The Fair Housing Council of Suburban Philadelphia v. Main Line Times Acme Newspapers, Inc. No. 97-1169

NYGAARD, Circuit Judge,

dissenting

This appeal raises the identical issue presented in Fair Housing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71 (3d Cir.1998). Again, I respectfully dissent.

The FHC has standing to sue The Main Line Times under 42 U.S.C. § 3604(c) because it has shown the threshold injury that is required under Article III, Section 2 of the Constitution. At trial the FHC demonstrated that it must redirect resources to an educational campaign to inform landlords, real estate agents, housing providers, and consumers that discrimination based on family status violates 42 U.S.C. § 3604(c). The FHC held a press conference to advise, among others, housing providers and consumers that the advertisements in The Main Line Times violated the Fair Housing Act. The FHC further demonstrated the ignorance of housing providers, who continue to attempt to submit illegal advertisements, and the need for an educational campaign for the housing industry and for the defendant itself, who continued to publish illegal advertisements and to promote misunderstanding about the familial status provisions of the Fair Housing Act. The majority mistakenly concludes that the FHC has not demonstrated the need for an educational campaign. In support of its holding, the majority repeats its characterization of the FHC’s evidence from the Montgomery Newspapers case. As I concluded in Montgomery Newspapers, the majority’s depiction of the evidence is incorrect. The district court concluded that the advertisements were not the cause of any programmatic changes the FHC may have made. Again, I disagree; the FHC is only required to show that its injury is fairly *445traceable to the actions of the defendant. Furthermore, the FHC has demonstrated standing for costs incurred investigating and applying legal pressure to The Main Line Times. The majority does not discuss this as it pertains to the evidence submitted in this case; but because it relies on its conclusion in the Montgomery Newspapers case, I reiterate my disagreement with that conclusion here.

I. Standard of Review

This is an exceptional case in which the district court granted judgment as a matter of law following a jury verdict of $25,000 in favor of the FHC. Generally, courts grant judgment as a matter of law sparingly, and give the nonmoving party every fair and reasonable inference before concluding that the verdict was not supported by legally sufficient evidence. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). The majority misapplies this standard, and credits only one passage of testimony in support of the FHC’s position. We have held that a case is properly submitted to a jury unless it is “critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.” Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921 (3d Cir.1986). A review of the record plainly reveals sufficient evidence to support a verdict in favor of the FHC.

II. Educational Injury

The Supreme Court held in Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214 (1982), that the plaintiff organization had standing to sue if the activity that allegedly violated the Fair Housing Act perceptibly impaired counseling and referral services. This impairment meets the “injury in fact” test because a concrete and demonstrable drain on resources is a more plausible injury than a conjectural “setback” to an organization’s abstract social interests. Id. at 379, 102 S.Ct. at 1124-25 (distinguishing Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). The courts of appeals interpreting Havens agree that diversion of resources to educational programs is sufficient to impart Article III standing. See, e.g., Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276-77 (D.C.Cir.1994); Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir.1991); Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990). An “identifiable trifle” of this type of injury will suffice to confer standing upon the FHC, even when the proceedings have advanced to trial. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14 (1973) (rejecting the argument that standing should be limited to those significantly injured, and ruling that any level of injury is sufficient to confer standing). The FHC has clearly met its burden by showing sufficient evidence of injury.

The FHC held a press conference to inform consumers and the housing industry that the discriminatory advertisements that appeared in The Main Line Times violated the Fair Housing Act. Jan Chadwick, Assistant Director of the FHC, testified to the detailed plan to educate housing providers and consumers about the Fair Housing Act’s family status provisions, and explained a specific proposal for newspaper campaign. The FHC also presented evidence of the additional costs associated with the newspaper campaign.

The FHC has also shown that its educational plan is a necessary response to the discriminatory advertisements that appeared in The Main Line Times because individuals seeking to place advertisements, as well as those responsible for publishing the ads, misunderstood the family status provisions of the Fair Housing Act. The illegal advertisements at issue in this lawsuit were accepted into publication by the trained staff of The Main Line Times advertising department. Frequently, individuals placing housing advertisements insisted on illegal wording, telling newspaper staff members to “take it or leave it,” and the paper would sometimes have to reject ads because the individual placing it refused to comply with the Fair Housing Act. The FHC educational plan, and specifically the press conference the FHC *446already held, attempted to dispel misconceptions about the Fair Housing Act that housing providers might have developed from reading the illegal advertisements in The Main Line Times.

III.Investigation Injury

Time spent reviewing the newspaper for illegal housing advertisements can constitute Article III injury. Havens found “injury in fact” when a fair housing organization had to divert resources to “identify and counteract” discriminatory practices. 455 U.S. at 379, 102 S.Ct. at 1124. Like “educational injury,” the courts following Havens agree that costs incurred investigating violations of the Fair Housing Act can confer standing. See, e.g., Hooker v. Weathers, 990 F.2d 913, 915 (6th Cir.1993) (costs incurred in the investigation to confirm the facts and circumstances).

Viewing the evidence of the two alternative Article III factors, investigation and litigation injury, there is at least a minimum quantum of evidence required to show injury. Here, the FHC demonstrated that it diverted resources to review The Main Line Times to identify violations of the Fair Housing Act.

IV.Litigation Injury

I restate my conclusion from my dissent in Montgomery Newspapers that activities falling between investigation and the filing of the lawsuit can constitute Article III injury to an organization under Havens. My decision to confer standing upon fair housing organizations for enforcement activities, other than the filing of the lawsuit, does not conflict with the Court of Appeals for the D.C. Circuit’s cases that the majority finds persuasive. Those eases only prohibit conferral of standing for the act of filing the lawsuit. See Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268 (D.C.Cir.1994); Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.Cir. 1990).

The FHC testified to the activities it had to postpone when it dedicated resources to enforcement activities arising from The Main Line Times advertisements. (Direct of James Berry, J.A at 208-209.) The FHC chose nonlitigation methods to apply legal pressure upon The Main Line Times to enforce the Fair Housing Act, including filing a complaint with the Pennsylvania Human Resources Commission (J.A. at 855) and holding a press conference to publicize the newspaper’s violations of the Fair Housing Act.

V.Causation

The district court held, and the majority agrees, that the FHC could not show that the alleged injury was caused by any illegal advertisements published by the Main Line Times. I disagree. For standing purposes, a plaintiff is required to show that its injury is “fairly traceable” to the defendant’s actions. Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn, 913 F.2d 64, 71 (3d Cir.1990). Tort causation is not required by Article III, and a plaintiff, even at the trial stage, does not have to prove injury for standing purposes with scientific certainty. Id. at 73 n. 10.

The FHC was able to specifically connect the advertisements at issue in this lawsuit to the press conference. Likewise, the FHC was able to associate its investigation and litigation injuries to the specific advertisements that were the ultimate subject of the lawsuit.

VI.Conclusion

For all the foregoing reasons, including the reasons set forth in my Montgomery Newspapers dissent, I conclude that the FHC has standing to advance a claim under 42 U.S.C. § 3604(e). I would reverse the district court and reinstate the $25,000 verdict in favor of the FHC and against The Main Line Times.