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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-999
EQUAL RIGHTS CENTER, APPELLANT,
v.
PROPERTIES INTERNATIONAL,
and
ERNEST BANKS, APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-1356-13)
(Hon. Michael L. Rankin, Trial Judge)
(Argued May 8, 2014 Decided February 26, 2015)
Peter D. Isakoff, with whom Gary A. Coad and Adam B. Banks were on the
brief, for appellant. Megan K. Whyte de Vasquez and Robert M. Bruskin,
Washington Lawyers’ Committee for Civil Rights and Urban Affairs, were also on
the brief for appellant.
Deborah Murrell Whelihan for appellees.
Before FISHER and MCLEESE, Associate Judges, and PRYOR, Senior Judge.
PER CURIAM: Appellant Equal Rights Center (ERC), a non-profit advocacy
organization, filed a complaint against appellees Ernest Banks and Properties
2
International, alleging a violation of the District of Columbia Human Rights Act
(DCHRA), D.C. Code §§ 2-1401.01 to 2-1404.04 (2012 Repl.). The trial court
dismissed the complaint, concluding that appellant lacked standing to bring the
claim. We reverse and remand for further proceedings consistent with this
opinion.
I. Factual Background
Appellant ERC describes itself as “a national non-profit civil rights
organization . . . [which] works nationally to promote equal opportunity in
housing, employment, and access to public accommodations and government
services for all protected classes under federal, state, and local laws.” It provides
“guidance, information, and assistance” to protect individuals seeking housing in
the Washington, D.C., area, and offers training for the real estate industry on fair
housing law.
Appellant also investigates alleged housing discrimination, in part by
tracking real estate listings, which led it to a listing appellees placed on the
Metropolitan Regional Information Systems (MRIS) website. The listing
advertised an apartment for $934.00 in monthly rent and contained the following
language: “Section 8 and other vouchers or certificates [will require] additional
3
cost.” This language, as the trial court explained, violates the DCHRA’s
prohibition against discrimination based on source of income.
Properties International is a property management, maintenance, and real-
estate leasing firm, and Ernest Banks is the owner of, and a broker for, Properties
International. Appellees “admit that as a business, they currently manage, care
for[,] and offer for lease the property referenced in” the complaint.
ERC alleged that, after discovering the listing, it sent two certified letters;
one to appellee Banks and another to appellee Properties International. Its intent in
sending the letters was “to inform [appellees] of their unlawful conduct, to educate
them on their responsibilities under the DCHRA, and to seek their cooperation in
collaborating with the ERC to address their discriminatory conduct.” In an attempt
to negotiate a settlement, appellant prepared a draft agreement in which appellant
demanded that all employees of Properties International “be required to complete a
fair housing training course . . . [for a sum of money] to be invoiced by the ERC
and paid by Properties International.” The parties failed to reach an agreement,
and on February 15, 2013, appellant filed suit in the Superior Court under the
DCHRA.
4
ERC’s complaint alleged that appellees had injured it by “interfering with its
mission, efforts, and programs that are intended to bring about equality of
opportunity in housing.” To counteract appellees’ unlawful action, ERC asserted,
it had “committed scarce resources, including substantial staff time, to identify
complainants, investigate the extent of defendants’ discriminatory actions, engage
in an education and outreach campaign, and develop and disseminate educational
materials.” Appellees’ actions “have frustrated and continue to frustrate the ERC’s
mission and purpose,” and required ERC “to divert resources from other planned
anti-discrimination programs involving education, outreach, and testing” to
respond to appellees’ listing. ERC further alleged appellees’ actions would
continue to injure it in numerous ways.
Appellant sought the following relief: (1) a declaration that appellees
violated D.C. Code § 2-1402.21 (2012) by engaging in discrimination based on
source of income, (2) an injunction preventing appellees from charging
discriminatory rates or advertising that they do so and ordering appellees to
undertake “such remedial actions as are necessary to ameliorate [their] past illegal
discriminatory conduct,” (3) monetary damages, (4) attorneys’ fees, and
(5) punitive damages.
5
On April 17, 2013, appellees filed a motion for judgment on the pleadings
pursuant to Super. Ct. Civ. R. 12 (c). About a month later, they filed a “Motion for
Consolidation,” asking that their Rule 12 (c) motion be treated as a motion for
summary judgment. In doing so, appellees noted that they relied on various
documents attached to their answer and to the motion for judgment on the
pleadings.1
The trial court heard oral arguments on the pending motions, but the record
is bereft of any indication that it was treating appellees’ motion as one for
summary judgment. Nor did it conduct an evidentiary hearing. During a July 26,
2013, scheduling conference, the trial court dismissed the complaint for lack of
standing, concluding that appellant had failed to plead sufficient injury in fact.
The trial court reasoned that under Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977), ERC had not been injured in any substantial way. We
discuss the court’s ruling in more detail below.
1
They pointed out that Super. Ct. Civ. R. 12 (c) provides: “If, on a motion
for judgment on the pleadings, matters outside the pleadings are presented to and
not excluded by the Court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by
Rule 56.”
6
Appellant ERC contends the trial court erred in dismissing its complaint for
want of standing, arguing that the trial judge “impermissibly made factual findings
at odds with the allegations in the Complaint” and improperly grounded its
analysis on the Village of Arlington Heights decision.
II. Pleading Requirements Under Rule 8 (a)
Our jurisdiction requires that a complaint contain: “(1) a short and plain
statement of the grounds upon which the Court’s jurisdiction depends . . . , (2) a
short and plain statement of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader seeks.” Super. Ct. Civ.
R. 8 (a). Historically, we have identified ourselves as a notice pleading
jurisdiction, see Taylor v. District of Columbia Water & Sewer Auth., 957 A.2d 45,
50 (D.C. 2008), but we have adopted the pleading standard articulated by the
Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Potomac Dev. Corp. v. District of Columbia, 28
A.3d 531, 544 (D.C. 2011). “To survive a Rule 12 (b)(6) or 12(c) motion, a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Grimes v. District of Columbia, 89 A.3d 107,
112 (D.C. 2014) (internal quotation marks omitted).
7
At the pleading stage, plaintiff’s burden in pleading injury is not onerous.
Grayson v. AT & T Corp., 15 A.3d 219, 245-46 (D.C. 2011) (en banc); Equal
Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011). We have
held that “a complaint that contains ‘general factual allegations of injury resulting
from the defendant’s conduct may suffice[.]’” Grayson, 15 A.3d at 245 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The sufficiency of such
allegations of injury must be tested against the case law defining injury in fact.
Grayson, 15 A.3d at 246.
We review de novo the dismissal of a complaint for lack of standing. Padou
v. District of Columbia, 77 A.3d 383, 388 (D.C. 2013). Like the trial court, we
accept the factual allegations in the complaint as true and draw all inferences from
those factual allegations in the plaintiff’s favor. Grayson, 15 A.3d at 228. The
court may not consider matters outside the pleadings unless it treats the motion as
one for summary judgment. Grimes, 89 A.3d at 111.
III. Standing for Individuals and Organizations
“‘Standing is a threshold jurisdictional question which must be addressed
prior to and independent[ly] of the merits of any party’s claim.’” W.H. v. D.W., 78
8
A.3d 327, 337 (D.C. 2013) (quoting Grayson, 15 A.3d at 229). It is generally
required that a party seeking to bring a claim must allege “. . . a personal stake in
the outcome of the controversy” as to “justify exercise of the court’s remedial
powers on his behalf.” W.H., 78 A.3d at 337 (quoting Grayson, 15 A.3d at 229
n.19 (quotation marks omitted)). A party has such a “personal stake” only if: (1)
he or she has suffered “injury in fact”—an actual or imminent, concrete and
particularized, invasion of a legally protected interest; (2) the injury is “fairly . . .
trace[able]” to defendant’s challenged actions; and (3) it is “likely . . . the injury
will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (quotation
marks omitted); see also Padou, 77 A.3d at 389. The redressability condition
implies that plaintiff’s injuries may give it standing to seek certain types of relief
but not others. For example, allegations of past injury may give a plaintiff
standing to seek damages, but a plaintiff seeking forward-looking relief, such as an
injunction, must allege facts showing that the injunction is necessary to prevent
injury otherwise likely to happen in the future. See City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983); see also Fair Emp’t Council of Greater Washington v.
BMC Mktg. Corp., 28 F.3d 1268, 1272 (D.C. Cir. 1994).
Appellant is an organization, and organizations, like individuals, have
legally protected interests. An organization may file suit in its own right “so long
9
as it satisfies the constitutional requirements and prudential prerequisites of
traditional standing analysis.” D.C. Appleseed Ctr. for Law & Justice v. District of
Columbia Dep’t of Ins., Sec., & Banking, 54 A.3d 1188, 1205-06 (D.C. 2012)
(footnote omitted). We have recognized, several times, that the DCHRA presents
no additional prudential barriers.2 See Exec. Sandwich Shoppe, Inc. v. Carr Realty
Corp., 749 A.2d 724, 732-33 (D.C. 2000); see also Molovinsky v. Fair Emp’t
Council, 683 A.2d 142, 146 (D.C. 1996).
However, an organization’s mere interest in a problem or its opposition to an
unlawful practice is not sufficient to demonstrate injury in fact, Sierra Club v.
Morton, 405 U.S. 727, 739 (1972), nor is a simple setback to an organization’s
abstract social interests. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
(1982); see also D.C. Appleseed Ctr., 54 A.3d at 1207. “[T]he question of
standing turns on whether the organization’s activities in pursuit of [its] mission
have been affected in a sufficiently specific manner as to warrant judicial
intervention.” D.C. Appleseed Ctr., 54 A.3d at 1206. This requires a showing that
the defendant’s unlawful actions have caused a “concrete and demonstrable injury
2
We note that the Supreme Court has recently said that “prudential standing
is a misnomer[,]” at least as applied to the zone-of-interest inquiry. Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). We need
not discuss the implications of this statement, however, as the DCHRA is co-
extensive with standing under Article III, and we reverse on grounds other than
prudential standing.
10
to the organization’s activities—with the consequent drain on the organization’s
resources.” Havens Realty Corp., 455 U.S. at 379. Generally, when an
organization is forced to divert resources to counteract the effects of another’s
unlawful acts, it has suffered a sufficiently concrete injury to bestow standing. Id.;
Equal Rights Ctr. v. Post Props., 633 F.3d at 1142.
The District of Columbia Circuit has “‘applied Havens Realty to justify
organizational standing in a wide range of circumstances.’” Am. Soc’y for the
Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir.
2011) (quoting Abigail Alliance for Better Access to Developmental Drugs v. Von
Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006)). We, too, have applied Havens
Realty, holding on several occasions that organizations have standing to challenge
unlawful practices they oppose, provided the practices burden them in a
sufficiently specific way. See, e.g., D.C. Appleseed Ctr., 54 A.3d at 1208 (legal
center had standing under DCAPA to petition for review of an agency decision that
would force it to “devote significant additional resources to advocate on behalf of”
low income residents facing significant unmet healthcare needs); Molovinsky, 683
A.2d at 147 (organization able to establish standing by showing defendant’s
conduct required it to increase counseling of sex discrimination victims and
increase educational efforts “to counteract the negative message, sent to the public
11
by” defendant’s sexual harassment); see also Executive Sandwich Shoppe, Inc.,
749 A.2d at 733.3
IV. Dismissal of the Complaint
This brings us to the crux of the appeal: did the trial court properly dismiss
appellant’s complaint for lack of standing? We conclude the trial court erred, and
reverse for the following reasons.
The trial court concluded that appellant’s complaint failed to plead injury in
fact and, arguably, failed to show that a favorable ruling would redress harm
suffered by appellant. First, the court explained that, in responding to appellees’
listing, appellant was “simply doing what you do. That’s not an injury. If you
weren’t doing that you wouldn’t have any existence.” Second, the trial court did
3
The D.C. Circuit has held, and we have acknowledged, that “there are
‘two important limitations on the scope of standing under Havens.’” D.C.
Appleseed Ctr., 54 A.3d at 1209 (quoting Am. Soc’y for the Prevention of Cruelty
to Animals, 659 F.3d at 25). First, there must be “‘direct conflict between the
defendant’s conduct and the organization’s mission.’” Id.; Nat’l Treasury Emps.
Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996). The second
limitation prohibits an organization from “‘manufactur[ing] the injury necessary to
maintain a suit from its expenditure of resources on that very suit.’” D.C.
Appleseed Ctr., 54 A.3d at 1209 (quoting Am. Soc’y for the Prevention of Cruelty
to Animals, 659 F.3d at 25 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27
(D.C. Cir. 1990))).
12
not see how appellant could “say that you’ve had to spend substantial resources” to
respond to appellees’ listing. Appellees “ha[d] one property,” which had now been
rented to someone with a Section 8 voucher, and they apparently were no longer
advertising “that way.” Third, ERC “can’t show anything but a self-inflicted
injury.” And finally, appellant was seeking declaratory and injunctive relief but
had presented no evidence that appellees would “continue to do the wrong.”
Although the trial judge was thoughtful in dismissing the case, he did not
expressly apply the guidance of the seminal cases discussed herein. Havens Realty
and its progeny are more directly on point than the decision in Village of Arlington
Heights. Moreover, it appears that the court neither accepted the truth of ERC’s
allegations nor engaged in the type of fact-finding permitted to resolve a question
of jurisdiction. See infra.
The court did appreciate that diversion of resources does not necessarily
confer organizational standing because some types of expenditures do not qualify.
See Friends of Tilden Park, 806 A.2d at 1207 (expenses for “legal counseling” and
litigation do not confer standing). In this respect, therefore, the trial court properly
considered whether ERC’s diversion of its resources was a “self-inflicted injury.”
But ERC alleged that it had “committed scarce resources . . . to counteract
13
[appellees’] discriminatory conduct.” And, at this stage of the litigation, the court
was obliged to accept these allegations as true.
Instead of focusing entirely on the voluntariness of the
ERC’s diversion of resources, . . . the [trial] 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 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.
Equal Rights Ctr. v. Post Props., 633 F.3d at 1140 (ERC’s diversion of resources
in that case was a “self-inflicted” injury that did not confer standing).
We conclude that the complaint in this case, although scanty in describing
the resources diverted, was sufficient to survive scrutiny under Rule 12 (b)(6) or
Rule 12 (c). But this holding does not necessarily end the inquiry. “Standing
analysis is different ‘at the successive stages of the litigation.’” Grayson, 15 A.3d
at 232 (quoting Lujan, 504 U.S. at 561). “Thus, the examination of standing in a
case that comes to us on a motion to dismiss is not the same as in a case involving
a summary judgment motion; the [plaintiff’s] burden of proof is less demanding
14
when the standing question is raised in a motion to dismiss[,]” Grayson, 15 A.3d at
232, or, as here, in a motion for judgment on the pleadings. See Equal Rights Ctr.
v. Post Props., 633 F.3d at 1141 n.3 (holding that ERC did not have standing, but
emphasizing that court was reviewing grant of motion for summary judgment filed
after the close of discovery); id. at 1142-43 (Rogers, J., concurring) (same). In this
context, the court may use tools that are not normally available when it is ruling on
a motion to dismiss or a motion for judgment on the pleadings. When jurisdiction
over a case depends on a factual question, the court may independently review the
evidence and conduct additional fact-finding to determine whether it has
jurisdiction. Matthews v. Automated Bus. Sys. & Servs., Inc., 558 A.2d 1175, 1179
(D.C. 1989); Grayson, 15 A.3d at 232 & n.28. “Generally, the determination of
jurisdictional facts is a matter for the court, not a jury, . . . and the court has broad
discretion in determining how to proceed in finding such facts . . . .” Matthews,
558 A.2d at 1179-80 (citation omitted). Once the court has completed fact-finding
on a jurisdictional question, it may of course base its ruling on all of the materials
of record, including the facts found. Matthews, 558 A.2d at 1179.
15
IV. Conclusion
For the aforementioned reasons, we reverse the trial court’s ruling
dismissing appellant’s complaint and remand for further proceedings consistent
with this opinion.
It is so ordered.