UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EQUAL RIGHTS CENTER, )
)
Plaintiff, )
)
v. ) Civil Case No. 06cv1991 (RJL)
)
POST PROPERTIES, INC. and POST GP )
HOLDINGS, INC. and POST )
APARTMENTS HOMES, L.P., )
)
Defendants, )
)
and )
)
UNITED STATES OF AMERICA, )
)
Movant. )
MEMORA~- OPINION
(SeptemberZ 2009) [#121, #123]
The plaintiff, Equal Rights Center ("ERC"), claims the defendants (collectively,
"Post") have designed, constructed, and operated residential complexes in a manner
making them inaccessible for persons with disabilities in violation of the Fair Housing
Act ("FHA") and the Americans with Disabilities Act ("ADA"). Before this Court is
Post's Motion for Summary Judgment and ERC's Motion for Partial Summary Judgment.
Having reviewed the pleadings and the entire record, the Court concludes that ERC lacks
the necessary standing to bring this action and therefore GRANTS Post's motion and
DENIES ERC's motion.
BACKGROUNDl
Post owns and manages fifty-nine apartment communities, with more than 21,000
apartment units located in five states and the District of Columbia. (Mem. of Points and
Auth. in Support ofDef.s' Mot. for Summ. J. [Dkt. #121] ("Def.s' Mot.") (filed under
seal) at 1.) ERC is a comprehensive civil rights organization dedicated to, among other
causes, fair housing opportunities for everyone. (Mem. of Points and Auth. in Support of
PI.'s Opp'n to Def.s' Mot. for Summ. J. ("PI.'s Opp'n") (filed under seal, notice at Dkt.
#141) at 4.) In its complaint, filed in November 2006, ERC alleged that Post designed,
constructed, and operated its complexes in a manner making them inaccessible to persons
with disabilities in violation of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq., and Title
III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq. (CompI. [Dkt. #1-
3] ~ 2.) Not surprisingly, Post strongly disagrees, contending instead "its properties are
accessible to and usable by persons with disabilities," (Def.'s Mot. at 15), and that its
alleged failure to comply with the FHA's "safe harbor" provisions does not establish
otherwise, (id. at 3).
On January 29,2007, prior to the commencement of discovery in this case, Post
filed a Motion to Dismiss and a Motion for Partial Summary Judgment. (Mot. to Dismiss
[Dkt. #10]; Mot. for Partial Summ. J. [Dkt. #11].) In its motions, Post alleged, among
IFor additional background, see this Court's opinion denying ERC's Motion for a
Preliminary Injunction, Equal Rights Center v. Post Properties, Inc., 522 F. Supp. 2d 1 (D.D.C.
2007).
2
other things, that ERC lacked standing. While these motions were pending, ERC filed a
Motion for a Preliminary Injunction on April 18,2007, seeking an order prohibiting Post
from selling a portion of its units until this litigation was resolved. (Mot. for Prelim. Inj.
[Dkt. #27] at 1.) The Court denied Post's motion to dismiss in June 2007. 2 (Minute
Order, 06114107.) The following month it denied ERC's motion for a preliminary
injunction on July 25,2007. Equal Rights Center v. Post Properties, Inc., 522 F. Supp.
2d 1, 6 (D.D.C. 2007).
ANALYSIS
A plaintiffs standing to bring a suit is a "threshold question in every federal case."
Warth v. Seldin, 422 U.S. 490, 498 (1975). ERC, as the party invoking this Court's
jurisdiction, has the burden to prove standing. Lujan v. Defenders of Wildlife, 504 U.S.
555,561 (1992). Generally plaintiffs must establish both constitutional and prudential
standing requirements. Constitutional standing under Article III "requires, at the
'irreducible constitutional minimum,' that the litigant has suffered a concrete and
2Although this Court, in denying Post's earlier motion to dismiss, concluded ERC pled
facts sufficient to establish organizational standing, on December 17, 2008, after the completion
of discovery, Post filed the instant Motion for Summary Judgment, contending therein that
ERC's complaint must be dismissed because ERC was not able to establish the necessary injury
resulting from Post's conduct necessary to establish constitutional standing for the organization.
(Def.s' Mot. at 17-29.) For the reasons set forth in the opinion, the Court agrees. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) (affirming a denial of a motion to dismiss on
standing grounds, but noting that the district court should dismiss the complaint if the plaintiffs
could not "make more definite the allegations of the complaint"); Fair Employment Council of
Greater Washington, Inc. v. BMC Mktg. Corp, 28 F. 3d 1268, 1277 (D.C. Cir. 1994) (stating that
"[a]s this case proceeds, the [plaintiff] will have to provide support for its claim" that it suffered
injury as a result of the defendant's actions).
3
particularized injury that is actual or imminent, traceable to the challenged act, and
redressable by this [C]ourt." Abigail Alliance for Better Access to Developmental Drugs
v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) (quoting Lujan, 504 U.S. at 560)
(internal citation omitted). Prudential standing requirements are "not exhaustively
defined," but they "encompass[] the general prohibition on a litigant's raising another
person's legal rights, the rule barring adjudication of generalized grievances more
appropriately addressed in the representative branches, and the requirement that a
plaintiff s complaint fall within the zone of interests protected by the law invoked." Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (internal quotation omitted).
Despite the general requirements of prudential standing, however, plaintiffs
alleging violations of the FHA need not establish prudential standing. The Supreme
Court has stated that "Congress intended standing under [the FHA's enforcement
provision] to extend to the full limits of Art. III." Havens, 455 U.S. at 372 (internal
quotation omitted). Courts, therefore, "lack the authority to create prudential barriers to
standing in suits brought under that section." Id. Therefore, for purposes of its FHA
action, ERC need only establish constitutional standing.
As an organization, ERC can establish constitutional standing either "on its own
behalf, or on behalf of its members." Abigail A lliance for Better Access to
Developmental Drugs, 469 F.3d at 132 (internal citations omitted). However, since ERC
4
does not claim it has standing on behalf of its members, (PI.' s Opp 'n at 21-29), the Court
will focus exclusively on ERC' s standing as an organizational plaintiff.
Organizational plaintiffs can establish they suffered injury in fact traceable to the
defendant's conduct if a defendant's actions "perceptibly impaired" the organization's
activities. Havens, 455 U.S. at 379. Thus, in Havens, the Supreme Court held that an
organizational plaintiff that assisted minorities in gaining equal access to housing
established standing to challenge a real estate company's "steering" away of minority
renters. Id. The Court held that if, as alleged, the organization was required "to devote
significant resources to identify and counteract" the company's discrimination, the
defendant's steering practices had "perceptibly impaired [the plaintiffs] ability to provide
counseling and referral services ... , [and] there can be no question that the organization
suffered injury in fact." Id.; see also Abigail Alliance for Better Access to Developmental
Drugs, 469 F.3d at 133.
Based on Havens, our Circuit Court has found an organizational plaintiff had
standing to challenge a defendant's discriminatory housing advertisements because the
advertisements required the plaintiff to increase its "education and counseling ... to
identify and inform minorities, steered away from defendants' complexes by the
challenged ads, that defendants' housing is by law open to all." Spann v. Colonial
Village, Inc., 899 F.2d 24,28-29 (D.C. Cir. 1990). Additionally, "[e]ducational programs
might complementarily be necessary to rebut any public impression the advertisements
5
might generate that racial discrimination in housing is permissible." Id. Likewise, our
Circuit Court held another organizational plaintiff providing counseling services had
standing to challenge a defendant's discriminatory actions that "might increase the
number of people in need of counseling [and] ... may have reduced the effectiveness of
any given level of outreach efforts." Fair Employment Council of Greater Washington,
Inc., 28 F. 3d at 1276. Additionally, in Humane Society v. Us. Postal Service, one of my
colleagues found that the Humane Society had established standing to challenge a
decision of the postal service on the basis that the Humane Society was injured by the
decision because it created "the need to care for animals on an emergency basis." 609 F.
Supp. 2d 85, 91 (D.D.C. 2009).
Organizational plaintiffs, however, will not be able to establish the injury
necessary for constitutional standing when it consists merely of the impact on its activities
caused by their willful diversion of their resources in response to the defendants' conduct.
As our Circuit has explained:
The [Havens] Court did not base standing on the diversion of resources from
one program to another, but rather on the alleged injury that the defendants'
actions themselves had inflicted upon the organization's programs. To be sure,
the Court did mention the "drain on the organization's resources." Yet this
drain apparently sprang from the organization's need to "counteract" the
defendants' assuredly illegal practices, and thus was simply another
manifestation of the injury that those practices had inflicted ....
Fair Employment Council of Greater Washington, 28 F.3d at 1277 (emphasis added).
"The mere fact that an organization redirects some of its resources to litigation and legal
6
counseling in response to actions or inactions of another party is insufficient to impart
standing upon the organization." Nat 'I Taxpayers Union, Inc. v. United States, 68 F.3d
1428, 1434 (D.C. Cir. 1995) (quoted in parenthetical, quoted citation omitted).
In fact, our Circuit Court "explicitly reject[ ed] [a plaintiff s] suggestion that the
mere expense of testing [a defendant] constitutes 'injury in fact' fairly traceable to [the
defendant's] conduct." Fair Employment Council of Greater Washington, 28 F.3d at
1276. Any injury from such testing is not traceable to the defendant's conduct, but "self-
inflicted; it results not from any actions taken by [the defendant], but rather from the
[plaintiff s] own budgetary choices." Id. (emphasis added).
While ERC broadly alleges Post's actions "directly interfered with the ERC's
existing counseling, education, and advocacy programs and activities," (Pl.'s Opp'n at
25), discovery has revealed that any injury ERC suffered was due to its own decision to
investigate Post. (See Pl.'s Statement of Undisputed Facts [Dkt. # 123-10] ~ 113 (noting
that Ezinwanne Hawkins and Rebecca Crootof "testified that because of [the irJ work on
the Post investigation, [they were] unable to" perform various ERC activities).) Indeed,
ERC essentially concedes its sole injury occurred as the result of its decision to
investigate Post. In that regard, it specifically noted that it "was forced to expend time,
resources, and personnel to conduct a more in-depth nationwide investigation of Post, in
order to identify the extent and effect of Post's illegal practices so that it could tailor its
counseling, education, and advocacy efforts to effectively combat the problem." (Id.)
7
Notwithstanding these points raised by Post, ERC argues it has still established
constitutional standing because its investigation of Post was not necessarily in
anticipation of litigation. In that regard, the Executive Director of ERC testified that
testing is not a "tool to create litigation," but a tool to "identify whether discriminatory
conduct exists" and "the extent of the problem." (Decl. of Donald Khal (filed under seal),
~~ 9-10.) ERC then uses the information obtained in the investigation to determine
whether litigation, or other action, is the best manner in which to combat the
discrimination. (Id. ~ 10.)
In making this argument, however, ERC presumes that any injury beyond litigation
expenses is sufficient to establish organizational standing. It is not. ERC still needs to
establish that the injuries it suffered were not due to a self-inflicted diversion of
resources. "[Q]uintessentially ... strategic choice[s]," of course, are not limited to
litigation expenses. See Nat 'I Treasury Employees Union, 929 F. Supp. at 489. For
example, organizational plaintiffs cannot establish injury that is fairly traceable to
defendants' conduct merely by deciding to "devote resources to identify and counteract
misinformation," Am. Farm Bureau v. Us. EPA, 121 F. Supp. 2d 84, 100 (D.D.C. 2000),
by negotiating payments with a defendant, Long Term Care Pharm. Alliance v.
UnitedHealth Group, Inc., 498 F. Supp. 2d 187, 189-90, 191-92 (D.D.C. 2007), or by
choosing to redirect lobbying efforts, Nat 'I Treasury Employees Union, 929 F. Supp. 2d
at 489.
8
Regardless of whether ERC's investigation was an inherently pre-litigation
exercise, the record is clear that ERC chose to redirect its resources to investigate Post's
allegedly discriminatory practices. ERC has thus not suffered an injury, to date,
traceable to Post's conduct within the meaning of Article III. See id. Indeed, "[w]ere an
association able to gain standing merely by choosing to fight a policy that is contrary to its
mission, the courthouse door would be open to all associations." Long Term Care
Pharm. Alliance, 498 F. Supp. at 192. As ERC has failed to establish the irreducible
constitutional minimum standing requirements, ERC lacks standing to bring both its FHA
and its ADA claims. As a result, this Court will GRANT Post's Motion for Summary
Judgment and DENY ERC's Motion for Partial Summary Judgment. An Order consistent
with this Memorandum Opinion is attached.
United States District Judge
9