United States District Court, Northern District of California
March 26, 1999
PROJECT SENTINEL, A FAIR HOUSING AGENCY, INDIVIDUALLY AND ON BEHALF OF THE GENERAL PUBLIC, PLAINTIFF,
EVERGREEN RIDGE APARTMENTS, ET AL, DEFENDANTS.
The opinion of the court was delivered by: Walker, District Judge.
Before the court are defendants' motions to dismiss and for
summary judgment made on the ground that plaintiff, not having
suffered a direct and palpable injury as a result of defendants'
alleged conduct, lacks standing to bring this action. For the
reasons stated below, the court holds that plaintiff lacks
standing to assert its claims. Accordingly, summary judgment is
GRANTED in favor of defendants and against plaintiffs.
Plaintiff, Project Sentinel, is a non-profit corporation formed
for the purpose of "monitoring and investigating housing
providers and bringing about compliance with state and federal
fair housing laws." Compl ¶ 4. Defendants, owners and operators
of an apartment complex, are accused of maintaining a
discriminatory policy toward families with children and of
failing to provide handicap access to rental offices. Plaintiff
seeks declaratory and injunctive relief as well as damages
including attorney fees on behalf of itself as an organization.
Plaintiff's alleged injury is the frustration of its effort to
monitor housing practices and gain compliance with housing laws.
Specifically, plaintiff alleges that defendants' discriminatory
treatment of families has:
frustrated [plaintiff's] mission requiring it to
expend scarce resources to investigate and document
said practices, and will require further expenditures
of staff time to monitor and perform compliance
Compl ¶ 21. Similarly, defendants' alleged failure to provide a
wheelchair ramp has:
frustrated [plaintiff's] mission to insure that the
Fair Housing Act and other fair housing laws are
complied with within its area of responsibility, and
by causing it to expend its resources to investigate
and take steps to remedy said violations.
Compl ¶ 27. These allegations fail to establish an injury-in-fact
as required by Supreme Court authority construing Article III, §
2 of the Constitution. See Lujan v. Defenders of Wildlife,
504 U.S. 555
, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Article III, § 2 confers jurisdiction to federal courts over
"cases" and "controversies." One element of the case or
controversy requirement is that a plaintiff, through its
complaint, must establish that he has standing to sue. Raines v.
Byrd, 521 U.S. 811, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849
(1997). And, to establish standing to sue, a plaintiff must
allege that he has, as a result of defendants' actions, suffered
a distinct and palpable injury. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214
Just as an individual lacks standing to assert generalized
grievances about the conduct of the government, so an
organization's abstract concern about a subject that could be
affected by an adjudication fails to substitute for the concrete
injury required by Article III. See Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450
(1976). If, however, an organization points to a concrete and
demonstrable injury to its activities, not simply a setback to
the organization's abstract social interests, the organization
may successfully allege an injury in fact. See Havens, 455 U.S.
at 379, 102 S.Ct. 1114. In other words, an organization
establishes an Article III injury if it alleges that unlawful
action has increased the resources the group must devote to
programs independent of its suit challenging the unlawful action.
The scope of the injury requirement was addressed under similar
circumstances by the Supreme Court in Havens Realty Corp. v.
Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214
(1982). In Havens, a realty company and one of its employees
were alleged to have engaged in racial "steering" in violation of
the Fair Housing Act. Among the plaintiffs was a housing
organization called Housing Opportunities Made Equal ("HOME"),
whose mission as alleged in the complaint was "to make equal
opportunity in housing a reality." HOME alleged that it had
suffered injury as a result of the unlawful steering in that its
counseling and referral services had been frustrated by the
discriminatory conduct and by the consequent diversion of its
financial resources to identify and counteract the unlawful
conduct. The Supreme Court held that HOME was entitled to sue in
its own right.
The Court wrote:
In determining whether HOME has standing under the
Fair Housing Act, we conduct the same inquiry as in
the case of an individual: Has the plaintiff
"`alleged such a personal stake in the outcome of the
controversy' as to warrant his invocation of federal
court jurisdiction?" * * * If, as broadly alleged,
petitioner's steering practices have perceptibly
impaired HOME's ability to provide counseling and
for low-and moderate-income home-seekers, 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 378-79, 102 S.Ct. 1114 (citations omitted) (emphasis
Plaintiff's complaint, however, alleges nothing more than a
setback to the organization's abstract social interest in gaining
compliance with fair housing laws. Plaintiff does not allege that
it provides any service or is engaged in any other enterprise
independent of this action that might be frustrated by
defendants' allegedly unlawful conduct. Plaintiff does not claim
that its effort to monitor housing practices and gain compliance
with housing laws has diverted its resources from some other
enterprise. Rather, plaintiff's alleged enterprise is itself
nothing more than the monitoring and investigating of housing
providers and the bringing about of compliance with state and
federal fair housing laws.
Plaintiff cannot manufacture standing by first claiming a
general interest in lawful conduct and then alleging that the
costs incurred in identifying and litigating instances of
unlawful conduct constitute injury in fact. This court cannot,
constitutionally, exercise jurisdiction over such a case.
Plaintiff's complaint is, therefore, properly subject to
Defendants, however, move not only for dismissal but also for
summary judgment. Even if the complaint's allegations were
sufficient to establish standing, something more than naked
allegations is required to avoid summary judgment. See Fair
Housing Council of Suburban Philadelphia v. Montgomery
Newspapers, 141 F.3d 71, 76 (3rd Cir. 1998). Because the
elements of standing are not mere pleading requirements but are
in fact an indispensable part of plaintiff's case, each element
must be supported at the summary judgment stage in the same way
as any other matter on which the plaintiff bears the burden of
proof. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
In order to defeat defendants' motion for summary judgment,
plaintiff must submit affidavits or other evidence showing
through specific facts that it was directly affected by the
alleged discrimination. Plaintiff's allegations of frustration,
however, fail to establish that plaintiff's operations were
directly harmed as a result of the allegedly discriminatory
conduct. Plaintiff supplies no evidence of any injury other than
the diversion of funds and other resources to pursuit of this
litigation. Moreover, this "evidence" consists merely of
conclusory statements made by plaintiff's attorney in his
Plaintiff, through its attorney's declaration, asserts that its
resources have been diverted from "its educational, counseling,
and landlord-tenant mediation functions to test and document the
discrimination that appears to have occurred in this case."
Woodruff Decl ¶ 15. It is true that if an organization alleges or
is able to show that it has devoted additional resources to some
area of its effort in order to counteract discrimination, the
organization has met the Article III standing requirement of
injury in fact. See Havens, 455 U.S. at 379, 102 S.Ct. 1114.
Litigation expenses alone, however, cannot suffice. See Fair
Housing Council, 141 F.3d at 78-79; 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
In Spann, the court of appeals held that in order to
establish standing, an organization must point to a "concrete and
demonstrable injury to [its] activities." Id. at 27. Circuit
Judge Ruth Bader Ginsburg, writing for the panel, explained that
merely devoting funds to support a lawsuit will not suffice to
establish an injury within the scope of Article III.
An organization cannot, of course, manufacture a suit
from the 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.
Id at 27. This result is in conformity with the Supreme Court
decision in Havens.
Havens did not base its holding in favor of standing merely
on the diversion of resources to litigation, but rather on the
alleged injury that the defendants' actions themselves inflicted
upon the plaintiff's referral and counseling programs. See
Havens, 455 U.S. at 379, 102 S.Ct. 1114. To be sure, the Court
did mention the drain on the plaintiff's resources. But this
drain sprang from the plaintiff's efforts to counteract the
effect of the defendants' allegedly illegal practices on the
plaintiff's counseling and referral services, not merely from the
expense of the ensuing investigation and litigation. The
litigation expenses were merely a secondary manifestation of the
primary injury inflicted by the defendants' practices on
plaintiff's counseling and referral operations.
The plaintiff in the present case, by contrast, does not allege
that defendants' conduct directly obstructed the educational,
counseling or mediation services referenced in its attorney's
declaration. Rather, the sole injuries alleged are to plaintiff's
abstract goals and the cost of initiating this suit. This suit is
not alleged to have been made necessary by any detrimental impact
of defendants' actions on plaintiff's operations. In other
words, plaintiff does not allege injury to itself independent of
its decision to divert resources away from the pursuit of its
abstract goals to support this suit.
Plaintiff's reliance on dictum in El Rescate Legal Services,
Inc. v. Executive Office of Immigration Review is misplaced.
959 F.2d 742, 748 (9th Cir. 1991). The only portion of that opinion
bearing on the issue at bar is a single sentence:
The allegation that the EOIR's policy frustrates
these goals and requires the organizations to expend
resources in representing clients they otherwise
would spend in other ways is enough to establish
Id. at 748. This sentence, however, is not necessary to El
Rescate's holding and is, therefore, dictum. See id ("the
issue [of the organizational plaintiff's standing] is moot"). As
dictum, it is merely of persuasive value to this court.
Nonetheless, plaintiff contends that, under El Rescate, a
defendant's interference with an organizational plaintiff's
abstract goals, in combination with that plaintiff's subsequent
diversion of resources to litigation against the defendant, is
sufficient to establish an Article III injury in fact.
The unfortunate language of the above sentence is indeed
susceptible to plaintiff's reading. Plaintiff, however, ignores
the facts of the underlying case. The plaintiff organization in
El Rescate provided legal assistance to non-English speaking
clients. The failure of the defendants to provide translators at
immigration court proceedings directly frustrated the
organization's ability to provide legal services. Thus, despite
the loose wording of the dictum cited by plaintiff, the
organizational plaintiff in El Rescate was in fact a typical
Havens plaintiff: The organization's diversion of resources to
litigation was the result of harm inflicted directly upon its
ability to provide its services, not merely upon its abstract
social interests or goals. Plaintiff's reading of El Rescate
ignores this critical distinction and would, as noted above,
completely eviscerate Article III's requirement of an injury in
Under Havens, a diversion of resources to litigation
evidences an injury when such a diversion is made necessary by
the defendant's frustration of a plaintiff organization's
"activities," not merely its abstract social interests.
Plaintiff cannot manufacture standing by asserting an abstract
interest in "monitoring and investigating housing providers and
bringing about compliance with state and federal housing laws"
and then claiming the cost of litigation
as the sole underlying Article III injury. Rather, plaintiff
must demonstrate that the defendants' allegedly unlawful conduct
somehow affected plaintiff's ability to operate, thereby giving
rise to the need to divert funds to litigation. In the present
case, defendants' alleged conduct did not obstruct plaintiff's
mission, it created plaintiff's mission.
By the mere bringing of his suit, every plaintiff demonstrates
his belief that a favorable judgment will make him happier.
Presumably every such plaintiff would prefer to allocate
elsewhere the resources spent on such litigation. And, although a
litigant may derive great comfort and joy from the vindication of
a perceived wrong inflicted upon another, neither that psychic
satisfaction nor the diverted cost of the litigation can generate
an Article III case or controversy because neither constitutes a
cognizable Article III injury. See Steel Company v. Citizens for
a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1018-19, 140
L.Ed.2d 210 (1998). A contrary rule would drain the Article III
standing requirement of any import.
Because plaintiff has not alleged a personal stake in the
outcome of the controversy to warrant its invocation of federal
court jurisdiction, summary judgment in favor of defendants and
against plaintiff is GRANTED.
The clerk shall enter judgment, close the file and terminate
all pending motions.
IT IS SO ORDERED.
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