                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

EQUAL RIGHTS CENTER,                           )
                                               )
              Plaintiff,                       )
                                               )
            v.                    )                Civil Case No. 06cv1991 (RJL)
                                  )
POST PROPERTIES, INC. and POST GP )
HOLDINGS, INC. and POST           )
APARTMENTS HOMES, L.P.,           )
                                  )
         Defendants,              )
                                  )
         and                      )
                                  )
UNITED STATES OF AMERICA,         )
                                  )
         Movant.                  )

                              MEMORA~- OPINION
                             (SeptemberZ 2009) [#121, #123]

      The plaintiff, Equal Rights Center ("ERC"), claims the defendants (collectively,

"Post") have designed, constructed, and operated residential complexes in a manner

making them inaccessible for persons with disabilities in violation of the Fair Housing

Act ("FHA") and the Americans with Disabilities Act ("ADA"). Before this Court is

Post's Motion for Summary Judgment and ERC's Motion for Partial Summary Judgment.

Having reviewed the pleadings and the entire record, the Court concludes that ERC lacks

the necessary standing to bring this action and therefore GRANTS Post's motion and

DENIES ERC's motion.
                                        BACKGROUNDl

           Post owns and manages fifty-nine apartment communities, with more than 21,000

apartment units located in five states and the District of Columbia. (Mem. of Points and

Auth. in Support ofDef.s' Mot. for Summ. J. [Dkt. #121] ("Def.s' Mot.") (filed under

seal) at 1.) ERC is a comprehensive civil rights organization dedicated to, among other

causes, fair housing opportunities for everyone. (Mem. of Points and Auth. in Support of

PI.'s Opp'n to Def.s' Mot. for Summ. J. ("PI.'s Opp'n") (filed under seal, notice at Dkt.

#141) at 4.) In its complaint, filed in November 2006, ERC alleged that Post designed,

constructed, and operated its complexes in a manner making them inaccessible to persons

with disabilities in violation of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq., and Title

III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq. (CompI. [Dkt. #1-

3]   ~   2.) Not surprisingly, Post strongly disagrees, contending instead "its properties are

accessible to and usable by persons with disabilities," (Def.'s Mot. at 15), and that its

alleged failure to comply with the FHA's "safe harbor" provisions does not establish

otherwise, (id. at 3).

           On January 29,2007, prior to the commencement of discovery in this case, Post

filed a Motion to Dismiss and a Motion for Partial Summary Judgment. (Mot. to Dismiss

[Dkt. #10]; Mot. for Partial Summ. J. [Dkt. #11].) In its motions, Post alleged, among



       IFor additional background, see this Court's opinion denying ERC's Motion for a
Preliminary Injunction, Equal Rights Center v. Post Properties, Inc., 522 F. Supp. 2d 1 (D.D.C.
2007).

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other things, that ERC lacked standing. While these motions were pending, ERC filed a

Motion for a Preliminary Injunction on April 18,2007, seeking an order prohibiting Post

from selling a portion of its units until this litigation was resolved. (Mot. for Prelim. Inj.

[Dkt. #27] at 1.) The Court denied Post's motion to dismiss in June 2007. 2 (Minute

Order, 06114107.) The following month it denied ERC's motion for a preliminary

injunction on July 25,2007. Equal Rights Center v. Post Properties, Inc., 522 F. Supp.

2d 1, 6 (D.D.C. 2007).

                                            ANALYSIS

        A plaintiffs standing to bring a suit is a "threshold question in every federal case."

Warth v. Seldin, 422 U.S. 490, 498 (1975). ERC, as the party invoking this Court's

jurisdiction, has the burden to prove standing. Lujan v. Defenders of Wildlife, 504 U.S.

555,561 (1992). Generally plaintiffs must establish both constitutional and prudential

standing requirements. Constitutional standing under Article III "requires, at the

'irreducible constitutional minimum,' that the litigant has suffered a concrete and



        2Although this Court, in denying Post's earlier motion to dismiss, concluded ERC pled

facts sufficient to establish organizational standing, on December 17, 2008, after the completion
of discovery, Post filed the instant Motion for Summary Judgment, contending therein that
ERC's complaint must be dismissed because ERC was not able to establish the necessary injury
resulting from Post's conduct necessary to establish constitutional standing for the organization.
(Def.s' Mot. at 17-29.) For the reasons set forth in the opinion, the Court agrees. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) (affirming a denial of a motion to dismiss on
standing grounds, but noting that the district court should dismiss the complaint if the plaintiffs
could not "make more definite the allegations of the complaint"); Fair Employment Council of
Greater Washington, Inc. v. BMC Mktg. Corp, 28 F. 3d 1268, 1277 (D.C. Cir. 1994) (stating that
"[a]s this case proceeds, the [plaintiff] will have to provide support for its claim" that it suffered
injury as a result of the defendant's actions).

                                                  3
particularized injury that is actual or imminent, traceable to the challenged act, and

redressable by this [C]ourt." Abigail Alliance for Better Access to Developmental Drugs

v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) (quoting Lujan, 504 U.S. at 560)

(internal citation omitted). Prudential standing requirements are "not exhaustively

defined," but they "encompass[] the general prohibition on a litigant's raising another

person's legal rights, the rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches, and the requirement that a

plaintiff s complaint fall within the zone of interests protected by the law invoked." Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (internal quotation omitted).

       Despite the general requirements of prudential standing, however, plaintiffs

alleging violations of the FHA need not establish prudential standing. The Supreme

Court has stated that "Congress intended standing under [the FHA's enforcement

provision] to extend to the full limits of Art. III." Havens, 455 U.S. at 372 (internal

quotation omitted). Courts, therefore, "lack the authority to create prudential barriers to

standing in suits brought under that section." Id. Therefore, for purposes of its FHA

action, ERC need only establish constitutional standing.

       As an organization, ERC can establish constitutional standing either "on its own

behalf, or on behalf of its members." Abigail A lliance for Better Access to

Developmental Drugs, 469 F.3d at 132 (internal citations omitted). However, since ERC




                                              4
does not claim it has standing on behalf of its members, (PI.' s Opp 'n at 21-29), the Court

will focus exclusively on ERC' s standing as an organizational plaintiff.

       Organizational plaintiffs can establish they suffered injury in fact traceable to the

defendant's conduct if a defendant's actions "perceptibly impaired" the organization's

activities. Havens, 455 U.S. at 379. Thus, in Havens, the Supreme Court held that an

organizational plaintiff that assisted minorities in gaining equal access to housing

established standing to challenge a real estate company's "steering" away of minority

renters. Id. The Court held that if, as alleged, the organization was required "to devote

significant resources to identify and counteract" the company's discrimination, the

defendant's steering practices had "perceptibly impaired [the plaintiffs] ability to provide

counseling and referral services ... , [and] there can be no question that the organization

suffered injury in fact." Id.; see also Abigail Alliance for Better Access to Developmental

Drugs, 469 F.3d at 133.

       Based on Havens, our Circuit Court has found an organizational plaintiff had

standing to challenge a defendant's discriminatory housing advertisements because the

advertisements required the plaintiff to increase its "education and counseling ... to

identify and inform minorities, steered away from defendants' complexes by the

challenged ads, that defendants' housing is by law open to all." Spann v. Colonial

Village, Inc., 899 F.2d 24,28-29 (D.C. Cir. 1990). Additionally, "[e]ducational programs

might complementarily be necessary to rebut any public impression the advertisements


                                              5
might generate that racial discrimination in housing is permissible." Id. Likewise, our

Circuit Court held another organizational plaintiff providing counseling services had

standing to challenge a defendant's discriminatory actions that "might increase the

number of people in need of counseling [and] ... may have reduced the effectiveness of

any given level of outreach efforts." Fair Employment Council of Greater Washington,

Inc., 28 F. 3d at 1276. Additionally, in Humane Society v. Us. Postal Service, one of my

colleagues found that the Humane Society had established standing to challenge a

decision of the postal service on the basis that the Humane Society was injured by the

decision because it created "the need to care for animals on an emergency basis." 609 F.

Supp. 2d 85, 91 (D.D.C. 2009).

       Organizational plaintiffs, however, will not be able to establish the injury

necessary for constitutional standing when it consists merely of the impact on its activities

caused by their willful diversion of their resources in response to the defendants' conduct.

As our Circuit has explained:

       The [Havens] Court did not base standing on the diversion of resources from
       one program to another, but rather on the alleged injury that the defendants'
       actions themselves had inflicted upon the organization's programs. To be sure,
       the Court did mention the "drain on the organization's resources." Yet this
       drain apparently sprang from the organization's need to "counteract" the
       defendants' assuredly illegal practices, and thus was simply another
       manifestation of the injury that those practices had inflicted ....

Fair Employment Council of Greater Washington, 28 F.3d at 1277 (emphasis added).

"The mere fact that an organization redirects some of its resources to litigation and legal


                                             6
counseling in response to actions or inactions of another party is insufficient to impart

standing upon the organization." Nat 'I Taxpayers Union, Inc. v. United States, 68 F.3d

1428, 1434 (D.C. Cir. 1995) (quoted in parenthetical, quoted citation omitted).

       In fact, our Circuit Court "explicitly reject[ ed] [a plaintiff s] suggestion that the

mere expense of testing [a defendant] constitutes 'injury in fact' fairly traceable to [the

defendant's] conduct." Fair Employment Council of Greater Washington, 28 F.3d at

1276. Any injury from such testing is not traceable to the defendant's conduct, but "self-

inflicted; it results not from any actions taken by [the defendant], but rather from the

[plaintiff s] own budgetary choices." Id. (emphasis added).

       While ERC broadly alleges Post's actions "directly interfered with the ERC's

existing counseling, education, and advocacy programs and activities," (Pl.'s Opp'n at

25), discovery has revealed that any injury ERC suffered was due to its own decision to

investigate Post. (See Pl.'s Statement of Undisputed Facts [Dkt. # 123-10] ~ 113 (noting

that Ezinwanne Hawkins and Rebecca Crootof "testified that because of [the irJ work on

the Post investigation, [they were] unable to" perform various ERC activities).) Indeed,

ERC essentially concedes its sole injury occurred as the result of its decision to

investigate Post. In that regard, it specifically noted that it "was forced to expend time,

resources, and personnel to conduct a more in-depth nationwide investigation of Post, in

order to identify the extent and effect of Post's illegal practices so that it could tailor its

counseling, education, and advocacy efforts to effectively combat the problem." (Id.)


                                                7
          Notwithstanding these points raised by Post, ERC argues it has still established

constitutional standing because its investigation of Post was not necessarily in

anticipation of litigation. In that regard, the Executive Director of ERC testified that

testing is not a "tool to create litigation," but a tool to "identify whether discriminatory

conduct exists" and "the extent of the problem." (Decl. of Donald Khal (filed under seal),

~~   9-10.) ERC then uses the information obtained in the investigation to determine

whether litigation, or other action, is the best manner in which to combat the

discrimination. (Id.   ~   10.)

          In making this argument, however, ERC presumes that any injury beyond litigation

expenses is sufficient to establish organizational standing. It is not. ERC still needs to

establish that the injuries it suffered were not due to a self-inflicted diversion of

resources. "[Q]uintessentially ... strategic choice[s]," of course, are not limited to

litigation expenses. See Nat 'I Treasury Employees Union, 929 F. Supp. at 489. For

example, organizational plaintiffs cannot establish injury that is fairly traceable to

defendants' conduct merely by deciding to "devote resources to identify and counteract

misinformation," Am. Farm Bureau v. Us. EPA, 121 F. Supp. 2d 84, 100 (D.D.C. 2000),

by negotiating payments with a defendant, Long Term Care Pharm. Alliance v.

UnitedHealth Group, Inc., 498 F. Supp. 2d 187, 189-90, 191-92 (D.D.C. 2007), or by

choosing to redirect lobbying efforts, Nat 'I Treasury Employees Union, 929 F. Supp. 2d

at 489.


                                               8
       Regardless of whether ERC's investigation was an inherently pre-litigation

exercise, the record is clear that ERC chose to redirect its resources to investigate Post's

allegedly discriminatory practices. ERC has thus not suffered an injury, to date,

traceable to Post's conduct within the meaning of Article III. See id. Indeed, "[w]ere an

association able to gain standing merely by choosing to fight a policy that is contrary to its

mission, the courthouse door would be open to all associations." Long Term Care

Pharm. Alliance, 498 F. Supp. at 192. As ERC has failed to establish the irreducible

constitutional minimum standing requirements, ERC lacks standing to bring both its FHA

and its ADA claims. As a result, this Court will GRANT Post's Motion for Summary

Judgment and DENY ERC's Motion for Partial Summary Judgment. An Order consistent

with this Memorandum Opinion is attached.




                                                  United States District Judge




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