                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2004

Mitchell v. Cellone
Precedential or Non-Precedential: Precedential

Docket No. 04-1063




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Recommended Citation
"Mitchell v. Cellone" (2004). 2004 Decisions. Paper 112.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/112


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                    PRECEDENTIAL          James Q. Harty, Esq. (Argued)
                                          DKW Law Group
   UNITED STATES COURT OF                 600 Grant Street
APPEALS FOR THE THIRD CIRCUIT             USX Tower, 58th Floor
                                          Pittsburgh, PA 15219

                                                         Counsel for Appellants
            NO. 04-1063
                                          Robert E. Durrant, Esq. (Argued)
                                          Campbell, Durrant & Beatty
     KIMBERLY MITCHELL;                   555 Grant Street
      KENNETH M ITCHELL                   Suite 310
                   Appellants             Pittsburgh, PA 15219

                  v.                                     Counsel for Appellees

PAT CELLONE; P&R PROPERTIES,
   INC.; P&R PROPERTIES, LP
                                                           OPINION


 On Appeal from the United States         VAN ANTWERPEN, Circuit Judge
District Court for the Western District
                                                  This case presents a question that
           of Pennsylvania
                                          has not previously been answered in this
    (D.C. Civil No. 01-cv-02028)
                                          Circuit concerning the Fair Housing Act.
            District Judge:
                                          Shou ld a cou ple all eging racial
     Hon. Maurice B. Cohill, Jr.
                                          discrimination in housing be allowed to
                                          initiate a private lawsuit in federal court, if
                                          t h ey h a v e p r e v io u s l y f i l ed a n
       Argued October 7, 2004
                                          administrative complaint under the Fair
                                          Housing Act that has resulted in a state
   BEFORE: SLOVITER, VAN
                                          agency bringing a state court action against
   ANTWERPEN, and COWEN,
                                          the alleged discriminator? We answer this
        Circuit Judges
                                          question in the affirmative, and therefore
                                          we reverse the order of the District Court
     (Filed: November 1, 2004)
                                          which dismissed the case for lack of
                                          jurisdiction.
                                                                I.
                                                The Fair Housing Act was designed
                                          to provide nationwide fair housing to
minorities who had previously been                               The next day, the Mitchells
victims of invidious racial discrimination,               received a telephone call from Ms.
and is a valid exercise of congressional                  Cellone, asking them to reconsider their
power under the Thirteenth Amendment to                   move into the Tuscany building. From this
eliminate badges and incidents of slavery.                and subsequent conversations, the
See Jones v. Alfred H. Mayer Co., 392                     Mitchells concluded that, because of their
U.S. 409, 439-440, 88 S.Ct. 2186, 20 L.                   race, they were being steered away from
Ed. 2d 1189 (1968). This legislation                      the homogenous Tuscany building toward
makes it the policy of the United States to               an apartment in the racially-mixed
elimin ate all instance s of ra cial                      Carnegie building.2 The electronic access
discrimination in housing.                                card given to the Mitchells was
                                                          subsequently deactivated, preventing them
           Kimberly and Kenneth Mitchell are
                                                          from entering the Tuscany building.
African-Americans who attempted to rent
an apartment from Ms. Pat Cellone, the                            On or about August 11, 1998, the
operating owner for the buildings owned                   Mitchells filed a complaint with the United
by P&R Properties, Inc. and P&R                           States Department of Housing and Urban
Properties, LP,1 in late June, 1998. The                  Development (“HUD”), alleging that the
Mitchells were shown two apartment                        Appellees’ actions violated the Fair
complexes: the racially homogenous                        Housing Act, 42 U.S.C. § 3601 (2003), et
T u sc a n y A partme nts buildin g in                    seq. (“FHA”). The Secretary of HUD
Pittsburgh, Pennsylvania, and the racially                referred the complaint to the Pennsylvania
heterogeneous Carnegie Apartments                         Human Relations Commission (“PHRC”),
b u i l d in g , l o c a t e d in C a r n e g i e ,       as required by 42 U.S.C § 3610(f). PHRC
Pennsylvania. Both complexes are owned                    initiated an investigation and determined
by P&R Properties. The Mitchells chose                    there was probable cause to credit the
to rent an apartment in the Tuscany                       Mitchells’ allegations. Both the M itchells
building, and on June 30, 1998, signed a
one-year lease for an apartment in that
                                                             2
building. They also paid the required                           According to the facts alleged in the
application fee, first month’s rent, and the              complaint filed with the Pennsylvania
appropriate security deposit. That same                   Human Rights Commission, the Mitchells
day, Ms. Cellone gave them keys to the                    were told that tenants in the Tuscany
Tuscany apartment, as well as an                          building might be intimidated by the race
electronic access card for the building, and              and size of Mr. Mitchell (referring to him
a garage door opener.                                     as a “black Arnold Schwarzanegger”), and
                                                          that the Mitchells would be more
                                                          comfortable in the Carnegie building since
      1
        We shall refer to appellees P&R                   some of the tenants in that building were
Properties, Inc. and P&R Properties, LP                   African-American. See Appendix to Brief
collectively as simply “P&R Properties.”                  of Appellants, pg. 25.

                                                      2
and A ppellees elected un der the                  their motion was denied.          This appeal
Pennsylvania Human Relations Act, 43               followed.
P.S. § 959(d.1) (Supp. 2004), to have the
                                                                         II.
complaint heard in the Commonwealth
Court of Pennsylvania (as opposed to an                    The Mitchells filed a timely Notice
administrative hearing), where PHRC                of Appeal pursuant to Fed. R. App. P. 4.
would litigate on behalf of the Mitchells.3        We have appellate jurisdiction over this
A trial date was set for sometime in               final order of the District Court pursuant to
February, 2002. Dissatisfied with the              28 U.S.C. § 1291. Where issues of
denial of their motion to intervene, the           statutory interpretation are implicated, we
Mitchells moved to discontinue the action          will exercise plenary review over a district
before the Commonwealth Court on or                court’s decision. See U.S. v. Thayer, 201
about November 29, 2001, which was                 F.3d 214, 219 (3d Cir. 1999).
granted.
                                                                        III.
        On or about October 29, 2001, the
                                                          Because the District Court’s
Mitchells filed this federal complaint in
                                                   decision was based exclusively on the
the United States District Court for the
                                                   wording of 42 U.S.C. § 3613, we will
Western District of Pennsylvania, alleging
                                                   begin, as in all statutory interpretation
both that the Appellees’ actions violated
                                                   cases, with the language of that statute.
the FHA and infringed upon the federal
                                                   See Barnhart v. Sigmon Coal Co., 534
property rights guaranteed to them as
                                                   U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed.
minority citizens pursuant to 42 U.S.C. §
                                                   2d 908 (2002).
1982. The Appellees filed a Motion to
Dismiss, which was granted on November                    An aggrieved person may
17, 2003. See Mitchell, et al. v. Cellone,                commence a civil action in
et al., 291 F. Supp.2d 368 (W.D. Pa.                      an appropriate United States
2003). In that Order, the District Court                  district court or State court
concluded that it was without jurisdiction                not later than 2 years after
to hear the FHA claim, and that the section               the occurrence or the
1982 claim had been filed beyond the two-                 termination of an alleged
year statute of limitations period. The                   disc rimina tory hou sin g
Mitchells moved for reconsideration of                    practice, or the breach of a
this ruling under Fed. R. Civ. P. 59(e), but              c onc il i a ti o n a gr e e me nt
                                                          entered into under this
                                                          subc hapte r , w h i c h e v e r
   3
      The Mitchells sought to intervene in                occurs last, to obtain
their own right before the Commonwealth                   appropriate relief w ith
Court, but that court denied their                        respect to such
application in an unreported memorandum
opinion.

                                               3
       discriminatory housing                       policy); see also N.J. Transit Policemen's
       practice or breach.                          Benev. Ass'n Local 304 v. New Jersey
                                                    Transit Corp., 806 F.2d 451, 453 (3d. Cir.
See 42 U.S.C. § 3613(a)(1) (2003).
                                                    1986) (“In seeking to dis cern
        It is not within the province of this       Congressional intent from the legislative
or any other court to interpret what needs          text, a court must be mindful of the
no interpretation. See Watt v. Alaska, 451          statute’s object and policy and must read
U.S. 259, 266, 101 S. Ct. 1673, 68 L. Ed.           the disputed provision in the context of the
2d 80 n.9 (1981) (noting that, while the            entire statute and the provisions of related
plain-meaning rule is not absolute, “the            statutes.”).
words used, even in their literal sense, are
                                                           The dispute between the parties has
the primary, and ordinarily most reliable,
                                                    focused on the enforcement procedure
source of interpreting the meaning of any
                                                    available for those alleging violations of
writing: be it a statute, a contract, or
                                                    the FHA. Enforcement is accomplished in
anything else”). If a statute is plain in its
                                                    two ways that are relevant here:
terms, we shall apply the legislature’s
                                                    administrative enforcement under 42
instructions as long as they are
                                                    U.S.C. § 3610, and private enforcement
constitutional. See Caminetti v. United
                                                    under section 3613.4 Under section 3610,
States, 242 U.S. 470, 485, 37 S. Ct. 192,
                                                    an aggrieved person may file a complaint
61 L. Ed. 442 (1917) (“It is elementary
                                                    with the Secretary of HUD alleging a
that the meaning of the statute must, in the
                                                    discriminatory housing practice. By its
first instance, be sought in the language in
                                                    terms, section 3610 requires the Secretary
which the act is framed, and if that is
                                                    to refer a housing complaint to a certified
plain, and if the law is within the
                                                    state public agency (if one exists), which
constitutional authority of the law-making
                                                    will shoulder the responsibility for
body which passed it, the sole function of
                                                    investigation and, if warranted,
the courts is to enforce it according to its
                                                    prosecution of a housing discrimination
terms.”). Our consideration of a statute
                                                    claim. See 42 U.S.C. § 3610 (2003).
must be in its entirety–we will not confine
                                                    Alternatively, section 3613 allows for a
our interpretation to a single section, nor
                                                    civil cause of action in either State or
will we ignore the legislative scheme of
                                                    Federal court within two years5 after any
which a particular provision is part where
the wording of a statute is not certain. See
U.S. Nat. Bank of Oregon v. Independent                    4
                                                         A third option, enforcement by the
Ins. Agents of America, Inc., 508 U.S.
                                                    Attorney General, is authorized by 42
439, 455, 113 S. Ct. 2173, 124 L. Ed. 2d
                                                    U.S.C.
402 (1993) (“[The courts] must not be
                                                    § 3614.
guided by a single sentence or member of
a sentence, but look to the provisions of              5
                                                         This two-year statute of limitations is
the whole law, and to its object and                tolled during the time an administrative

                                                4
alleged housing discrimination, whether or        Amendments Act of 1988, Pub. L. No.
not an administrative complaint has been          100-430, 1998 U.S.C.C.A.N. 2173, 2177.6
filed under section 3610. See 42 U.S.C. §         Simply put, those most affected by racial
3613(a)(2) (2003) (“An aggrieved person           discrimination in housing were primarily
may commence a civil action . . . whether         low income minorities who did not have
or not a complaint has been filed under           the resources to privately enforce the
section 3610(a) of this title and without         FHA, at least not on a scale sufficient to
regard to the status of any such complaint.       achieve the government’s goal of
. . ”) (emphasis added). The only                 eradicating housing discrimination. As
limitation on this private avenue of              such, the one-hundredth Congress moved
enforcement is that an aggrieved person           to strengthen the FHA through the 1988
may not initiate a private suit if                amendments. See generally Fair Housing
administrative enforcement has been               Amendments Act of 1988, Pub. L. No.
activated and such enforcement has led to         100-430, 102 Stat 1619 (2003) (“FHAA”).
the commencement of an administrative             One of the declared purposes of the
hearing on the record. See 42 U.S.C. §            FHAA was to alleviate the burden placed
3613(a)(3) (2003). As we read the statute,        on private individuals and fair housing
the plain language of sections 3610 and           organizations who, prior to amendment,
3613 state that a dual enforcement scheme         should ered primary enforcement
exists that allows an aggrieved party to          responsibility.       One of the key
pursue both private and administrative            modifications made to the FHA was the
enforcement until such time as either             additi on of section 3 610, th e
avenue has achieved resolution of the             administrative enforcement mechanism.
claim.                                            It was envisioned that this administrative
                                                  mechanism would become the primary
        Our reading of section 3613 is
                                                  means of enforcing FHA claims, and that
bolstered by the FHA’s legislative history.
                                                  it would be an alternative to the private
Congress enacted the FHA following the
                                                  right of action that had been traditionally
urban unrest of the mid-1960s. The FHA,
                                                  available. See House Report (Judiciary
in its original form, provided for a clear
                                                  Committee) at 2178.          This history
national policy against discrimination in
                                                  demonstrates to our satisfaction that
housing, but only provided for private
                                                  Congress envisioned that a complainant
enforcement.       Twenty years later,
                                                  could sue through HUD and its state
Congress concluded that a primary
                                                  commission counterparts or initiate
weakness of the FHA was the limited
                                                  litigation privately: the choice of one
means of enforcing it. See House Report
                                                  alternative would not foreclose the other
(Judiciary Committee), Fair Housing


                                                     6
proceeding is pending. See 42 U.S.C. §                  No Senate report was submitted with
3613(a)(1)(B).                                    this legislation.

                                              5
avenue of redress. See House Report                          The Appellees would have us read
(Judiciary Committee) at 2197 (“Dismissal            the conjunction “or” in section 3613(a)(1)
by the Secretary [of an administrative               as preventing an aggrieved party from
complaint] does not preclude an aggrieved            bringing suit in federal court if an
person from filing a civil action under              administrative complaint resulted in any
[section 3613], but indicates the end of the         connection whatsoever with state court.
Secretary’s involvement with that                    This is an interpretation we cannot accept,
complaint.”). Changes made to other                  as it twists the clear language of sections
provisions of the FHA bear this out: the             3610 and 3613, and ignores the policies
Committee noted that the amendment                   and goals articulated in the legislative
made to 42 U.S.C. § 3612(f) required                 history of the FHA and its subsequent
“cessation of administrative proceedings             amendments. We cannot and will not
at the commencement of a trial brought by            distort section 3613 based simply upon
the same aggrieved person challenging the            this restrictive reading of the conjunction
same alleged discriminatory housing                  “or.”
practice . . . this is intended to prevent
                                                             Turning to the specific facts of this
multiple adjudication of the same alleged
                                                     case, we conclude that the Mitchells’
discriminatory housing practice.” See Id.
                                                     actions fell within the enforcement
at 2198 (emphasis added); see also
                                                     scenario envisioned by the Congress when
generally 42 U.S.C. § 3612 (2003).
                                                     it enacted, and later amended, the FHA.
Moreover, the Committee report stated
                                                     Administrative enforcement of the FHA
that “an aggrieved person is not required
                                                     was initiated by their complaint to the
to exhaust the administrative process
                                                     Secretary of HUD, as authorized by
before filing a civil action . . . the
                                                     section 3610(a).          The Secretary
administrative proceeding [is to] be a
                                                     thereinafter referred the complaint to the
primary, but not exclusive, method for
                                                     PHRC (the certified state agency), per
persons aggrieved by discriminatory
                                                     section 3610(f). From that point forward,
housing practices to seek redress.” See Id.
                                                     all activity with regard to the Mitchells’
at 2200 (emphasis added). While under
                                                     FHA claim was handled through PHRC,
42 U.S.C. § 3612(f), a complainant cannot
                                                     in accordance with 43 P.S. § 959 (1991 &
pursue administrative proceedings once
                                                     Supp. 2004).7 The Mitchells were given
trial has begun in a federal court suit, there
                                                     the option to have their complaint
is nothing to prevent him from pursuing
                                                     prosecuted in either an internal
both approaches until that time. The
                                                     administrative hearing, or in an action
statements of the House Judiciary
                                                     prosecuted by the PHRC in
Committee, when coupled with Title
VIII’s goal of ending discrimination in
housing, support a finding that the                       7
                                                          43 P.S. § 959 is the Pennsylvania
methods of FHA enforcement should be                 counterpart to FHA § 3610's
construed broadly by the courts.                     administrative enforcement scheme.

                                                 6
Commonwealth Court, pursuant to 43 P.S.             chose to proceed judicially before the
§ 959(d.1) (Supp. 2004), 8 and all parties          Commonwealth Court. The civil litigation
                                                    commenced on behalf of the Mitchells by
                                                    PHRC was, as we see it, in furtherance of
  8
      Subsection d.1 reads, in relevant part:
                                                    the administrative complaint they
                                                    originally filed with HUD under section
        When notice of hearing is
                                                    3610, and hence part of the administrative
        given as set forth in
                                                    enforcement mechanism. We cannot
        subsection (d) and an
                                                    conclude this was a separate, private
        e l e c ti o n p roce d u r e is
                                                    enforcement action by the Mitchells, as the
        required by the Fair Housing
                                                    Appellees insist. The Mitchells therefore
        Act, either party may elect
                                                    never exercised their option to bring a
        to have the claim asserted in
                                                    private suit in state or federal court under
        the complaint decided in a
                                                    section 3613 until they filed the present
        civil action brought under
                                                    action on or about October 29, 2001. We
        the original jurisdiction of
                                                    find nothing discordant between the FHA
        Commonwealth Court. The
                                                    enforcement scheme envisioned by
        written notice of the
                                                    Congress and the manner in which the
        Commission shall be sent to
                                                    Mitchells chose to proceed with their
        all parties and will inform
                                                    discrimination claim. Therefore, we
        them of their right to take
                                                    conclude that the District Court was in
        civil action. An election
                                                    error when it found that it lacked
        must be made within twenty
                                                    jurisdiction to hear the Mitchells’ case.
        days after receipt of the
        notice of hearing. A party
                                                                        IV.
        making this election shall
        notify the Commission and                          Finally, we note that the Mitchells’
        all other parties. If an                    section 1982 claim was not substantively
        election for civil action is                argued in their brief before us. Where an
        made by either party, the                   appellant presents an issue in his statement
        Commission shall, within                    of issues raised on appeal, but not in the
        thirty days from the date of                argument section of his brief, he has
        election, commence and                      “abandoned and waived that issue on
        maintain a civil action on
        behalf of the complainant
        provided, however, that,                           General shall, within thirty
        whenever the Attorney                              days from the date of
        General signs and files the                        election, commence and
        complaint pursu ant to                             maintain a civil action on
        subsection (a), the Attorney                       behalf of the complainant.

                                                7
appeal.”     Travitz v. Northeast Dep’t
ILGWU Health & Welfare Fund, 13 F.3d
704, 711 (3d Cir. 1994). Here, the
Mitchells reference section 1982 twice in
their issue statement, but fail to articulate
in their argument section why the court
below was incorrect when it dismissed this
claim. As such, we conclude that this
issue has been waived.
                     V.
       For the foregoing reasons, we
reverse the District Court with regard to its
dismissal of the Mitchells’ FHA claim and
remand this case for further proceedings.
We deem the issue of the District Court’s
dismissal of the Mitchells’ section 1982
claim to have been waived.




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