File Name: 06a0900n.06
Filed: December 15, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-5862
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FAIR HOUSING COUNCIL, Inc., et al., ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiffs-Appellees, ) COURT FOR THE
) WESTERN DISTRICT OF
v. ) KENTUCKY
) (No. 3:98-CV-00630)
VILLAGE OF OLDE ST. ANDREWS, Inc., et al., )
)
Defendants-Appellants. )
)
)
BEFORE: RYAN, COOK, Circuit Judges; and GWIN, District Judge.*
Gwin, District Judge,
Plaintiffs Fair Housing Council and Center for Accessible Living allege that the Defendants,
the Village of Olde St. Andrews, Inc., WKB Associates, Inc., and Kenneth R. Brown, engaged in
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.
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disability discrimination in their design and construction of multifamily residential developments.
In support of this allegation, the Plaintiffs say the Defendants designed and constructed residences
that were not accessible to handicapped persons as required by the Fair Housing Amendments Act
of 1988 (“Fair Housing Act”).
After trial, the district court concluded that Defendants engaged in unlawful discrimination
and ordered the Defendants to perform remedial construction on the developments. Defendant WKB
appeals, arguing that (1) the Plaintiffs lack standing to sue, (2) even if the Plaintiffs had standing,
the applicable statute of limitations bars their claim, and (3) that the district court committed error
in failing to allow the Defendant to demonstrate compliance by other means than those set forth by
the HUD guidelines. 44 Fed. Reg. at 9472-9515. For the reasons that follow, we AFFIRM in part
and REVERSE in part the decision of the district court.
I. Background
The Plaintiff Fair Housing Council operates as a nonprofit corporation to promote equal
housing availability for, among others, disabled individuals. The Center for Accessible Living is a
nonprofit corporation that advocates independent living for disabled people.
The Defendant-Appellant WKB is a Kentucky corporation that builds real estate
developments, principally in Louisville, Kentucky . Between 1993 and 2001, WKB constructed the
three multifamily housing developments at issue in this case. Those developments include the
Village of Olde St. Andrews, the Village of Deer Creek, and Greenhurst Condominiums.
After its construction, the Fair Housing Council observed steps leading to the residences at
the Defendant Village of Olde St. Andrews that it believed violated the Fair Housing Act.
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Thereafter, the Fair Housing Council employed disabled individuals to enter and inspect the property
for Fair Housing Act violations. The Center for Accessible Living provided these “testers” and the
Fair Housing Council trained, paid, and debriefed them. After identifying a number of potential
violations, the Fair Housing Council and the Center for Accessible Living sued Olde St. Andrews,
WKB, and the development’s architect, Kenneth Brown. Plaintiffs later added claims against the
Greenhurst Condominiums and the Village of Deer Creek, two other complexes designed by Brown
and owned by WKG. Before trial, Brown settled the claims made against him.
In motions for summary judgment, the Defendants argued that Plaintiffs lacked standing to
sue and that the statute of limitations stopped the claims as against Greenhurst. Additionally, the
Defendants argued that they should have had the opportunity to demonstrate compliance with the
Fair Housing Act by means other than those provided by the HUD guidelines. The district court
denied summary judgment, finding that Sixth Circuit precedent gave standing. After a bench trial
resulted in a decision for Plaintiffs, WKB appealed.
With its appeal, the Defendant argues that the district court erred in holding that Plaintiffs
had standing to sue, that the statute of limitations barred Plaintiffs’ claims in part, and that the
district court overly deferred to HUD’s building guidelines. We now consider these arguments.
II. Standard of Review
We review a district court’s denial of summary judgment de novo. Frazier v. Honda of Am.
Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). Summary judgment is only appropriate when the
evidence submitted shows “that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)). In seeking summary
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judgment, the moving party has the initial burden of showing the absence of a genuine issue of
material fact as to an essential element of the nonmoving party's case. Waters v. City of Morristown,
242 F.3d 353, 358 (6th Cir. 2001). A fact is material if its resolution will affect the outcome of the
lawsuit. Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir. 1998) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding whether the moving party has met this
burden, a court must view the facts and all inferences drawn from them in the light most favorable
to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
III. Discussion
With this appeal, Defendant-Appellant WKB argues that the district court erred in finding
that the Plaintiffs have standing and erred when it found that the statute of limitations does not bar
the Plaintiffs' claims. Additionally, the Defendants argue that the district court afforded
inappropriate deference to the HUD guidelines when determining whether or not WKB’s housing
developments complied with the Fair Housing Act. We address each argument below.
A. Standing
Article III of the United States Constitution limits the jurisdiction of this Court. Specifically,
Article III § 2 confers federal jurisdiction over “cases” and “controversies.” Standing is an important
element of the case or controversy requirement. To demonstrate standing under Article III, “[a]
plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). See
also Raines v. Byrd, 521 U.S. 811, 818-19 (1997).
Typically, the standing inquiry does not end with the Article III requirements. Instead, even
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where a plaintiff can show that its case falls within these constitutional bounds, the plaintiff must
also overcome prudential barriers on the exercise of federal jurisdiction. Warth v. Seldin, 422 U.S.
490, 498 (1975). However, because prudential limitations on jurisdiction are judicially self-imposed
rather than constitutionally mandated, Congress has the power to waive prudential barriers by statute.
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (“Congress may, by legislation,
expand standing to the full extent permitted by Art. III, thus permitting litigation by one ‘who
otherwise would be barred by prudential standing rules.’”) (quoting Warth, 422 U.S. at 501). With
regard to the Fair Housing Act, Congress has made a decision to afford standing to all litigants
within the Constitutional limits. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982);
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 9 (1979). As a result, the plaintiffs
in the instant case need only satisfy Article III requirements in order to demonstrate standing.
1. Circuit Court’s Power to Review Standing Issue
As an initial matter, the Plaintiffs argue that denial of summary judgment is not appealable
where, as in the instant case, “summary judgment is denied and the movant subsequently loses after
a full trial on the merits . . . ” Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990) (citing
Locricchio v. Legal Services Corp., 833 F.2d 1352 (9th Cir. 1987); Glaros v. H.H. Robertson Co.,
797 F.2d 1564 (Fed. Cir. 1986)). In Jarrett, 896 F.2d at 1016 n. 1, we found that despite the harm
that may flow from allowing a wrongful denial of summary judgment to go unreviewed, “it would
be even more unjust to deprive a party of a jury verdict after the evidence was fully presented, on the
basis of an appellate court’s review of whether the pleadings and affidavits at the time of the
summary judgement motion demonstrated the need for a trial.”
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Recognizing that this policy rational does not always apply, we have subsequently carved out
exceptions to the general rule. For example, in McPherson v. Kelsey, we held that a movant can
appeal the denial of summary judgment even after losing a trial on the merits where the issue on
appeal is purely one of law, such as governmental immunity. 125 F.3d 989, 995 (6th Cir. 1997).
Other circuits have recognized similar exceptions. See Banuelos v. Const. Laborers' Trust Funds,
382 F.3d 897, 902 (9th Cir. 2004) (“This general rule, however, does not apply to those denials of
summary judgment motions where the district court made an error of law that, if not made, would
have required the district court to grant the motion.”); Home Savings of America v. United States,
399 F.3d 1341 (Fed. Cir. 2005) (reviewing a district court’s denial of the government’s motion for
summary judgment for lack of standing even after a final judgment on the merits was entered for the
plaintiffs).
We find, however, that there is no need for us to now determine whether or not we may
appropriately review the district court’s denial of Defendant WKB’s motion for summary judgment
with regard to the issue of standing. This court may always address the issue of standing,
irregardless of the lower court’s treatment of that issue. See Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate court has a special obligation to ‘satisfy
itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.’”)
(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)).
2. Whether the District Court Erred in Determining the Plaintiffs had Standing
Defendant WKB argues that the Plaintiffs lack standing to sue because the Plaintiffs fail to
demonstrate any injury independent of the instant litigation that is fairly traceable to the allegedly
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discriminatory actions of the Defendants. Responding, the Plaintiffs claim that their investigation
into disability discrimination at the WKB properties caused them to divert substantial institutional
resources from other projects or standard activities.
Addressing these arguments on summary judgment, the district court found that the Plaintiffs
failed to present sufficient evidence to support their claim that they were forced to divert funds for
the WKB investigation to the detriment of other projects. However, applying this Circuit’s decision
in Hooker v. Weathers, 990 F.2d 913, 915 (6th Cir. 1993)1, the district court reluctantly found that
the Plaintiffs’ prelitigation investigation expenses related to the three testers that the Fair Housing
Council sent to the WKB properties were sufficient to confer standing. Defendant WKB now argues
that we should overturn Hooker. In the alternative, WKB claims that Hooker is fairly distinguishable
from the instant case and that even under the Hooker, the Plaintiffs lack standing.
a. Organizational Standing Under the Fair Housing Act
The United States Supreme Court dealt with the issue of organizational standing under the
Fair Housing Act in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In that case, a fair
housing organization brought suit against a realty corporation, alleging “racial steering” in violation
of the Fair Housing Act of 1968, 42 U.S.C. § 3604. In its complaint, the fair housing organization,
1
Therefore, FHCS “can establish standing by alleging a concrete and demonstrable injury, including an injury
arising from a ‘purportedly illegal action [that] increases the resources the group must devote to programs independent
of its suit challenging the action.’ ” Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644,
646 (6th Cir.1991) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.), cert. denied,498 U.S. 980, 111
S.Ct. 508, 112 L.Ed.2d 521 (1990)). According to the complaint, “Fair Housing Contact Service conducted an
investigation, and confirmed the facts and circumstances alleged [in the complaint].” FHCS devoted resources to
investigating the defendants' practices and alleges that it has confirmed that defendants do discriminate on the basis of
familial status. Therefore, FHCS has standing.”
Hooker v. Weathers, 990 F.2d 913 at 915 (6th Cir. 1993).
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HOME, alleged that it had “been frustrated by defendant’s racial steering practices in its efforts to
assist equal access to housing through counseling and other referral services . . . [and] had to devote
significant resources to identify and counteract the defendant’s [sic ] racially discriminatory steering
practices.” Id. at 378. Arguing that HOME lacked standing, the defendant moved to dismiss. The
district court granted the motion, finding that HOME failed to allege a direct injury sufficient to
confer standing. The Supreme Court reversed and held that the dismissal was wrong, stating:
[i]f, as broadly alleged, petitioners' steering practices have perceptibly impaired
HOME's ability to provide counseling and referral services for low-and
moderate-income homeseekers, there can be no question that the organization has
suffered injury in fact. Such concrete and demonstrable injury to the organization's
activities--with the consequent drain on the organization's resources--constitutes far
more than simply a setback to the organization's abstract social interests . . ..
Id. at 379.
Interpreting Havens, the circuit courts have reached varying conclusions about the showing
that an organization must make to demonstrate standing under the Fair Housing Act. Before
highlighting the different approaches, we first note that the circuits generally agree that an
organization meets Article III standing requirements where it can show that the defendant’s alleged
violations of the Fair Housing Act caused it to divert resources from other projects or devote
additional resources to a particular project in order to combat the alleged discrimination. See Fair
Housing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 78 (3rd Cir.
1998) (“In deciding organizational standing questions after Havens, appellate courts have generally
agreed that where an organization alleges or is able to show – depending on the stage of the
proceeding – that it has devoted additional resources to some area of its effort in order to counteract
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discrimination, the organization has met the Article III standing requirement.”).
The circuit courts differ, however, on the extent to which they will consider injury related
to litigation in reviewing standing. Several courts have taken a more restrictive approach, holding
that to show standing, an organization must demonstrate that it suffered a concrete injury that is
completely independent from the economic and non-economic costs of the litigation.2 See Spann
v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (“An organization cannot, of course,
manufacture the injury necessary to maintain a suit from its expenditure of resources on that very
suit. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article
III would present no real limitation.”); Fair Housing Council of Suburban Philadelphia v.
Montgomery Newspapers, 141 F.3d 71, 79 (3rd Cir. 1998) (“We align ourselves with those courts
holding that litigation expenses alone do not constitute damage sufficient to support standing.”);
Association for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation
Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“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.”); Walker v. City of Lakewood, 272
F.3d 1114, 1124 n.3 (9th Cir. 2001) (declining to consider “the time and money the [housing
organization] has expended in prosecuting this suit” in deciding if the organization had standing).
While following the restrictive approach, the Third Circuit has considered litigation expenses when
2
In these cases, the courts have found standing where the defendant's discriminatory actions forced the plaintiff
organization to expend resources apart from those dedicated to the litigation, such as where an organization poured
additional funds and manpower into a broad education initiative to combat the discrimination. See Spann, 899 F.2d at
27-28 (organization demonstrated that the defendant's racially discriminatory advertising forced it to expend additional
resources to educate the community about housing discrimination and counsel individuals facing such discrimination).
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concluding that an organization had standing where the organization “stopped everything else” in
order to devote attention to the lawsuit. Alexander v. Riga, 208 F.3d 419, 427 n. 4 (3rd Cir. 2000).
Other circuits take a more lenient approach, allowing organizations to prove standing by
showing that they diverted resources toward litigation to counteract the defendant’s housing
discrimination. For example, in Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir.
1990), the Seventh Circuit held “that only injury which needs be shown to confer standing on a fair
housing agency is deflection of the agency’s time and money from counseling to legal efforts
directed against discrimination.” There, the Court reasoned that the mere fact that the organization
lost the opportunity to provide additional or increased counseling because it had directed its
resources toward the lawsuit constituted a cognizable injury. Id. See also Ragin v. Harry Macklowe
Real Estate Co., 6 F.3d 898 (2nd Cir. 1993) (finding that the plaintiff housing organization had
standing based primarily on the significant resources the organization had to devote to investigating
the defendant’s alleged discriminatory actions and challenging these actions through litigation);
Arkansas ACORN Fair Housing, Inc. v. Greystone Development, Ltd. Co., 160 F.3d 433, 434-35
(8th Cir. 1998) (“While the deflection of an organization's monetary and human resources from
counseling or educational programs to legal efforts aimed at combating discrimination, such as
monitoring and investigation, is itself sufficient to constitute an actual injury, the injury must also
be traceable to some act of the defendant.”) (internal citations omitted).
The Sixth Circuit falls into the latter group, taking a similarly lenient approach. Though we
require a plaintiff to show some injury that is independent of the costs of litigation, we have
interpreted that standard narrowly, finding that costs related to prelitigation investigation can form
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the basis for standing. See Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc.,
943 F.2d 644, 646 (6th Cir. 1991); Hooker, 990 F.2d at 915.
In Housing Opportunities, 943 F.2d at 646, a housing organization sued a local newspaper,
alleging that the paper published discriminatory housing advertisements in violation of the Fair
Housing Act. Briefly discussing the issue of standing, the Housing Opportunities Court cited the
standard set forth in Spann, generally requiring the plaintiff to demonstrate “injury, including an
injury arising from a ‘purportedly illegal action [that] increases the resources the group must devote
to programs independent of its suit challenging the action.’” Id. (quoting Spann, 899 F.2d at 27)
(emphasis added). In Housing Opportunities, the plaintiff’s devotion of resources to investigate and
combat the defendant’s discriminatory advertising was found sufficient to confer standing. Id.
Although not explicitly stated, Housing Opportunities suggests that this Court does not preclude
consideration of the costs of litigation when determining standing, but additionally requires the
plaintiff to prove some type of injury beyond these costs.
We next revisited the issue of organizational standing under the Fair Housing Act in Hooker,
990 F.2d at 915. In that case, an individual, Richard Hooker, contacted a local fair housing
organization to complain of age discrimination at a local trailer park, alleging that the manager of
the trailer park refused to rent or sell trailers to young people or families with children. To
investigate the claim, the housing organization sent a tester to the trailer park to inquire about renting
a trailer. The manager refused to rent to the tester, telling her that she was too young. Based on this
investigation, the housing organization filed suit against the manager of the trailer park. The district
court dismissed the suit for lack of standing. On appeal, the Hooker Court reversed the dismissal.
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Holding that the act of sending a tester to investigate Hooker’s claim of discrimination was sufficient
to confer standing, the court stated, “FHCS devoted resources to investigating the defendants'
practices and alleges that it has confirmed that defendants do discriminate on the basis of familial
status. Therefore, FHCS has standing.” Id.
Recently, in an unpublished decision, Hughes v. Peshina, No. 02-3660, 2004 WL 187550
(6th Cir. 2004), we followed the Hooker Court’s holding. Just as in Hooker, the plaintiff housing
organization in Hughes followed up on a complaint of discrimination on the basis of familial status
by sending a tester to attempt to rent property from the defendants. When the tester faced similar
discrimination, the organization filed suit. Finding that the housing organization had “devoted its
efforts to investigating whether [the defendants] had violated the law, thus diverting its resources
away from the other housing services it provides and frustrating its mission of insuring fair housing
practices,” the Hughes Court found the housing organization had suffered an injury in fact sufficient
to confer standing. Id.
b. Reconsidering Hooker
Seeking reversal of the district court’s conclusion that Plaintiffs Fair Housing Council and
the Center for Accessible Living have standing, Defendant WKB first argues that we should overturn
Hooker, 990 F.2d at 915. However, this Court must adhere to the well-settled rule that “[r]eported
panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published
opinion of a previous panel. Court en banc consideration is required to overrule a published opinion
of the court.” 6th Cir. R. 206(c)). See also Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir.
2001); Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985) (“A
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panel of this Court cannot overrule the decision of another panel. The prior decision remains
controlling authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.”). Hooker
therefore remains controlling authority for this panel.
c. Do the Plaintiffs Lack Standing Even Under the Hooker Standard?
Under our Article III standing inquiry, a Plaintiff:
(1) must have suffered some actual or threatened injury due the to [sic] alleged illegal
conduct (the “injury in fact element”); (2) the injury must be fairly traceable to the
challenged action (the “causation element”); and (3) there must be a substantial
likelihood that the relief requested will redress or prevent [plaintiff]’s injury (the
“redressability element”).
Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 852 (6th Cir. 2002). The standing
dispute here centers on whether Plaintiffs suffered a cognizable injury in fact. The district court
concluded that the Plaintiffs suffered a sufficiently traceable injury because they incurred monetary
pre-litigation expenses or lost opportunity costs associated with the investigation. Specifically, the
court determined that, under the Sixth Circuit precedent of Hooker v. Weathers, 990 F.2d 913, 915
(6th Cir. 1993), such prelitigation costs and expenses conferred Article III standing on the Plaintiffs.
Because we conclude that the Fair Housing Council set forth sufficient evidence to
demonstrate that it suffered an injury that is both independent of the instant litigation and fairly
traceable to the discriminatory actions of the Defendants, we find that Plaintiff Fair Housing Council
had standing to bring this action. In contrast, because the Plaintiff Center for Accessible Living
presents no evidence that they did anything more than identify individuals that might serve as
potential testers, the Court finds that the Center for Accessible Living has not established proof that
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it suffered an injury in fact. Accordingly, we find that the Center for Accessible Living does not
enjoy standing to make claims in this action.
1. Fair Housing Council
As discussed above, the Hooker Court made clear that an organization suffers a concrete
injury sufficient to confer standing when it devotes resources to training and deploying testers to
investigate suspected instances of discrimination. The Fair Housing Council suffered precisely this
type of injury in the instant case.
Seeking to distinguish Hooker, Defendant WKB argues that the Fair Housing Council
received a fixed grant from HUD for the purpose of investigating housing discrimination through
the use of testers. Defendant WKB argues this receipt of HUD financing for testing differentiates
this case.3 In fact, WKB claims that the HUD funding required the Plaintiff to perform such tests
or it would forfeit future funding. However, the mere fact that the Fair Housing Council had already
allocated funds for the use of testers, does not mean that the use of a portion of those funds to
investigate WKB properties does not amount to a concrete injury.
While this Court has recognized that the diversion of funds from certain activities such as
counseling or education can be a sufficient injury to confer standing, it has not required a Plaintiff
to demonstrate a redistribution of funds in all cases. For example, the Hooker Court found that the
mere fact that the plaintiff had devoted resources to investigating the alleged discrimination was
3
The Fair Housing Council’s budget narrative work plan covering the time span at issue allocates $7,650 to pay
for approximately 255 test visits. (J.A. 289.) The budget does not specify whether of not it can be later amended to
reallocate funds.
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sufficient – it did not indicate what the plaintiff would have otherwise done with those resources,
nor suggest that the plaintiff would need prove that they cut other services due to the plaintiff’s
investigation. Moreover, almost anytime an organization such as the Fair Housing Council funds
a particular project, such as the WKB investigation, the pool of resources that it has to combat other
instances of discrimination grows smaller. The opportunity cost, the value of the opportunity
forgone by using funds on the Olde St. Andrews testing, is real. In our world of scarce resources,
every expenditure of money, time or other resources results in the loss of the benefit that would have
resulted if the same time or money had been spent on something else. If the Fair Housing Council
had not expended time and money on testing at Olde St. Andrews, it could have used those monies
for other testing.
Indeed, the Plaintiffs argue that as a result of the Fair Housing Council’s investigation of the
WKB properties, FHC used a significant portion of resources that would otherwise be available for
fighting disability discrimination. While not explicit, we find evidence of this shift in the Fair
Housing Council’s records during the time in question. For example, the final statement of work that
the Fair Housing Council submitted with its 2000 grant proposal shows a clear focus on disability
rights and the training and deployment of testers to investigate dwelling structures for accessibility
problems. (J.A. 353.) For a housing organization that traditionally monitored and investigated a
broad range of discriminatory actions, this new focus on disability discrimination very likely means
that the organization turned its attention away from other incidents of discrimination.
Defendant WKB next argues that the instant case is distinguishable from Hooker because the
Hooker plaintiff investigated the defendant trailer park only after receiving a complaint of
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discrimination, whereas the Fair Housing Council received no complaints of discrimination prior to
investigating the Village of Olde St. Andrews. Essentially, WKB suggests that any injury that may
stem from the Fair Housing Council’s investigation of WKB properties is not fairly traceable to the
acts of the Defendants because the Fair Housing Council initiated the investigation.
In the instant case, the Fair Housing Council was tipped off to potentially discriminatory
conditions at the Village of Olde St. Andews after noticing that all of the units in the development
had steps leading to the front door, creating an “inaccessible route” for disabled individuals. (Dist.
Ct. Op. 15-16, J.A. 89-90.) Part of the Fair Housing Council’s mission includes investigating and
monitoring housing developments for suspected incidences of discrimination. Regardless of whether
an organization learns of potential discrimination through independent complaints or through its own
observations, any action it takes in combating that discrimination is fairly traceable to the
defendant’s discriminatory acts. See e.g., Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir.1994) (finding
that a housing organization had standing when the organization, acting on its own initiative rather
than in response to a specific complaint, sent testers to investigate racial steering at certain New
York City rental properties).
We accordingly find that the resources that the Fair Housing Council directed toward training
and employing testers to investigate the Village of Olde St. Andrews constitutes a concrete injury.4
4
The Plaintiffs additionally argue that even were we to find that the direct testing costs do not constitute a
traceable injury, they suffered other concrete injuries sufficient to confer standing. The Plaintiffs specifically point to
several tasks that the Fair Housing Council claims its staff performed in lieu of other normal agency operations, such as
training and recruiting the testers and designing the testing portion of the investigation, observing the Village of Olde
St. Andrews development, meeting with the Center for Accessible Living. As proof of these prelitigation activities, the
Plaintiffs point to a record entitled “Plaintiffs’ Diversion of Resources,” which the Plaintiffs attached to their motion
for Attorney Fees. This document shows that Plaintiff the Fair Housing Council’s staff dedicated approximately 32
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Moreover, this injury is directly traceable to the Defendants’ construction of the housing
development in a manner resulting in discrimination toward disabled individuals. We therefore
affirm the District Court’s finding that Plaintiff Fair Housing Council has standing under the Fair
Housing Act.
2. Center for Accessible Living
As we previously noted, Center for Accessible Living’s asserted grounds for standing are far
less established than the Fair Housing Council’s. The Plaintiffs claim that the Center for Accessible
Living provided the testers for the Fair Housing Council, but they offer no proof that the Center for
Accessible Living did anything more than identify individuals that might serve as potential testers.
Indeed, the totality of Center for Accessible Living’s claimed injury - independent of the litigation -
appears limited to its time spent rounding up three testers. In light of the fact that the Center for
Accessible Living has failed to present evidence of its cost or time spent recruiting testers, we
cannot conclude that the Center for Accessible Living has suffered a “concrete and particularized”
injury. Sandusky Country Democratic Party v. Blackwell, 387 F.3d 565, 573 (6th Cir. 2004).
Therefore, the Court finds that Article III prohibits the Center for Accessible Living from
challenging Defendants’ conduct.
B. Statute of Limitations
The statute of limitations question presented in this case, which appears to be one of first
impression, is what “act” should constitute the triggering event for claims brought under the
hours to the prelitigation investigation of the Village of Olde St. Andrews. (J.A. 473-74.)
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discriminatory housing provisions of the Fair Housing Act. The Defendant WKB says that the
statute of limitations bars the Plaintiffs’ case because the design and construction of the relevant
housing units, which occurred more than two years before Plaintiffs commenced this action, tolls
the statutory period. The Plaintiffs say their claims are not barred because the non-compliant
structures constitute a continuing violation, such that the statute of limitations does not begin to run
until the violation terminates.
Plaintiffs filed suit on October 6, 1998, alleging that the Defendants did not build the Village
of Olde St. Andrews in compliance with the Fair Housing Act. On February 12, 1999, the Plaintiffs
filed an amended complaint in which they also alleged Fair Housing Act violations at the Greenhurst
and Deer Creek developments. The Defendants concede that the Plaintiffs’ claims with regard to
the Deer Creek and Village of Olde St. Andrews developments fall within the two-year statute of
limitations regardless of what we ultimately determine to constitute the triggering event. The
Defendants did not even complete construction on the Olde St. Andrews or Deer Creek
Developments until 1999 and 2001 respectively, well after the Plaintiffs filed suit. However, the
Defendants completed construction on the Greenhurst development in 1995 and had sold all but
three of the units prior to February 12, 1997, two years before the Plaintiffs filed their amended
complaint.
The Defendants argue that the statute of limitations should run from either the date of
completion of construction or the date that each individual unit was sold, thereby barring all claims
involving the Greenhurst development except with regard to the last three units that were sold after
February 12, 1997. In response, the Plaintiff argues that this Court should consider buildings that
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do not comply with Fair Housing Act standards to be continuing violations. Under that theory, the
continuing violation doctrine would toll the statute of limitations until the Defendants remedy the
conditions making the developments inaccessible to disabled individuals.
In addressing this issue, the district court agreed with the Plaintiffs that the continuing
violation doctrine does apply “so long as there is some ongoing act being performed as it pertains
to the design and construction of the development.” The district court found both the Defendants’
and the Plaintiffs’ arguments flawed, however, with respect to what act or event should trigger the
statute of limitations. As such, the district court concluded that the sale or rental of the last
nonconforming unit in a development is the act or event that triggers the statute of limitations.
Applying this standard, the district court held that the Plaintiffs’ claims were not time barred because
the last discriminatory act in this case occurred less than two years before the Plaintiffs filed this
action. We agree with the district court, but explicitly limit our holding to the facts of this case.
Under the Fair Housing Act, the statute of limitations requires a plaintiff to file a complaint
within two years after the “occurrence or termination of an alleged discriminatory housing practice
. . . whichever occurs last.” 42 U.S.C. § 3613(a)(1)(A). Here, the particular provision of the Fair
Housing Act allegedly violated makes it unlawful to “discriminate in the sale or rental, or otherwise
make unavailable or deny a dwelling to any buyer or renter.” 42 U.S.C. § 3604(f)(1-2).
Additionally, in actions brought under the Fair Housing Act, the Supreme Court has recognized that
a complaint alleging a continuing illegal practice, rather than an isolated incident of violative
conduct, is timely when filed within two years of the last occurrence of the illegal practice. Havens,
455 U.S. at 380-81.
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In appealing the judgment of the district court, Defendant WKB says that the applicable two-
year statue of limitations should begin to run upon completion of the design and construction of the
housing units. In support of this proposition, the Defendant argues that the design and construction
of the housing units constitutes the gravamen of the Fair Housing Act violation alleged by the
Plaintiffs and therefore should start the statute of limitations. The Court rejects this argument.
First, as a preliminary matter the Court finds instructive - though certainly not dispositive -
that an overwhelming majority of the federal courts that have addressed this issue have rejected the
position advanced by the Defendant and adopted a less restrictive interpretation of the Fair Housing
Act’s tolling provisions. See, e.g., Eastern Paralyzed Veterans Ass’n, Inc. v. Lazarus-Burman
Assoc., 133 F.Supp.2d 203 (E.D.N.Y. 2001) ( “LIHS does not complain of a discrete violation of the
FHA, but instead describes an unlawful practice that . . . has continued to the present day. As such,
LIHS alleges a continuing violation which, therefore, is timely made.”); Montana Fair Housing, Inc.
v. American Capital Development, Inc., 81 F.Supp.2d 1057 (D.Mont. 1999); Baltimore
Neighborhoods, Inc. v. Rommel Builders, 40 F.Supp.2d 700 (D. Md. 1999). Additionally, from a
purely textual standpoint a violation of the relevant Fair Housing Act provision here requires more
than the mere design and construction of a noncompliant housing unit. Recall, the text of the Fair
Housing Act itself focuses on housing discrimination in the sale or rental of housing units.
Accordingly, it is difficult to credit the Defendant ’s assertion that the design and construction of the
units in question constitute the core of any Fair Housing Act violation.
Moreover, it makes little practical sense to start the limitations period running from the date
of completion of the design or construction. Often, housing units go unsold or unlet for some time
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after they are built. If the statute of limitations were to begin running immediately upon completion
of the building, potential buyers may not even look at the property until after the statute of
limitations has run. Such a result would run counter to the well established principle that in
interpreting the Fair Housing Act, courts are to give effect to the “broad remedial intent of Congress
embodied in the Act.” Havens Realty Corp., 455 U.S. at 380-81; see also Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972).
We find, however, that the view that the statute of limitations is tolled until the noncompliant
conditions are remedied is equally inconsistent with 42 U.S.C. § 3604(f)(1). The Fair Housing Act
specifies that the two year limitations period begins to run at the termination of the alleged act of
discrimination. In the context of the construction and design of multifamily dwelling units that are
inaccessible to disabled individuals, the discriminatory act occurs during the sale or rental of that
unit. Thus, once a unit has been sold or rented, the discriminatory act is complete.
Amici argues that the continuing violation should apply to toll the statute of limitations even
after the sale of all of the units in a particular environment. They cite Havens, 455 U.S. at 380-81,
for the proposition that “where a plaintiff, pursuant to the Fair Housing Act, challenges not just one
incident of conduct violative of the Act, but an unlawful practice that continues into the limitations
period, the complaint is timely when it is filed within [two years]5 of the last asserted occurrence of
that practice.” They further claim that failing to remedy the noncompliant conditions constitutes a
failure to otherwise make available accessible housing in violation of 42 U.S.C. § 3604(f)(1).
5
The Havens court applied the former 180-day limitations period. The current limitations period is two years.
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However, the statutory language of 42 U.S.C. § 3604(f) specifically makes the design and
construction of inaccessible housing units unlawful in the context of the sale or rental of the units.
Therefore, the language appearing in 42 U.S.C. § 3604(f)(1) prohibiting owners of those
developments from otherwise making unavailable accessible housing serves as a catch-all provision
to cover other ways that an individual may make housing unavailable to the disabled beyond the
forms of discrimination listed in 42 U.S.C. § 3604(f)(3)(c).
We therefore find that in cases where the plaintiff alleges that the owner of a multi-family
housing development failed to design and construct the development so as to make it accessible to
disabled individuals, the limitations period will depend on the specific circumstances of each case.
For example, where a disabled individual seeks to buy a particular unit and discovers that the unit
is inaccessible because it was not designed in conformity with the FHA, the limitations period for
that individual’s claim would begin to run from the date that the individual attempted to buy the unit
and discovered the nonconforming conditions. However, in a case such as the instant case, where
the plaintiff alleges that the owner or developer engaged in a policy or practice throughout the entire
development of constructing housing units that fail to comply with the FHA, the continuing
violations doctrine applies to toll the statute of limitations until the sale of the last unit in that
development. Along those same lines, where the plaintiff can show that the owner of several
housing developments engaged in a continuous policy or practice with regard to the noncompliant
design and construction of each of the developments, the continuing violation doctrine may toll the
running of the limitations period until the last unit of all of the implicated developments is sold.
Applying this rule to the instant case, we find that the Plaintiffs’ claims fall safely within the
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statute of limitations. As such, the Court rejects the Defendant’s argument and affirms the district
court’s holding that the statute of limitations does not begin to run in actions alleging this type of
discriminatory practice until the last non-compliant unit is sold.6
C. HUD Guidelines
Finally, Defendant WKB also says that the district court committed error in failing to allow
them to demonstrate compliance with the Fair Housing Act by means other than those set forth by
the applicable HUD guidelines. Once again, the Court rejects Defendant’s argument. In its brief,
the Defendant correctly notes that neither the language of the Fair Housing Act itself nor applicable
federal regulations provide specific design and construction standards. The Defendant incorrectly
alleges, however, that the district court impermissibly treated the relevant HUD guidelines as
controlling authority.
In addressing whether the housing units complied with the Fair Housing Act, the district
court explicitly stated that “the Guidelines, though relevant and highly significant, are not decisive.
The real question is whether the units . . . are reasonably accessible and useable for most
handicapped persons.” Although the district court did note that “Defendants undoubtedly face a
heavy burden of demonstrating accessability” in instances where a construction feature does not
comply with the HUD guidelines, the touchstone of the district courts compliance analysis was
clearly the Act itself. Accordingly, we find that Defendant WKB had ample opportunity to
demonstrate compliance with the Fair Housing Act by means other than those set forth by the
6
The Court does not address the operation of the statute of limitations in Fair Housing Act cases alleging
disability discrimination in the rental of newly constructed multi-family dwellings.
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applicable HUD guideline and simply failed to do so. Moreover, the Supreme Court has held that
HUD’s interpretation of the FHA is entitled to deference. See Meyer v. Holley, 537 U.S. 280, 287-88
(2003); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210 (1972). As such, we again reject
Defendant WKB’s argument and affirm the district court.
IV. Conclusion
For the foregoing reasons, this Court AFFIRMS in part and REVERSES in part the decision
of the district court.
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RYAN, Circuit Judge, concurring. Were it not for Hooker v. Weathers, 990 F.2d
913 (6th Cir. 1993), I would hold that the Fair Housing Council, Inc., does not have Article III
standing to maintain this lawsuit. It is well settled that a housing organization that has not suffered
a “concrete and demonstrable injury to [its] activities,” Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982), is without standing to bring suit to enforce the Fair Housing Act, 42 U.S.C. § 3604.
It strikes me as obvious that a non-profit corporation created for the purpose, inter alia, of
bringing lawsuits to enforce the FHA, has not suffered a “concrete and demonstrable injury to [its]
activities,” (emphasis added), simply by conducting one of its activities—finding suable defendants.
But Hooker has held otherwise, and it is a binding precedent I am not free to ignore and cannot
distinguish in any meaningful way. Therefore, I am compelled to concur in a judgment that the Fair
Housing Council, Inc., has standing, under Article III, to sue the defendant to enforce the Fair
Housing Act. I agree that the Center For Accessible Living, Inc., does not have standing. I also
agree that Fair Housing’s lawsuit was not barred by the applicable two year statute of limitations,
42 U.S.C. § 3613(a)(1)(A).
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Cook, Circuit Judge, joins in the concurring opinion only.
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