CATHERINE C. BLAKE, District Judge.
The Equal Rights Center (the ERC) is a non-profit organization based in Washington, D.C. dedicated to, among other things, ensuring equal opportunities in housing for persons with disabilities through education, research, training, counseling, enforcement and advocacy. The ERC has sued Equity Residential and ERP Operating L.P. (collectively, "Equity"), alleging that Equity has "repeatedly and continually" designed and constructed properties that violate the Fair Housing Act (FHA), 42 U.S.C. §§ 3601-3619, and Title III of the Americans with Disabilities Act, 42
As the only issue before this court is the ERC's standing to sue, the court will only recite the facts relevant to standing. The ERC is a non-profit organization based in Washington, D.C., "dedicated to ensuring equal opportunities in housing, employment, disability rights, immigrant rights, public accommodations and government services." (Declaration of Rabbi Bruce Kahn ("Kahn Decl.") ¶ 5.) It was formed in 1999 from the merger of the Fair Housing Committee of Greater Washington and the Fair Employment Council of Greater Washington. (Id. ¶ 6; Deposition of Rabbi Bruce Kahn, Def.'s Ex. B ("Kahn Dep."), at 12.) In 2005 it merged with the Disability Rights Council, and on April 7, 2006, amended its articles of incorporation to become a membership organization. (Kahn Decl. ¶ 6.) Its original membership included persons with disabilities as well as relatives of persons with disabilities and other persons dedicated to promoting the rights of persons with disabilities. (Id. ¶ 8.) Ensuring that people with disabilities are provided equal housing opportunities is one of the "core missions" of the ERC. (Id. ¶ 7.) The ERC advances its mission in various ways, including through "education, research, training, counseling, enforcement and advocacy." (Id. ¶ 5.)
One "well established ERC practice" is to engage in civil rights testing, which the organization has long used "to determine whether illegal discrimination [is] present, the extent of the discrimination, and the identities of the people or companies responsible for the discrimination." (Id. ¶¶ 10, 11.) Where testing reveals that discrimination might be present, the ERC "often engage[s] in a more systemic and targeted investigation that might include additional research and testing." (Id. ¶ 11.) If the ERC finds evidence that a particular person or company is engaging in discrimination, it "adhere[s] to its vision and mission by taking appropriate action to redress that discrimination." (Id. ¶ 12.) Sometimes that means "education and outreach, advocacy, training, [and/or] counseling." (Id.) For example, the ERC develops and publishes reports to educate victims of discrimination, persons or entities that have committed acts of discrimination, and the general public about the existence and extent of discriminatory practices. (Id. ¶ 13.) Other times the ERC decides to use "persuasion, negotiation, [and/or] bringing the issue to the attention of government enforcement agencies" to redress instances of discrimination. (Id. ¶ 9.) Still other times the ERC determines that it is appropriate to file a lawsuit against a person or company that is engaged in unlawful discrimination in order to "eliminate instances of discrimination and to promote compliance with the civil rights laws." (Id. ¶¶ 9, 18.) "The choice of which measures to employ depend[s] on the origin of the decision to
The ERC began conducting studies of multifamily housing properties in the Washington, D.C. area in 1997 through grants from the U.S. Department of Housing and Urban Development (HUD). (Id. ¶ 20.) The ERC published the results of those studies in a report on disability discrimination in the Washington, D.C. area housing market. (Id.) The ERC began receiving complaints about the inaccessibility of multifamily housing for people with disabilities in or around 2000. (Id.) Based on those initial studies and complaints, the ERC identified the inaccessibility of such properties as a "serious problem." (Id.) In 2004 the ERC conducted another study, also funded by HUD, which involved "a variety of tests including more than two dozen accessible design and construction tests of multifamily housing projects in and around the greater Washington D.C. metropolitan area." (Id.) This study revealed "violations of the FHA and ADA at every one of the multifamily properties tested." (Id.)
Based on these studies and complaints, the ERC began investigating particular developers, including Equity. (Id. ¶ 21.) The ERC began its investigation of Equity on June 10, 2005, when Rebecca Crootof, an ERC staff member, began conducting research about Equity properties, developing a testing methodology, choosing properties to test, finding testers, creating "tester profiles," drafting memoranda and reports, and arranging travel plans. (Def.'s Supp. App'x Tab L.) After conducting this "pre-testing investigation," the ERC began sending testers to Equity properties to determine whether Equity was complying with the design and construction requirements of the FHA and ADA. (Kahn Decl. ¶ 21.) The tests of five of these properties were conducted in connection with a project funded by HUD, through which the ERC conducted "more than 80 accessible design and construction tests of multifamily housing projects in and around the greater Washington D.C. metropolitan area." (Id. ¶ 22.) The initial testers of Equity properties found violations at every property, including the five tested through the HUD grant, and so the ERC continued to send testers to other Equity properties. "These results provided further reason for the ERC to continue and intensify its investigation of Equity." (Id.) Ultimately the ERC sent testers to inspect Equity properties in Florida, New Jersey, Washington, California, and Texas as well as the metropolitan D.C. area. (Kahn Decl. ¶ 21.) In all, the ERC tested sixty-one Equity properties and found violations of the FHA and ADA at every property tested. (Id.)
The ERC also acquired floor plans of additional Equity properties to which the ERC had not sent testers. (Deposition of Rebecca Crootof, Def.'s Ex. Tab F ("Crootof Dep."), at 160.) ERC staff inspected the plans to determine whether those properties shared "design elements . . . that were similar to design elements in tested properties that did not meet the requirements of the FHA." (Kahn Decl. ¶ 21.) If testing had revealed a potential violation, and if "an untested property had a similar or the same floor plan for, let's say, the bathroom," and the violation at the tested property "was of the type that was related to the layout of that bathroom," then the ERC concluded that "there was reason to assume that the same violation might also exist at the untested property." (Crootof Dep. at 168-69.) This "floor plan review . . . disclosed that violations were likely to exist at the remainder
In August 2005 Rabbi Kahn convened a meeting of leaders from Washington-area disability rights organizations. (Id. ¶ 23.) During the meeting, Rabbi Kahn "asked them if there was one crisis above all others that afflicted people with disabilities." (Id.) Rabbi Kahn reports that "without hesitation the entire group of leaders told me that the number one crisis for people with disabilities was finding accessible housing." (Id.) This response contributed to his decision to continue the ERC's investigation of Equity and other multifamily developers and "eventually [to] take enforcement actions against" them. (Id. ¶ 24.)
As the executive director of the ERC at the relevant times, Rabbi Kahn was responsible for deciding to further investigate Equity in the summer of 2005 and eventually to file this lawsuit. (Id.) Although the ERC had not received complaints about accessibility or discrimination at Equity properties specifically, Rabbi Kahn's decision to investigate Equity "was based entirely on the history of individual complaints received by the ERC during the period prior to the summer of 2005, evidence of widespread violations of the FHA and the ADA discovered during testing prior to the summer of 2005, coupled with the broad-based belief held by the representatives of the community of people with disabilities that lack of accessible housing was the primary concern of this community." (Id.)
The ERC has submitted detailed evidence of how its discovery of FHA and ADA violations by Equity required the organization to devote resources, including staff time and expenses, to further investigate the company, resources that the ERC would otherwise have devoted to other programs and activities. The organization has also detailed when those expenses arose. Specifically, the ERC devoted $57,464.81 of staff time and $12,566.22 of expenses to its investigation of Equity, all prior to filing this lawsuit. (Declaration of Donald L. Kahl ("Kahl Decl.") ¶¶ 24-25.) It also devoted $15,063.75 of staff time for education and outreach on accessible design and construction, a portion of which was spent prior to filing this lawsuit. (Id.)
The ERC incurred these costs, or at least a substantial portion of them, prior to filing its lawsuit against Equity. Once it filed the lawsuit, its costs continued to mount, both from litigation expenses and diversion of resources from other activities it would have conducted but for the Equity lawsuit. (Id. ¶ 28.) For example, the ERC was unable to produce five issues of its quarterly newsletter, at least in part because of the resources it was devoting to the Equity lawsuit. (Id.) By interfering with the ERC's ability to publish the newsletter, the Equity lawsuit interfered with its ability to educate its membership on civil rights issues. (Id.)
The ERC has also expended resources as part of its efforts to counteract Equity's alleged discriminatory practices, efforts that are separate from this litigation. The ERC developed materials to "educate the [real estate development] industry, including Equity[,] about how and why they needed to comply with the provisions of the Fair Housing Act dealing with the design and construction of multifamily housing." (Id. ¶ 30.) The ERC also worked to increase awareness among persons with disabilities of their rights concerning
In short, in response to the ERC's discovery that Equity was allegedly violating the FHA and the ADA, the ERC conducted activities that were "a major shift in the activities of the ERC." (Id. ¶ 31.) The ERC "would not have undertaken them but for the ERC's discovery of the widespread failure of Equity and other national developers to design and construct new multifamily housing to be accessible to people with disabilities as required by the FHA and ADA." (Id.)
The ERC sued Equity for violations of the FHA and Title III of the ADA on April 27, 2006. Equity moved to dismiss on June 26, 2006, arguing that the ERC did not allege facts sufficient to establish its standing to pursue the action, and that venue was improper. Equity also moved to sever the ERC's two claims into separate claims for each of the 300 properties that the ERC alleged violate the FHA and ADA. Judge Davis denied Equity's motions. See Equal Rights Ctr. v. Equity Residential, 483 F.Supp.2d 482 (D.Md. 2007) ("Equity I"). The parties began discovery and entered into a stipulated protective order. The parties each filed motions for partial summary judgment, on November 10 and November 13, 2009, respectively. Equity's motion requested summary judgment as to twelve properties, the construction of four of which allegedly pre-dated the effective dates of the FHA and ADA, and eight of which were not owned by Equity when constructed. The ERC's motion requested summary judgment as to nine other properties. On July 15, 2010, the court granted a joint motion to stay discovery and remaining briefing on the parties' motions for partial summary judgment except on the question of the ERC's standing to bring this action. On August 6, 2010, the ERC responded to the portion of Equity's motion concerning standing, and Equity replied on October 27, 2010.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Whether a fact is material depends upon the substantive law. Id. at 248, 106 S.Ct. 2505.
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion,'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (quoting United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks omitted).
I. Standing on the Fair Housing Act claim
The Fair Housing Act authorizes any "aggrieved person," defined as "any person who . . . claims to have been injured by a discriminatory housing practice" or "believes that such person will be injured by a discriminatory housing practice that is about to occur," to "commence a civil action in an appropriate United States district court or State court . . . to obtain appropriate relief" for violations of the Act. 42 U.S.C. §§ 3602(i); 3613(a)(1)(A). The term "person" includes "associations," id. § 3602(d), and a "discriminatory housing practice" is defined as "an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title." Id. § 3602(f). This remedial provision extends standing under the Act to the full extent permitted by Article III of the Constitution. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Gladstone,
Article III of the Constitution restricts federal courts to the adjudication of cases and controversies. One aspect of the case-or-controversy requirement is Article III standing, which requires that any plaintiff, including an organizational plaintiff, allege and prove that it has "such a personal stake in the outcome of the controversy as to warrant" the exercise of federal jurisdiction. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish constitutional standing, a plaintiff must establish that
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
Standing is determined as of the date a plaintiff files suit, Lujan, 504 U.S. at 570 n. 5, 112 S.Ct. 2130 (plurality opinion), and each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [courts] `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Id. At the summary judgment stage, however, the nonmovant (here, the ERC) can no longer rest on mere allegations, but rather must cite to "particular parts of materials in the record" that, taken as true, show that "a fact [relevant to standing] cannot be or is genuinely disputed." Fed.R.Civ.P. 56(c)(1). If the movant, on the other hand, "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," the court "shall grant summary judgment" to the movant (here, Equity). Fed.R.Civ.P. 56(a).
An organization may establish standing either by suing "on its own behalf when it seeks redress for an injury suffered by the organization itself" or by suing "on behalf of its members when: (1) its members would otherwise have standing to sue as individuals; (2) the interests at stake are germane to the group's purpose; and (3) neither the claim made nor the relief requested requires the participation of individual members in the suit." White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir.2005) (citation omitted). The former is generally known as organizational standing, the latter as associational standing. The ERC asserts standing based solely on organizational standing. It asserts that Equity's alleged discriminatory practices injured the organization itself because they "required the ERC to divert a substantial amount of resources away from other organizational activities," which in turn frustrated its mission "of ensuring equal housing opportunities [for] and eliminating discrimination [against] people with disabilities." (Pl.'s Mem. at 8, 21.)
The Supreme Court addressed the standing of organizations bringing FHA claims in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). There, an organization, Housing Opportunities Made Equal (HOME), sued the owner of an apartment complex and one of its employees for alleged "racial steering," which involved "steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups." Id. at 366 n. 1, 102 S.Ct. 1114. HOME alleged that the defendants' alleged racial steering practices had caused it to "devote significant resources to identify and counteract" those practices and thereby "frustrated . . . its efforts to assist equal access to housing through counseling and other referral services." Id. at 379, 102 S.Ct. 1114. The
Thus, an organization suffers an injury-in-fact sufficient to satisfy the first prong of the Article III standing analysis where the organization incurs expenditures in identifying and counteracting a company's violations of the FHA and those expenditures perceptibly impair the organization's ability to advance its mission.
A. Injury in fact
As an initial matter, the ERC argues that the existence of an injury in fact has already been conclusively determined and is the law of the case. When Judge Davis denied Equity's motion to dismiss, he set forth the legal standard provided by Havens, and held that the ERC's complaint alleged facts sufficient to satisfy Havens for purposes of the ERC's FHA claim. 483 F.Supp.2d at 486-87. The ERC argues that certain aspects of Judge Davis's reasoning require, as a matter of law of the case, that Equity's motion for summary judgment on the FHA claim be denied. Specifically, the ERC points to Judge Davis's holding that "the very fact that plaintiff [allegedly] undertook a nationwide investigation of defendants' violations
It is true that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case," Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988), and, accordingly, a court's holding on a motion to dismiss may affect the disposition of a later motion for summary judgment. PDK Labs Inc. v. Ashcroft, 338 F.Supp.2d 1, 6 (D.D.C.2004). A denial of a motion to dismiss would only be dispositive of a later summary judgment motion, however, if the factual showing were essentially congruent with the factual allegations made in the complaint. See id. at 7 ("[A] summary judgment motion `may not be made on the same grounds and with the same showing that led to the denial of a previous motion to dismiss.'") (citing 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure: Civil 3D § 2713 at 233 (2d. ed. 1998)). Here, in contrast, the evidence presents facts that are far more complete and detailed than were the allegations Judge Davis considered in ruling on Equity's motion to dismiss. For example, the evidence disaggregates the expenses the ERC incurred before filing this lawsuit from those incurred after; it details the efforts the ERC dedicated to investigating and counteracting the defendant's alleged discriminatory practices; and it explains how the ERC came to begin investigating Equity in the first place. Because each of these nuances, among others, affects the analysis of the ERC's standing, but were not issues raised by the allegations presented in the ERC's complaint, Judge Davis's reasoning is not dispositive of Equity's motion for summary judgment. Although this court has concluded that there is at least a genuine issue of material fact as to the ERC's standing, the court reaches that conclusion based on the evidence presented, not as a matter of law of the case.
The evidence shows that the ERC suffered an injury when, pursuant to its mission to promote fair housing for persons with disabilities, it expended resources to investigate and counteract Equity's alleged discriminatory practices.
The ERC also expended resources counteracting Equity's alleged FHA violations. The organization worked to increase awareness among persons with disabilities
By expending those resources to identify and counteract Equity's alleged violations of the FHA, the ERC's ability to advance its mission of promoting accessible housing for persons with disabilities was perceptibly impaired. As Rabbi Kahn, the executive director of the ERC from 2004 to 2008, averred, "[t]he time the ERC spent on the Equity investigation in 2005 and the first quarter of 2006, interfered with its existing programs, including" work on victim intake and counseling, seminars, public service advertising campaigns, compliance testing, and training materials (Kahl Decl. ¶ 26), along with time Rabbi Kahn himself would have otherwise spent on management and development activities, the organization of a nascent Washington, D.C.area civil rights alliance, and expanding the ERC's programs on fair employment and public accommodations, among other activities. (Id. ¶ 27.)
Despite the evidence that the ERC expended resources to investigate and counteract Equity's alleged discriminatory practices, which diverted resources from
The Supreme Court's recognition of organizational standing in Havens, however, precludes this argument. In Havens, the organizational plaintiff was injured because the defendants' alleged racial steering perceptibly impaired the organization's ability to assist low-and moderate-income homeseekers. 455 U.S. at 379, 102 S.Ct. 1114. Similarly, here the ERC has proffered evidence that its ability to ensure fair housing for persons with disabilities has been perceptibly impaired by Equity's alleged discriminatory practices. The nature of the underlying violations of the FHA does not defeat the ERC's standing to bring this action. Although the Havens Court discussed the nature of the underlying alleged violations, that discussion was relevant to the standing of the testers hired by HOME, not the standing of HOME itself, and thus is inapposite to whether the ERC has standing here. See Havens, 455 U.S. at 373-75, 102 S.Ct. 1114. The FHA provision allegedly violated in Havens prohibits "represent[ing] to any person because of race ... that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available." 42 U.S.C. § 3604(d). That provision "conferred on all `persons' a legal right to truthful information about available housing." 455 U.S. at 373, 102 S.Ct. 1114. Because the black testers hired by HOME were falsely told that apartments were unavailable, the testers had alleged an injury of their rights under the FHA, and thus had standing, even though they did not have an "intent to rent or purchase a home or apartment." Id. The Court did not, however, consider this issue relevant to whether HOME had standing. Rather, HOME's standing arose solely based on its diversion of resources to investigate the allegations of racial steering. Thus, the differences between the rights secured by 42 U.S.C. § 3604(d), which was at issue in Havens, and those secured by § 3604(f), which is at issue here, may arguably have been relevant if the testers who inspected Equity properties had joined this action as plaintiffs. Those differences, however, are irrelevant to whether the ERC's ability to further its mission was perceptibly impaired by Equity's alleged discriminatory
Second, Equity argues that for the ERC to show that it diverted resources, it must show that it was forced to decrease the level of funding of other ERC programs as a result of Equity's alleged discriminatory practices. The ERC cannot make this showing, Equity argues, because the "ERC has increased funding of outreach community programs." (Def.'s Mem. at 16 (emphasis in original).) The evidence shows, however, that the ERC was forced to decrease the resources devoted to certain programs. (See, e.g., Kahn Dep. ¶¶ 26-27 (detailing various activities that the ERC was forced to curtail because it was devoting resources to the Equity investigation).) Thus, the ERC's efforts to investigate Equity differ from those ruled insufficient in NAACP v. City of Kyle, Texas, 626 F.3d 233 (5th Cir.2010). There, the Fifth Circuit held that an association of builders lacked standing to challenge zoning ordinances because, although it expended $15,000 on a "study on the impact of the revised ordinances" and engaged in various lobbying efforts to urge the city to amend its ordinances, the organization had not "identified any specific projects that [it] had to put on hold or otherwise curtail in order to respond to the revised ordinances." Id. at 238-39. Here, the ERC has identified specific projects that it had to curtail in order to investigate and counteract Equity's alleged discriminatory practices, and identified activities that it could and would have pursued if it had not dedicated resources to its investigation of Equity.
Moreover, even if the ERC had not detailed the activities that received less funding because of the resources diverted to the Equity investigation, Equity's argument misses the point. Havens does not require that a defendant's actions force an organization to decrease the levels at which it funds other programs. All Havens requires is that other programs be "perceptibly impaired." 455 U.S. at 379, 102 S.Ct. 1114. Although a decrease in funding could be sufficient to meet this standard, it is not necessary. An organizational plaintiff could alternatively show, as the ERC has done here, that a defendant's actions caused the organization to fund other programs at levels lower than it would have but for the drain on an organization's resources resulting from a defendant's alleged discriminatory practices. The baseline to establish standing because of diversion of resources is the level of funding other programs would have received absent an investigation of a defendant's actions, not the level of funding for other programs before an organization began its investigation.
For these reasons, the ERC suffered an injury in fact sufficient to satisfy the first prong of the Article III standing analysis. The next question is whether that injury is traceable to Equity's alleged violations of the FHA.
When the ERC began investigating in the summer of 2005 whether Equity was complying with the FHA, it knew that various other multifamily housing developers, including every developer with properties tested in Washington, D.C., were in violation of the Act. (Kahn Decl. ¶¶ 20-22.) There is no evidence in the record that the ERC knew prior to summer 2005 that Equity was in violation of the Act, either from its investigations through HUD grants or individual complaints. Nonetheless, based on the substantial evidence of widespread violations by other developers, the ERC decided that it was worth expending resources on an investigation of
Nonetheless, Equity argues that the ERC's diversion of resources is not traceable to Equity's alleged violations, for four principal reasons. First, Equity argues that the expenses the ERC incurred in conducting these tests—and the consequent diversion of resources and frustration of the ERC's mission—cannot be traced to Equity because the ERC did not have reason to believe before it began investigating Equity that Equity specifically, as opposed to any other developer, had violated the Act. Havens does not require, however, that an organization suffer an injury before it begins an investigation. In fact, in Havens the Supreme Court expressly held that an organization's diversion of resources to "identify and counteract" the defendant's discriminatory practices are sufficient to allege standing under the FHA, so long as the need to divert those resources frustrated its mission. 455 U.S. at 379, 102 S.Ct. 1114. The Court did not require HOME to show that the resources it spent to "identify and counteract" the defendants' actions were expended before HOME began investigating those actions. Even assuming without deciding that the cost of sending testers to the very first Equity property tested was not traceable to a violation of the FHA by Equity, there can be no question that as soon as the ERC discovered that at least one Equity property was in violation of the Act, every subsequent expense associated with the ERC's investigation of Equity and counteraction of its alleged violations is traceable to those violations.
Second, Equity argues that the ERC's diversion of resources is not traceable to its alleged violations because the ERC never received a complaint that Equity was violating the FHA. Havens, however, does not require that an organization receive a complaint about a particular developer prior to beginning an investigation into whether the developer's properties violate the FHA. Although one of the plaintiffs in Havens appears to have been a victim of discrimination who was not a tester, the Court in Havens never discussed how the organization there learned of the alleged violations of the Act, whether through a complaint by that person or based on its own investigation. All that Havens requires is that the organization show it has diverted resources to investigate and counteract alleged violations of the FHA committed by Equity. As discussed above, the ERC has made that showing here.
Third, Equity argues that even if the ERC expended resources in response to Equity's actions prior to filing suit, it cannot show that resources were specifically expended to investigate Equity's properties because "ERC's investigation was simultaneously directed at 14 other companies" (Def.'s Mem. at 17). See Arkansas ACORN Fair Housing, Inc. v. Greystone Dev., Ltd. Co., 160 F.3d 433, 434-35 (8th Cir.1998) (holding that a fair housing organization did not have standing because, although an affidavit showed that the staff spent over 40 hours per month identifying violators of fair housing laws and working to counteract discriminatory advertising practices, including time spent monitoring the defendant's advertisements, the affidavit did not disaggregate how much of that staff time was spent specifically to monitor and counteract the defendant's advertisements). Here, the ERC has separately accounted for the time and expense devoted to investigating Equity, disaggregating the resources expended
Fourth, Equity argues that because the ERC "affirmatively chose to budget resources to investigate and later sue Equity," the diversion of resources to that investigation, including those spent on testing, was "self-inflicted" and hence not traceable to Equity. (Def.'s Mem. at 20.) It is true that the district court in Post Properties held that if an organization "chose to redirect its resources to investigate [a developer's] allegedly discriminatory practices," the injury was "self-inflicted" and would not constitute an injury traceable to the developer. Equal Rights Ctr. v. Post Props., Inc., 657 F.Supp.2d 197, 201 (D.D.C.2009) (emphasis in original). The D.C. Circuit, however, has since rejected that reasoning. The fact that an organization "voluntarily ... diverts its resources... does not automatically mean that it cannot suffer an injury sufficient to confer standing." Post Props., 633 F.3d at 1140. Rather, the proper inquiry there was, "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." Id. In Post Properties, the ERC did not meet that burden because, although the evidence showed that the ERC had incurred expenditures, the ERC did not "indicate when the ERC undertook the specified activities," and thus had not shown that the expenditures arose "in response to, and to counteract, the effects of the defendants' alleged discrimination rather than in anticipation of litigation." Id. at 1140-41.
Even assuming for the moment that the D.C. Circuit's standard were to control the ERC's claim against Equity, which this court does not decide, the ERC has met that burden. Apparently unlike in the Post Properties case, the ERC here has submitted detailed evidence of when its expenses arose, disaggregating those expenses that arose before and after the ERC filed its lawsuit against Equity. (See Kahn Decl. ¶¶ 25-26; Kahl Decl. ¶¶ 24-25, 27-28; Supp. Kahl Decl. ¶¶ 20-23.) In so doing, the ERC has shown that its discovery of FHA violations by Equity caused the ERC to devote resources, including staff time and expenses, to investigate the company's alleged discriminatory practices. The resources it dedicated to investigate and counteract those practices are resources the ERC would otherwise have devoted to other programs and activities. Thus, as the D.C. Circuit requires, the ERC has shown that Equity's "alleged discriminatory conduct injured the ERC's interest in promoting fair housing," and that the ERC "used its resources to counteract that harm."
For these reasons, the ERC has proffered sufficient evidence from which a reasonable jury could find that Equity's alleged discriminatory practices perceptibly impaired the ERC's ability to provide its existing services and thereby frustrated its mission of ensuring equal housing opportunities for people with disabilities. Because Equity does not dispute that a favorable decision would redress the injury, the ERC has standing to sue Equity based on Equity's alleged violations of the FHA.
II. Standing under ADA Title III
The ERC has also sued Equity under Title III of the ADA, seeking declaratory and injunctive relief.
The ERC argues that even though it is not itself a victim of discrimination, that question is only relevant to whether the ERC's ADA claim is barred by the prudential "prohibition on a litigant raising another person's legal rights," Allen, 468 U.S. at 751, 104 S.Ct. 3315, and prudential standing barriers do not apply to claims under ADA Title III. But whether prudential limitations apply under Title III, whether the ERC's ADA claims should be barred because the ERC is "raising another person's legal rights," and whether the ERC has shown that it has a constitutionally cognizable injury in fact, are not controlling in this context. The question is whether Title III has granted the ERC a cause of action based on the allegations the ERC presents here. Under the plain language of the statute, it has not.
Some opinions have approached this question differently, analyzing under prudential frameworks, particularly the prohibition on raising the claims of third parties, whether an organization like the ERC can sue under Title III. See, e.g., Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F.Supp.2d 510, 520-23 (D.Md.2010); Equal Rights Ctr. v. Hilton Hotels Corp., Civil No. No. 07-1528(JR), 2009 WL 6067336, *4-*5 (D.D.C. Mar. 25, 2009); Small v. General Nutrition Cos., Inc., 388 F.Supp.2d 83, 92-94 (E.D.N.Y. 2005); Clark v. McDonald's Corp., 213 F.R.D. 198, 210-12 (D.N.J.2003). Although I reach the same conclusion, I do so based on Congress's decision to limit the private right of action under Title III to persons "being subjected to discrimination" or those with "reasonable grounds for believing that such person is about to be subjected to discrimination," 42 U.S.C. § 12188(a)(1), not based on judicially-created prudential limitations. It is Congress, not the courts, that has
In concluding that the ERC cannot continue to press its ADA claim, the court is constrained by the plain language of Title III. As noted above, Title II of the ADA (and presumably Title I as well) confers a private right of action on anyone with a constitutionally cognizable injury. Although a House report states that, "[a]s with other titles of the [ADA], the [House Judiciary Committee] intends that persons with disabilities have remedies and procedures parallel to those available under comparable civil rights laws," H.R.Rep. No. 101-485, pt. 3, at 66 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 489, there does not appear in the legislative history any explanation for why Congress used narrower language in creating the cause of action under Title III than it did under the preceding titles; nor has this court, nor apparently have others, found any such explanation. Nonetheless, the court is constrained by the presumption that "when `Congress uses different language in different sections of a statute, it does so intentionally.'" Small, 388 F.Supp.2d at 93 (quoting Florida Pub. Telecomm. Ass'n v. FCC, 54 F.3d 857, 860 (D.C.Cir.1995) (collecting cases)). There is no apparent logic for limiting the private right of action under Title III to only a subset of persons or entities who would be permitted to sue under Titles I and II. See id. (observing that interpreting the remedies provision of Title III differently than the corresponding provisions of Titles I and II "results in a lack of consistency among the ADA's titles that has no apparent logic"); Hilton Hotels Corp., 2009 WL 6067336 at *5 ("It is peculiar that Congress would provide a more limited right to relief under Title III of the ADA than it did under Title II."). Nonetheless, absent some basis to disregard the plain language of Title III, the court must conclude that the ERC does not have a cause of action to sue under Title III of the ADA.
III. The scope of the ERC's standing under the FHA
For these reasons, the ERC has shown that it has standing to sue Equity for alleged violations of the FHA, but not under the ADA. The question remains, however, whether the ERC has standing under the FHA to seek relief with respect to all 298 properties currently the subject of this lawsuit, or only a subset of those properties.
First, Equity argues that the ERC's standing is limited to properties located in the Washington, D.C. area, because the ERC is based in Washington, D.C. Judge Davis rejected this argument in ruling on Equity's motion to dismiss. He explained:
483 F.Supp.2d at 487. The more fully developed record supports that ruling. Although the ERC's office is in Washington, its mission is a national one. It does not seek merely to protect the rights of persons with disabilities in the Washington area; its mission is to combat discrimination against persons with disabilities wherever they live, and to ensure that accessible multifamily housing is available throughout the country. Indeed, the ERC expended resources sending testers to inspect Equity properties in Florida, New Jersey, Washington, California and Texas, in addition to the Washington, D.C. area. There is no basis for limiting its standing to properties located in the vicinity of its office in Washington, D.C.
Second, Equity argues that even if the ERC has standing with respect to some Equity properties, the ERC's standing is limited to properties to which the ERC sent testers. (Def.'s Mem. at 12 n. 7.) In other words, Equity argues that the ERC must demonstrate that it incurred investigation expenses with respect to each property listed in the complaint to be able to include the property in its lawsuit, and that the floor-plan review conducted by the ERC is insufficient to make that showing. Judge Davis rejected a similar argument in denying Equity's motion to dismiss. Equity had argued that the court should sever the ERC's claims with respect to each property, and transfer each claim to the federal district where the property is located. 483 F.Supp.2d at 485. Judge Davis rejected the "fiction" that the ERC's FHA claim is actually 300 separate FHA claims. He explained:
483 F.Supp.2d at 489 (citing Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 n. 16, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). This reasoning applies with equal force to the question of the scope of the ERC's standing under the FHA. Part of the ERC's mission is to ensure equal opportunities in housing for persons with disabilities. The ERC's ability to advance that mission has been perceptibly impaired by Equity's alleged nationwide practice of designing multifamily housing developments in violation of the
For the foregoing reasons, insofar as Equity's cross-motion for partial summary judgment concerns the ERC's standing under the FHA, it will be denied; insofar as it concerns ERC's standing under the ADA, it will be granted; and insofar as it concerns the statute of limitations, it will be denied without prejudice. Equity's motion to strike will be denied. The parties' interim sealing motions, which are unopposed, will be granted. A separate Order follows.
For the reasons stated in the accompanying Memorandum, it is hereby