Mitchell v. Cellone

• Court: Court of Appeals for the Third Circuit
• Decided: November 1, 2004
• Docket: 04-1063
• Status: Published

Opinion

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Mitchell v. Cellone Precedential or Non-Precedential: Precedential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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.