 1:06-cv-01991 (D.D.C. Mar. 17, 2009).
12
interest in promoting fair housing. BMC, 28 F.3d at 1277. The
ERC’s diversion of resources to the investigation of, and
resulting legal challenge to, Post’s alleged discriminatory
practices is a “self-inflicted” injury, not one attributable to Post.
See id. at 1276. Accordingly, the ERC has failed to demonstrate
that at the time it began this litigation it had suffered an injury in
fact sufficient to support standing. See Newman-Green, 490
U.S. at 830 (jurisdiction ordinarily determined as of time
complaint is filed); Doctors Nursing & Rehab. Ctr. v. Sebelius,
613 F.3d 672, 677 (7th Cir. 2010) (“[T]he general rule is that we
analyze jurisdiction based on the events at the time the case is
brought.” (internal quotation marks and brackets omitted)).7
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to Post.
So ordered.
7
Because we conclude the ERC lacks constitutional standing,
we need not address its prudential standing on its separate claim under
the ADA.
ROGERS, Circuit Judge, concurring: I concur in affirming
the grant of summary judgment to Post Properties, Inc. and its
affiliates (“Post”) for lack of constitutional standing by the
Equal Rights Center (“ERC”). At the summary judgment stage,
after the close of discovery, the ERC could not rely on mere
allegations of injury and it failed to “set forth by affidavit or
other evidence specific facts” establishing that the ERC had
suffered a legally cognizable injury in fact at the time it filed
suit against Post. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (internal quotation marks omitted) (quoting FED. R.
CIV. P. 56(e)). Such allegations were sufficient in Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982), and Spann v.
Colonial Village, Inc., 899 F.2d 24 (D.C. Cir.), cert. denied, 498
U.S. 980 (1990), because the proceedings were at the
preliminary motion to dismiss stage, and had not advanced to
summary judgment. See Lujan, 504 U.S. at 561; Sierra Club v.
EPA, 292 F.3d 895, 898–99 (D.C. Cir. 2002). The documentary
submissions by the ERC either did not identify when
expenditures were incurred or describe activities other than
those undertaken in pursuit of suing Post. See Op. at 11–13.
Nonetheless, in my view, Fair Employment Council of
Greater Washington v. BMC Marketing Corp., 28 F.3d 1268
(D.C. Cir. 1994), went too far in suggesting that “testing”
expenditures are necessarily self-inflicted injuries that cannot
suffice to show injury in fact for purposes of constitutional
standing, id. at 1276, and in holding that the deflection of an
organization’s time and money from its counseling programs “to
increase legal pressure” directed at discrimination are
insufficient, id. at 1276–77. The court rejected as a matter of
logic, see id. at 1277, the Seventh Circuit’s approach in Village
of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990),
which acknowledged the practical realities of how organizations
work to combat discrimination. The Seventh Circuit held that
even when a fair housing organization’s other activities had not
2
been impaired by the defendant’s discriminatory practices, “the
only injury which need be shown . . . is deflection of the
agency’s time and money from counseling to legal efforts
directed against discrimination.” Id. at 1526. This standard, the
court explained, was consistent with Havens because “[t]hese
are opportunity costs of discrimination, since although the
counseling is not impaired directly there would be more of it
were it not for the defendant’s discrimination.” Id. at 1526.
Be that as it may, BMC is binding in this circuit and, absent
en banc review by this court or a Supreme Court decision on
point, organizations must prepare their documentary showings
at the post-discovery summary judgment stage to avoid the
effects of the limitation established by BMC in “reject[ing] the
. . . suggestion that the mere expense of [‘]testing[’] [the
defendant] constitutes ‘injury in fact’ fairly traceable to [the
defendant’s] conduct.” 28 F.3d at 1276. Today, the court reins
in BMC’s reach by identifying the questions a district court must
ask, see Op. at 10, and re-emphasizing that “the ERC’s alleged
diversion of resources to programs designed to counteract the
injury to its interest in promoting fair housing could constitute
[the requisite] injury,” id. Such a diversion might be based on,
or the result of, research, investigation, or “testing” necessary to
design and implement such programs. This, in my view, is a
step in the right direction.
Accordingly, I concur.