First American Financial Corporation v. Edwards Brief for Amici Curiae

This item is featured in:

Janell Byrd-Chichester Oral History

    No. 10-708

In the

Supreme (Eourt of the litniteh States

FIR ST A M E RICAN  FIN A N C IA L CORPORATION,
et al., Petitioners,

v.

DENISE P, EDWARDS, Respondent.

On W rit of Certiorari to the United States 
Court of A ppeals for the Ninth Circuit

BRIEF FOR AMICI CURIAE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW, NAACP LEGAL 

DEFENSE & EDUCATIONAL FUND, INC., WASHINGTON 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND 
URBAN AFFAIRS, AND NATIONAL FAIR HOUSING 

ALLIANCE IN SUPPORT OF RESPONDENT

Stephen M. Dane 
Relman, Dane 

& Colfax PLLC 
1225 19th Street, N W  
Suite 600
Washington, DC 20036

John Payton 
Debo P. A degbile 
Elise C. Boddie 
Ryan D owner 
NAACP Legal Defense & 

E ducational F und, Inc. 
99 Hudson Street 
16th Floor
New York, NY 10013

Janell M. Byrd 
Counsel o f Record 

Zachary Best 
M ehri & Skalet, PLLC 
1250 Connecticut Ave., N W  
Suite 300
Washington, DC 20036 
(202) 822-5100 
jbyrd@findjustice.com

Jon M. Greenbaum 
Joseph D. R ich'
John K. D iPaolo 
L awyers’ Committee for 

Civil R ights Under L aw 
1401 New York Ave., N W  
Suite 400
Washington, DC 20005

(Additional Counsel Listed on Inside Cover)

238696

mailto:jbyrd@findjustice.com


L eslie P roll 
NAACP L egal Defense & 

E ducational F und, Inc. 
14441 Street, N W  
10th Floor
Washington, DC 20005 
(202) 682-1300

M egan K. W hyte 
Washington Lawyers’ 

Committee for C ivil R ights 
and Urban A ffairs 

11 Dupont Circle, N W  
Suite 400
Washington, DC 20036 
(202) 319-1000



TABLE OF CONTENTS

TABLE OF C O N T E N T S ..........................................  i

TABLE OF CITED A U T H O R IT IE S ...................... iv

IN TEREST OF A M IC I............................................... 1

SUM M ARY OF THE A R G U M E N T........................ 3

AR G U M E N T.................................................................. 6

I. P e t it io n e rs  and R e sp o n d e n t  A g r e e
that Havens Realty Corp. v. Coleman 
is C o r r e c t ly  D ecid ed  and N o P a rty  
H as C a lled  fo r  R e co n s id e ra t io n  or 
Modification of that D ecision.......................... 6

II. T h e P r in c ip le  A f f ir m e d  in H avens 
and O ther C ases that C on gress  Can 
D efin e  L ega l R ights, the Invasion o f 
W hich Constitutes Injury for Purposes 
o f  A rtic le  II I , Is W ell-E stablished  in
the Court’s Standing Jurisprudence............. 8

III. Havens Embraces Congressionally Defined
Injuries in Support o f Tester Standing 
And D oes Not Require the P laintiff to 
A llege an In jury D ifferent From  or in 
Addition to that Defined by C on gress ......... 13

i

Page



II

Table of Contents

A. In jury  Based on the Denial o f the
C on gressionally  C reated  R ight to 
T ru th fu l In form a tion  A b ou t the 
Availability of H ousing............................ 16

B. In jury Based on the Denial o f the
C ongressionally  C reated  R ight to 
Equal Treatment on the Basis o f Race 
R egard in g  Inform ation A bout the 
Availability of H ousing............................ 17

IV. The Congressional Decision to Allow Parties 
to the Conflicted Transactions to Enforce the 
Statutory Prohibition on Harmful Practices 
Does Not Offend Article III ............................ 20

A. Once Threshold Injury is Established,
It D oes  N ot O ffen d  A r t ic le  I I I  
That C ongress Has Structured an 
E nforcem ent Schem e That A llow s 
Involved Parties to Sue, But Because 
o f Difficulties of Proof Relieves Them 
of Making an Additional, More Specific 
Showing of Financial Harm...................  20

Page



Ill

Table of Contents

Page

B . This Case is Far From the Outer Limits 
o f Judicially Cognizable Injuries as 
Plaintiff Alleges that She Was a Party 
to a Transaction Involving a Kickback 
Prohibited by Congress and She Wishes
to Sue about that Transaction...............  26

CO N CLU SIO N .............................................................  28



IV

TA BLE OF CITED  AU TH O RITIES

CASES

Alien v. Wright,
468 U.S. 737 (1984)...................................................  27

Alston v. Countrywide Fin. Corp.,
585 F.3d 753 (3d Cir. 2009)......................................  21

Am. Trucking Ass’ns v. United States,
344 U.S. 298 (1953)...................................................24-25

Babbitt v. UFWNat’l Union,
442 U.S. 289 (1979)...................................................  9

Bangerter v. Orem City Corp.,
46 F.3d 1491 (10th Cir. 1995)..................................  7

Cent. Ala. Fair Pious. Ctr., Inc. v:
Powder Realty Co.,
236 F.3d 629 (11th Cir. 2000)....................... .. 6-7

City of Chicago v.
Matchmaker Real Estate Sales Ctr., Inc.,
982 F.2d 1086 (7th Cir. 1992)................. ................  20

Dep’t of Air Force v. Rose,
425 U.S. 352 (1976)...................................................  12

Dep’t of Justice v. Julian,
486 U.S. 1 (1988).......................................................  12

Page



V

Dep’t of Justice v.
Reporters Comm, for Freedom of the Press,
489 U.S. 749 (1989)...................................................  12

Evers v. Dwyer,
358 U.S. 202 (1958)................................................... 18

Fair Hous. of Marin v. Combs,
285 F.3d 899 (9th Cir. 2002)....................................  4

FBI v. Abramson,
456 U.S. 615 (1982)...................................................  12

FEC v. Akins,
524 U.S. 11 (1998)................................................ .4 ,12 ,17

Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) .............................................5 ,8-9 ,25

Gemsco Inc. v. Walling,
324 U.S. 244 (1945)...................................................  24

Gladstone, Realtors v. City of Bellwood,
441 U.S. 91 (1979).................................................. .3 ,9 ,16

Gratz v. Bollinger,
539 U.S. 244 (2003)................................................... 9

Hardin v. Kentucky Utils Co.,
390 U.S. 1 (1968)

Cited Authorities

Page

10



VI

Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982)................. .............................passim

Heckler v. Mathews,
465 U.S. 728 (1984)...................................................  9,19

Hooker v. Weathers,
990 F.2d 913 (6th Cir. 1993)....................................  7

Lincoln v. Case,
340 F.3d 283 (5th Cir. 2003)............... ..................... 6

Linda R.S. v. Richard D.,
410 U.S. 614 (1973).....................................................10,14

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992).................................. passim

Massachusetts v. EPA,
549 U.S. 497 (2007)................... .......................3 ,4 ,11 ,12

Meese v. Keene,
481 U.S. 465 (1987)................................................... 9

Mourning v. Family PubVns Serv.,
411 U.S. 356 (1973) ............................................... passim

Ne. Fla. Chapter of the Associated Gen.
Contractors of Am. v. City of Jacksonville,
508 U.S. 656 (1993)

Cited Authorities

Page

18



Vll

Cited Authorities

N. Am. Co., v. SEC,
327 U.S. 686 (1946)...................................................  24

Pierson v. Ray,
386 U.S. 547 (1967)...................................................  18

Plains Commerce Bank v.
Long Family Land and Cattle Co.,
554 U.S. 316 (2008)............... ...................................  9

Public Citizen v. Dep’t of Justice,
491 U.S. 440 (1989)................................................4 ,11,12

Ragin v. Harry Macklowe Real Estate Co.,
6 F.3d 898 (2d Cir. 1993)..........................................  7

Schelsinger v. Reservists to Stop the War,
418 U.S. 208 (1974).....................................................  27

Sierra Club v. Morton,
405 U.S. 727 (1972) ......................................... 10,11,14

Spann v. Colonial Vill, Inc.,
899 F.2d 24 (D.C. Cir. 1990)....................................  7,26

Sprint Commc’ns Co. v. APCC Servs.,
554 U.S. 269 (2008)...................................................  9

Summers v. Earth Island Inst.,
555 U.S. 488,129 S. Ct. 1142 (2009).....................  8, 9

Page



Vill

Tignerv. Texas,
310 U.S. 141 (1940).....................................................  25

Trafficante v. Metro. Life Ins.,
409 U.S. 205 (1972)...........................................2 ,9 ,10 ,14

United States v. Balistrieri,
981 F.2d 916 (7th Cir. 1992) .............................. .. 7

United States v. Weber Aircraft Corp.,
465 U.S. 792 (1984)...................................................  12

Valley Forge Christian College v. Ams. United 
for the Separation of Church and State,
454 U.S. 464 (1982)...................................................  27

Vt. Agency of Natural Res. v.
United States ex rel. Stevens,
529 U.S. 765 (2000)...................................................  9

Vill. o f Arlington Heights v.
Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977)..................................................  8

Vill. ofBellwood v. Dwivedi,
895 F.2d 1521 (7th Cir. 1990)..................................  20

Vill. of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926)

Cited Authorities

Page

24



IX

Cited Authorities

Warth v. Seldin,
422 U.S. 490 (1975)...............................................passim

CONSTITUTIONAL AND STATUTORY PROVISIONS

Page

Fair Housing Act, 42 U.S.C. § 3601, et seq................6,14

Fair Housing Amendments Act of 1988,
Pub. L. 100-430,102 Stat. 1619-39 (1988 )........... 6

Federal Advisory Committee Act, 5 U.S.C.
App. § 1 et seq............................................................  11

Federal Election Campaign Act, 2 U.S.C.
§ 431(4)........................................................................  12

Mortgage Settlement Costs: Hearings Before 
the Subcomm. on Housing and Urban Affairs 
of the S. Comm, on Banking, Housing and 
Urban Affairs, 92d Cong., 73-74 (M ar.1-3,1972). 21

Hearings on S. 1358, S. 2114, and S. 2280 Before 
the Subcomm. on Housing and Urban Affairs 
of the Senate Comm, on Banking and Currency,
90th Cong., 1st Sess. (1967)....................................  19

R ea l E s ta te  S e ttlem en t P ro c e d u r e s  A ct ,
12 U.S.C. § 2601, e ts eq . ..............................20, 21,22, 27



X

Real Estate Settlement Procedures Act— Controlled 
Business: Hearings Before the Subcomm. on 
Housing and Community Development of the 
H. Comm, on Banking, Finance and Urban 
Affairs, Ser. No. 97-24 (Sept. 15-16,1981)...........21,22

S. Rep. No. 93-866 (1974)............................................. 22

Truth in Lending Act, 15 U.S.C. § 1604, et seq.. . . .  23

U.S. D ep ’t of Justice , A ntitrust D ivision , 
R eport on T he P ricing  and M arketing  
of I nsurance  (1977) reprin ted  in part 
in 1981 House Hearings 221-83,273 ...................  22

M ISCELLAN EO U S

Debbie G. Bocian, et al., Center for Responsible 
Lending, Unfair Lending: The Effect of Race and 
Ethnicity on the Price of Subprime Mortgages 
(2 0 0 6 )..........................................................................  7

Douglas M assey & Nancy Denton, Am erican 
Apartheid: Segregation and the Making of the 
Underclass (1993).....................................................  6

P eat, M arw ick , M itchell & Co., R esearch 
on R eal  E state S ettlem en t  P ractices 
an d  C o st s : B a s e l i n e  S tu d y  of T it le  
Insurance Industry (Feb. 1980)............................ 21

Cited Authorities

Page



XI

Cited Authorities

R e s id e n t ia l  S e g r e g a t io n  an d  H o u s in g  
Discrimination in the United States: Violations of 
the International Convention on the Elimination 
of All Forms of Racial Discrimination, A  Report to 
the U.N. Committee on the Elimination of Racial 
Discrimination (2008), available at http://www. 
nationalfairhousing.org/FairHousingResources/ 
ReportsandResearch/tabid/3917/Default.aspx

Page

R obert G. Schwemm, Housing Discrimination:
Law and Litigation (2010)......................................  16

M argery A. Turner, et al., Report to the U.S. 
Department of Housing and Urban Development, 
Discrimination in Metropolitan Housing Markets: 
National Results from  Phase I H DS 2000 
(2 0 0 2 )..........................................................................  7

John Yinger, Closed Doors, Opportunities Lost:
The Continuing Costs of Housing Discrimination 
(1995)........................................ ...................................  6

http://www


1

IN TER EST OF A M IC I1

Amici are civil rights organizations committed to 
the effective enforcem ent of anti-discrim ination laws 
and the preservation of access to the courts for victims 
of discrimination.

The Law yers’ Com m ittee for Civil Rights Under 
Law (“Lawyers’ Committee” ) is a nonprofit civil rights 
organization that was founded in 1963 by the leaders of the 
American bar, at the request of President Kennedy, to help 
defend the civil rights of racial minorities and the poor. 
The Lawyers’ Committee has independent local affiliates 
in Boston, Chicago, Denver, Los Angeles, Philadelphia, 
San Francisco, Jackson, MS, and Washington, D.C. Among 
its fields of specialization, the Lawyers’ Committee works 
with communities across the nation to combat, protest, and 
remediate discriminatory employment, voting, education, 
housing and lending practices. In the past, the Lawyers’ 
Committee has been involved as amicus curiae in cases 
before the Supreme Court involving standing issues, 
including Havens Realty Cory. v. Coleman, 455 U.S. 363 
(1982), and Warth v. Seldin, 422 U.S. 490 (1975).

1. Pursuant to Supreme Court Rule 37.6, counsel for amici 
state that no counsel for a party authored this brief in whole 
or in part, and no person or entity, other than amici, made a 
monetary contribution to the preparation or submission of the 
brief. Pursuant to Supreme Court Rule 37.3, amici note that on 
July 11 and August 12, 2011, counsel for Petitioners and counsel 
for Respondent, respectively, filed blanket consents to the filing 
of amicus curiae briefs, in support of either or neither party.



2

The N AACP Legal Defense & Educational Fund, 
Inc. (“ L D F ”) is a non-profit legal organization established 
to assist African Americans in securing their civil and 
constitutional rights. For more than seven decades, LDF 
attorneys have represented parties and appeared as 
amicus curiae in litigation before the U.S. Supreme Court, 
including appearances in standing cases, such as Havens 
Realty Corp. v. Coleman, 455 U.S. 363 (1982), Trafficante 
v. Metropolitan Life Insurance, 409 U.S. 205 (1972), and 
Warth v. Selclin, 422 U.S. 490 (1975), which have shaped 
the ability o f civil rights plaintiffs to access federal 
courts. LDF attorneys have also litigated cases under 
consumer protection laws that inure to the benefit o f racial 
minorities, including Mourning v. Family Publications 
Service, 411 U.S. 356 (1973).

The W ashington  L a w yers ’ Com m ittee for Civil 
Rights and Urban Affairs (“ The Committee” ) is a non­
profit civil rights organization established to eradicate 
discrimination and entrenched poverty in the Washington, 
D.C. metropolitan area, including Maryland and Virginia. 
Leveraging its own broad expertise in civil rights litigation 
with the resources of Washington, D.C.’s private bar, the 
Committee’s litigation has a national impact in the areas 
of housing, lending, employment, public accommodations, 
education, im m igrant and refugee rights, and other 
aspects of urban life. By litigating fair housing cases for 
approximately forty years, the Committee has amassed 
expertise in issues o f standing in fair housing cases, as 
well as in fair housing law generally.

The National Fair Housing Alliance (“N FH A” ) is a 
consortium of private, nonprofit fair housing organizations, 
state and local civil rights groups, and individuals.



3

N F H A  was founded in 1988 to identify and eliminate 
discrimination in housing markets and ensure equal access 
to housing for all people protected by national, state, and 
local civil rights laws. Through education, outreach, policy 
initiatives, advocacy and enforcement, N FH A  promotes 
equal housing and equal lending opportunities. Relying 
on the Fair Housing Act and Supreme Court standing 
decisions in terp retin g  it, including Havens Realty 
Corp. v. Coleman, 455 U.S. 363 (1982), and Gladstone, 
Realtors v. City o f Bellwood, 441 U.S. 91 (1979), N FH A  
and its members have undertaken important enforcement 
initiatives in cities and states across the country, including 
refusals to lend and other discriminatory practices by 
lenders. Those efforts have contributed significantly to 
the nation’s efforts to eliminate discriminatory lending 
practices.

SU M M ARY OF TH E ARGU M EN T

Amici submit this brief in support of the Respondent.

The Parties agree that Havens Realty Corp. v. 
Coleman, 455 U.S. 363 (1982), is correctly decided and 
no Party or Amicus has asked the Court to reconsider or 
modify that decision in any way.

The principle affirmed in Havens, that Congress can 
define rights, the invasion of which will constitute injury 
for purposes o f Article III, is well established in this 
Court’s standing jurisprudence. The Court recognized 
this principle before Havens in Warth v. Seldin, 422 U.S. 
490, 500 (1975), and after it in Lujan v. Defenders of 
Wildlife, 504 U.S. 555, 578 (1992), and, more recently, in 
Massachusetts v. EPA, 549 U.S. 497,516 (2007). This Court



4

and lower federal courts have applied it in numerous cases, 
including Public Citizen v. Department of Justice, 491 
U.S. 440 (1989), andFECv. Akins, 524 U.S. 11 (1998). The 
Court has also held in numerous cases that “ intangible” 
injury, which is the type o f injury at issue here, can be 
sufficient for Article III purposes. See, e.g., Public Citizen 
v. Dep’t o f Justice, FEC v. Akins, and Massachusetts v. 
EPA; see also note 8, infra. Thus, there is no need for 
the Court to resolve the differences between the Parties 
regarding the particular congressionally identified injury 
recognized in the Havens case in order to answer the 
Question Presented in this Case.

Amici further submit that, while the Havens opinion 
can fairly be read to embrace two congressionally identified 
injuries (distinct from  causes of action) as sufficient to 
support Article III standing for testers, the Court did not 
require a showing of injury different from or in addition 
to those identified by Congress. The injuries recognized 
were derived from 1) the congressionally created right to 
truthful information regarding the availability of housing, 
and 2) the congressionally created right to be free from 
unequal treatment on the basis o f race (i.e. discriminatory 
misrepresentations) regarding the availability of housing. 
Either or both congressionally defined intangible injures 
were sufficient— without allegations of emotional distress 
or stigm a —  to support tester standing pursuant to 
Havens. Accord Public Citizen, 491 U.S. at 449 (holding 
that nothing more than the congressionally defined injury 
was required to be alleged for purposes of standing).

Once the threshold injury is established —  here, a 
conflict o f interest in the sale o f loan settlement services 
in the form of a kickback -  it does not offend Article III



5

that Congress has structured a remedial scheme that 
allows private citizens involved in private transactions 
(persons who discover kickbacks in their loan transactions) 
to utilize the courts, but who, because o f difficulties 
of proof, are relieved of making an additional, specific 
showing of economic harm. Nor has the Court required, 
in this context, that the remedial scheme adopted by 
Congress require proof o f a precise fit between persons 
with transactions involving practices prohibited by the 
statute and all the harms about which Congress expressed 
concern in enacting the statute. See Mourning v. Family 
Publ’ns Serv., Inc., 411 U.S. 356 (1973); see also Friends 
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 
528 U.S. 167, 181-84 (2000) (recognizing selection of an 
appropriate remedial scheme as a legislative matter). 
W here Congress has found a systemic effect of kickback 
schemes on the market, to require under A rticle III 
that each person with a transaction involving a kickback 
prove an actual overcharge, as Petitioners suggest, would 
disrupt the enforcement scheme selected by Congress, 
while serving no legitimate interest under Article III.

Finally, because this case involves a dispute between 
private parties regarding a right defined by Congress in 
connection with conflicts o f interest in private housing 
transactions and Ms. Edwards was personally involved 
in such a transaction, it is far from the outer limits of 
the “case” or “controversy” requirement o f Article III 
to allow Ms. Edwards to use the federal courts to seek 
the relief authorized by Congress. The Article III injury 
precedents o f this Court almost all involve suits against 
the government and assertions o f generalized grievances 
or undifferentiated public interests. Lujan, 504 U.S. at 
573-74, 576-77. This is not such a case.



6

ARGUMENT

I. Petitioners and Respondent Agree that Havens 
Realty Corp. v. Coleman is Correctly Decided 
and No Party Has Called for Reconsideration or 
Modification of that Decision

In a unanimous 1982 decision in Havens Realty Corp. 
v. Coleman, 455 U.S. 363 (1982), the Court held that 
testers and fair housing organizations can have standing 
to sue under the Fair Housing Act, 42 U.S.C. § 3601, 
et seq,2 The Court’s ruling made possible meaningful 
enforcement of the Act to address widespread, entrenched 
racial segregation and discrim ination in the nation’s 
housing market.3 The need for the Act was underscored 
by Congress’s adoption of the Fair Housing Amendments 
Act o f 1988, Pub. L. 100-430, 102 Stat. 1619-39 (1988), 
strengthening the A ct ’s enforcem ent provisions and 
adding protections for persons with disabilities and 
families with children. For almost thirty years, federal 
courts have followed the Havens decision in cases brought 
to enforce the fair housing mandate of Congress.4 Despite

2. The Court defined testers as “individuals who, without an 
intent to rent or purchase a home or apartment, pose as renters 
or purchasers for the purpose of collecting evidence of unlawful 
steering practices.” 455 U.S. at 373.

3. For the history of housing discrimination in the United 
States see John Yinger, Closed Doors, Opportunities L ost: T he 
Continuing Costs of Housing D iscrimination (1995); Douglas 
Massey & Nancy Denton, A merican A partheid: Segregation and 
the Making of the Underclass (1993).

4. See, e.g., Lincoln v. Case, 340 F.3d 283,289 (5th Cir. 2003); 
Fair Housing of Marin v. Combs, 285 F.3d 899,902 (9th Cir. 2002); 
Cent. Alabama Fair Housing Ctr., Inc. v. Lowder Realty Co., 236



7

significant efforts by private parties and state and federal 
governments to combat housing discrimination and some 
recent reduction in the number of housing discrimination 
incidences reported, the nation’s housing market continues 
today to be marked by a high degree of segregation and 
widespread discriminatory practices.5 This underscores 
the ongoing critical importance of the Havens decision 
in furthering Congress’s goal of a fair, open and non- 
discriminatory housing market.

Petitioners and Respondent both discuss Havens 
in their briefs.6 W hile they d iffer about the specific 
congressionally defined injury recognized by the Court in 
Havens and whether it supports a finding o f injury in this

F.3d 629, 639 (11th Cir. 2000); Bangerter v. Orem City Corp., 46 
F.3d 1491,1497 (10th Cir. 1995); Ragin v. Harry Macklowe Real 
Estate Co., 6 F.3d 898, 904 (2d Cir. 1993); Hooker v. Weathers, 
990 F.2d 913,915 (6th Cir. 1993); U.S. v. Balistrieri, 981 F.2d 916, 
929 (7th Cir. 1992); Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 
(D.C. Cir. 1990).

5. See generally R esidential Segregation and Housing 
D iscrimination in the United States: V iolations of the 
International Convention on the E limination of A ll Forms 
of R acial D iscrimination, A R eport to the U.N. Committee 
on the E limination of Racial D iscrimination (2008), available 
at http://www.nationaIfairhousing.org/FairHousingResources/ 
ReportsandReseareh/tabid/3917/Default,aspx; Margery A. 
Turner, et al., R eport to the U.S. Department of Housing and 
Urban Development, D iscrimination in Metropolitan Housing 
Markets: National R esults from Phase I HDS 2000 (2002); 
Debbie G. Bocian, et al., Center for R esponsible L ending, 
Unfair L ending: The E ffect of Race and Ethnicity on the Price 
of Subprime Mortgages (2006).

6. Petitioners’ Brief at 12, 15, 21, 30; Respondent’s Brief at 
38, 39.

http://www.nationaIfairhousing.org/FairHousingResources/


8

case, no Party or supporting Amicus questions the Court’s 
ruling in Havens or asks that the decision be reconsidered 
or modified in any way. Because the Court has for over 30 
years affirmed the principle that Congress can identify 
new injuries for purposes o f Article III standing and has 
in many contexts determined that particular intangible 
injuries are sufficient for Article III purposes, see Section 
II below, Amici submit that there is no need and the Court 
should not attempt to resolve the Parties’ differences 
about the injury recognized in Havens in order to answer 
the Question Presented here. This is particularly true 
because that issue is not presented in a concrete factual 
context nor fully briefed on the merits.7

II. The Principle Affirm ed in Havens and Other 
Cases that Congress Can Define Legal Rights, the 
Invasion of Which Constitutes Injury for Purposes 
of Article III, Is Well-Established in the Court’s 
Standing Jurisprudence

In order to satisfy  the “ ca se” or “ con troversy” 
requirement of Article III standing “ the plaintiff still must 
allege a distinct and palpable injury to himself.” Warth 
v. Seldin, 422 U.S. 490, 501 (1975). Congress cannot, by 
statute, remove the injury in fact requirement. Summers 
v. Earth Island Inst., 555 U.S. 488,129 S. Ct. 1142,1151 
(2009). The injury itself, however, is not required to be 
of a pecuniary or physical nature. See Vill. of Arlington 
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262- 
63 (1977). It may involve an aesthetic, conservational 
or recreational interest. Friends o f the Earth, Inc. v.

7. Nor does this case present any question or cast any doubt 
on the use of testers to collect evidence of housing discrimination, 
or on the admissibility of that evidence in fair housing lawsuits.



9

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181- 
84 (2000) (damage to environmental group m em bers’ 
recreational, aesthetic and economic interests because 
of their reasonable concern over discharges in river, even 
without showing that environment had actually been 
harmed); accord Summers, 129 S. Ct. at 1149 (it will suffice 
even if the harm affects the “mere esthetic interests o f the 
plaintiff” ).8 The Court has acknowledged a “ broadening 
[of] the categories of injury” that will support Article III

8. This Court has recognized a broad range of largely 
intangible, noneconomic, nonphysical injuries as adequate bases 
for Article III standing. See, e.g., Plains Commerce Bank v. 
Long Family Land and Cattle Co., 554 U.S. 316, 326 (2008) 
(judicially imposed requirement to undo a sale of land and to 
sell land to a different buyer, even for same amount of money); 
Sprint Commc’ns. Co. v. APCC Servs., 554 U.S. 269, 274-75 
(2008) (payphone operator’s contractual claim for payment from 
long-distance carrier as assigned to billing and collection agency 
for flat fee regardless of outcome of suit); Gratz v. Bollinger, 
539 U.S. 244, 262 (2003) (denial of opportunity to compete on an 
equal basis without regard to race); Vt. Agency of Natural Res. v. 
United States ex rel. Stevens, 529 U.S. 765, 773-74 (2000) (injury 
suffered by United States in suit by qui tarn relator); Meese v. 
Keene, 481 U.S. 465, 473 (1987) (damage to personal, political 
and professional reputation of attorney and politician due to 
Justice Department’s designation of films he wished to show as 
“political propaganda”); Heckler v. Mathews, 465 U.S. 728, 739- 
40 (1984) (stigmatization and perpetuation of stereotypes due to 
discriminatory treatment); Babbitt v. UFWNat’l Union, 442 U.S. 
289,298 (1979) (credible threat of prosecution for activity protected 
by First Amendment); Gladstone Realtors v. Bellwood, 441 U.S. 
91,109-115 (1979) (village’s loss of racial balance and stability and 
individuals’ loss of social, professional and economic benefits of 
living in an integrated community); Trafficante v. Metro. Life Ins. 
Co., 409 U.S. 205, 208-210 (1972) (tenants’ loss of social, business 
and professional advantages and embarrassment and economic 
damages due to living in a non-integrated apartment complex).



10

standing, but it has not abandoned the requirement of 
injury. Sierra Club v. Morton, 405 U.S. 727, 738 (1972).

In recognition of the power of Congress under Article 
I of the Constitution to make the laws and its status as 
a co-equal branch o f our government, the Court has also 
repeatedly affirm ed that “ [t]he actual or threatened 
injury required by Article III may exist solely by virtue 
of ‘statutes creating legal rights, the invasion of which 
creates standing . . . .’” Warth, 422 U.S. at 500 (citing 
Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973) 
and Sierra Club v. Morton, 405 U.S. at 732). Quoting 
this passage from  Warth with approval, and stating that 
nothing in the opinion contradicts it, the Court in Lujan v. 
Defenders of Wildlife, 504 U.S. 555,578 (1992), explained:

Both o f the cases used by Linda R.S. as an 
illustration of that principle involved Congress’ 
elevating to the status of legally cognizable 
injuries concrete, de facto injuries that were 
previously inadequate in law (namely, injury to 
an individual’s personal interest in living in a 
racially integrated community, see Trafficante 
v. Metropolitan Life Ins. Co., 409 U.S. 205,208- 
212 34 L. Ed. 2d 415, 93 S. Ct. 364 (1972), and 
injury to a company’s interest in marketing its 
product free from competition, see Hardin v. 
Kentucky Utilities Co., 390 U.S. 1 (1968)).[9] As 
we said in Sierra Club, “ [Statutory] broadening

9. In Hardin, the Court held that when a statute “reflect[s] 
a legislative purpose to protect a competitive interest,” the 
competitor has standing to require compliance with the statute. 
390 U.S. at 6.



11

[of] categories of injury that may be alleged in 
support of standing is a different matter from 
abandoning the requirem ent that the party 
seeking review must himself have suffered an 
injury.” 405 U.S. at 738.

Id. at 578. As a necessary fifth vote for this section of the 
Lujan opinion, Justice Kennedy, joined by Justice Souter 
in a separate concurrence, stated that the Court “must be 
sensitive to the articulation of new rights o f action that do
not have clear analogs in our common-law tradition___ In
my view, Congress has the power to define new injuries 
and articulate chains of causation that will give rise to 
a case or controversy where none existed before . . . ” 
Id. at 580. The Court reaffirmed that Congress has the 
power to define new injuries for purposes of standing in 
Massachusetts v. EPA, 549 U.S. 497,516 (2007), discussed 
more fully below.

Beyond the case examples cited in Lujan, the Court has 
affirmed statutory broadening of legally cognizable injury 
in other cases. In Public Citizen v. Department of Justice, 
491 U.S. 440 (1989), two public interest organizations 
brought an action against the Department o f Justice. 
The organizations sought to make the Am erican Bar 
Association’s Standing Committee on Federal Judiciary, 
from which the Department regularly sought advice on 
federal judicial nominations, subject to the requirements 
of the Federal A dvisory Committee A ct (“ FACA” ), 5 
U.S.C. App. § 1 et seq. Id. at 433. The Court found that the 
refusal to permit scrutiny of the Committee’s activities “to 
the extent FACA allows constitutes a sufficiently distinct 
injury to provide standing to sue.” Id. at 449 (emphasis 
added). The Court relied explicitly on five cases decided



12

on the merits under the Freedom  of Information Act 
(“ FOI A” ),10 emphasizing that it has “never suggested that 
those requesting information under [FOIAJ need shoiv 
more than that they sought and were denied specific 
agency records.” Id. (emphasis added).

FEC v. Akins, 524 U.S. 11 (1998), involved a claim by a 
group of voters seeking to challenge the Federal Election 
Commission’s (“ F E C ” ) determination that a particular 
entity was not a “political committee” as defined by the 
Federal Election Campaign A ct o f 1971 (“ FE C A ” ), 2 
U.S.C. § 431(4). A s a result o f the F E C ’s decision, the 
target group was not required to disclose its membership, 
contributions or expenditures, which the FE C A  would 
have otherwise required. Id. at 13. This Court held that 
the group of voters had standing to challenge the F E C ’s 
determination in court and found injury in fact based on 
the voters’ inability to obtain information that would be 
required to be publicly disclosed pursuant to the FECA. 
Id. at 21. The Court cited in support of this holding both 
Public Citizen, discussed above, and Havens Realty, 
discussed below. Id.

Finally, in Massachusetts v. EPA, 549 U.S. 497 
(2007), private environmental organizations joined by 
intervenor states and local governments sought review 
o f  an EPA decision refusing to grant their petition to 
begin rulemaking regarding the emission of greenhouse 
gases. Citing Justice Kennedy’s concurrence in Lujan,

10. Dep’t of Justice v. Reporters Comm, for Freedom of the 
Press, 489 U.S. 749 (1989); Dep’t of Justice v. Julian, 486 U.S. 1 
(1988); United States v. Weber Aircraft Corp., 465 U.S. 792 (1984); 
FBI v. Abramson, 456 U.S. 615 (1982); Dep’t of Air Force v. Rose, 
425 U.S. 352 (1976).



13

id. at 516, and emphasizing the special status of states 
in the A rticle III standing analysis, the Court found 
that the plaintiffs were litigants to whom Congress had 
“accorded a procedural right to protect [their] concrete 
interest —  here the right to challenge agency action 
unlawfully withheld.” Id. at 517 (internal citations and 
quotation marks omitted). The Court also found concrete 
injury in the allegations of harm to states resulting from 
greenhouse gases. Id. at 521-23.

Thus, the congressional creation o f legal rights 
identifying injuries not previously recognized carries 
great weight in any judicial determination whether a 
plaintiff has alleged a cognizable injury for purposes of 
Article III standing.11

III. Havens Embraces Congressionaily Defined Injuries 
in Support of Tester Standing And Does Not 
Require the Plaintiff to Allege an Injury Different 
From or in Addition to that Defined by Congress

The Havens decision can be fairly read to embrace 
two congressionaily defined injuries. Either or both of 
these injuries exemplify the principle o f congressional 
identification of injuy for purposes of standing and the 
recognition of intangible harm as cognizable under Article 
III. Contrary to what Petitioners seem to suggest,12 
Havens did not require the tester plaintiffs to articulate 
some injury different from or in addition to the injuries 
defined by Congress.

11. As addressed below in Section IV.B, the Court has 
imposed outer limits on the types of injuries that it will recognize 
for purposes of Article III standing. This case does not approach 
those limits.

12. Petitioners’ Brief at 15, 30.



14

Havens presented the question whether testers have 
standing to sue under Section 804(d) o f the Fair Housing 
Act, 455 U.S. at 373, which provides that it is unlawful:

[t]o represent to any person because of race, 
color, religion, sex, or national origin 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). The case involved two testers, one white 
and one black. 455 U.S. at 368. The Complaint alleged 
that on four separate occasions the black tester had been 
told (untruthfully) by the defendant that apartments were 
not available, while the white tester was told (truthfully) 
that apartments were available. Id. at 374 (citing App. 16, 
para. 13). The Court relied directly on the congressionally 
defined injuries in analyzing the standing o f the two 
testers.

T h is co n g re s s io n a l in ten tion  can n ot be 
overlooked in determ ining whether testers 
have standing to sue. As we have previously 
recognized, “ [the] actual or threatened injury 
required by A rticle III may exist solely by 
virtue o f ‘statutes creating legal rights, the
invasion of which creates standing___ ” ’Warth
v. Seldin, supra at 500, quoting Linda R.S. v. 
Richard D., 410 U.S. 614,617, n.3 (1973). Accord, 
Sierra Club v. Morton, 405 U.S, 727,732 (1972); 
Trafficante v. Metropolitan Life Ins. Co., 409 
U.S. 205,212 (1972) (W H ITE , J. concurring).

Id. at 373. The Court held that the black tester who 
received false information had standing under Article III



15

and the white tester who received accurate information 
did not. Id. at 374-75.

One rationale o f  in ju ry  in Havens rests on the 
Court’s recognition that “ Congress has thus conferred 
on all ‘persons’ a legal right to truthful information about 
available housing.” Id. at 373 (stated differently -  receiving 
truthful information about the availability o f housing is 
recognized by Congress as a thing of value, the denial 
o f which creates injury).13 Another rationale o f injury 
present in the opinion and in the express language of 
Section 804(d) of the Fair Housing Act is the right not to 
be given false information about the availability of housing 
because of race, national origin or other protected status. 
See id. This can fairly be described as a right to equal 
treatment on the basis o f race or other status protected 
by the statute. Either or both of these rationales support 
Respondent’s position in this case.14 Regardless of which

13. It is important to emphasize the difference between 
cognizable injury sufficient to satisfy the “ injury-in-fact” element 
of Article III standing and the elements of a cause of action. The 
injury that flows from the right to truthful information about the 
availability of housing — by itself — would not give a person a 
cause of action under Section 804(d). The person would also have 
to show that she was given false information because of her race. 
Thus, if two testers, one white and one black, were both given the 
same false information about the availability of housing without 
regard to race — both would suffer an injury, but neither would 
have a cause of action under Fair Housing Act.

14. In addition to tester standing, Havens also recognized 
the concept of “neighborhood” standing, where a black or white 
resident might show that the racial steering practices of the 
defendants deprived her of the benefits of living in an integrated 
community, which is a cognizable injury for purposes of Article III



16

is invoked, the Court did not require the testers to allege 
any injury different from or in addition to those recognized 
by Congress. See id. at 374. Specifically, the tester was 
not required to allege emotional distress or humiliation 
upon learning that she had been given false information. 
Havens imposes no such requirement. See id.

A. I n ju r y  B a s e d  on the D e n ia l  o f  the  
Congressionally Created Right to Truthful 
Information About the Availability of Housing

The Havens C ourt found that in Section 804(d) 
C on gress  had con ferred  a broad  right to tru th fu l 
information regarding the availability o f housing. Id. 
at 373. It reached this conclusion based on the fact that 
in Section 804(a) o f the Act, prohibiting discriminatory 
refusals to sell or rent, Congress had required that there 
be a “bona fide offer” to rent or purchase. Id. at 374. In 
contrast, in Section 804(d) Congress “ had plainly omitted 
any such requirement insofar as it banned discriminatory
representations___ ” to “any person.” Id. The conferral of
the Section 804(d) rights to “any person” made clear that 
Congress intended to include people who were not bona 
fide purchasers or renters, such as testers, in the coverage 
of the Section. As such, it appears that Congress sought 
to allow the use of testers in order to provide effective 
challenges to one of the key devices by which housing 
discrimination was accomplished —  the provision o f false

standing. 455 U.S. at 375-78. This injury is based on the fact that 
in the Fair Housing Act Congress identified a valuable interest 
in integrated neighborhoods, see R obert G. Schwemm, Housing 
D iscrimination: Law and L itigation § 2.3 (2010), the denial of 
which will establish injury in fact. 455 U.S. at 375-78; see also 
Gladstone, Realtors v. City of Bellwood, 441 U.S. 91 (1979).



17

information. Id. at 374 n. 14. Thus, by virtue of Congress’s 
recognition that the provision of such false information 
constitutes direct, cognizable harm, the individuals who 
were lied to were afforded the right to enforce the Act and 
aid in ending discrimination, regardless of whether they 
actually sought housing.

The Court held that injury in the form of the receipt of 
false information about the availability of housing— which 
Congress had recognized as a harm —  was sufficient 
injury for purposes of Article III standing. Id. at 373-74; 
see also FEC v. Akins, 534 U.S. at 21 (citing Havens for 
the proposition that “deprivation of information about 
housing availability constitutes ‘specific injury’ permitting 
standing” ). The Court did not require a further showing 
as to how the false information harmed the tester.

B. I n ju r y  B a se d  on the D e n ia l  o f  the  
Congressionally Created Right to Equal 
Treatment on the Basis of Race Regarding 
Information About the Availability of Housing

There is a second independent rationale supporting 
the finding of injury to the tester in Havens. It is the 
denial o f equal treatment on the basis o f race —  an injury 
that also presents itself on the face o f the statute. Section 
804(d), which, in its terms, establishes an enforceable 
right to truthful information concerning the availability 
of housing, is such an enactment. The black tester who 
was lied to about the availability o f apartments was lied 
to “ because o f” her race. This injury is as real as that 
experienced by a tester who presents himself at a lunch 
counter and is told he cannot be served because of his race. 
He will not be required to prove that he truly wanted a



18

sandwich in order to show injury for purposes of Article 
III standing.

The Havens opinion states that the fact that the tester 
may have approached the real estate agent expecting to be 
given false information without an intention of purchasing 
or renting “does not negate the simple fact of injury within 
the meaning o f § 804(d).” Id. at 374. The opinion then cites 
cases involving testers from the mid-20th Century civil 
rights sit-ins, specifically, Pierson v. Ray, 386 U.S. 547, 
558 (1967), and Evers v. Dwyer, 358 U.S. 202, 204 (1958) 
(per curiam). Id. While Pierson involved an illegal arrest 
following a sit-in at a bus terminal in Jackson, Mississippi, 
and is therefore distinguishable, Evers involved a black 
person who attempted to ride at the front of a bus, but 
who was told “ to go to the back of the bus, get off, or be 
arrested,” whereupon he left the bus. 358 U.S. at 204. 
The Court stated that the bus rider was not “bound to 
continue to ride . . .  at the risk of arrest” if  he refused to 
sit in the back, in order to show an “actual controversy.” 
Id. The Court further held that the fact that the bus rider 
“ may have boarded this particular bus for the purpose of 
instituting this litigation is not significant.” Id. The Court 
has ruled that the denial of equal treatment on the basis of 
race constitutes a cognizable injury regardless of whether 
the plaintiff can show that he ultim ately would have 
received the benefit absent the discriminatory treatment. 
See Ne. Fla. Chapter o f the Associated Gen. Contractors 
of Am. v. City o f Jacksonville, 508 U.S. 656, 666 (1993).

In en actin g  the F a ir  H ousing A ct, the record  
before Congress showed that the use of discriminatory 
misrepresentations about the availability of housing were 
a particularly widespread and effective device used to 
maintain segregation. It had the effect of not only denying 
particu lar individuals housing, it also had a broader



19

deterrent effect on blacks in the housing market. The 
Court noted in footnote 14 of the Havens decision that 
Congress was aware that “ [vjarious witnesses testifying 
before C ongress recounted incidents in which black 
persons who sought housing were falsely informed that 
housing was not available.” 455 U.S. at 374 n.14. Robert 
Weaver, Secretary of the U.S. Department o f Housing 
and Urban Development, testified before Congress that 
there was a great problem with people being lied to about 
the availability o f housing and that this had the effect of 
deterring black people from continuing to seek housing 
outside of “ghetto” areas. “You know, after a man hits his 
head up against a brick wall time and time again, he then 
even doubts when he sees a little opening in that wall lest 
it be a snare and a delusion.”15

Thus, Congress identified differential treatment on 
the basis o f protected status as a concrete injury and 
sought to eliminate that treatment through the Fair 
Housing Act. Consistent with that approach, the Court 
did not require the black tester in Havens to allege 
an injury different from or in addition to the unequal 
treatment itself to establish injury under Article III. 
While she likely experienced humiliation, embarrassment 
and distress, or racial insult and stigma as Petitioners 
describe it,16 the Havens opinion on tester standing makes 
no reference to such injury or to any allegation thereof. 
The Court, however, certainly has recognized this injury 
exists. Heckler v. Mathews, 465 U.S. 728, 739-740 (1984) 
(explaining that discrimination itself can create serious

15. Hearings on S. 1358, S. 2111+ and S. 2280 Before the 
Subcomm. on Housing and Urban Affairs of the Senate Comm, on 
Banking and Currency, 90th Cong., 1st Sess., 43 (1967) (statement 
of Robert Weaver, Sec. of U.S. Dep’t of Housing and Urban Dev.).

16. Petitioners’ Brief at 15.



20

noneconomic injuries and citing Havens). But the courts 
have not required such an additional showing for purposes 
o f standing. See City of Chicago v. Matchmaker Real 
Estate Sales Ctr., Inc., 982 F.2d 1086,1095 (7th Cir. 1992) 
(housing testers were treated in a “racially discriminatory 
fashion, even though they sustained no harm beyond 
the discrimination itself” ) (quoting Vill. o f Bellwood v. 
Dwivedi, 895 F.2d 1521,1526 (7th Cir. 1990)).

IV. The Congressional Decision to Allow Parties to the 
Conflicted Transactions to Enforce the Statutory 
Prohibition on Harmful Practices in the Market 
Does Not Offend Article III

A. Once Threshold Injury is Established, It Does 
Not Offend Article III That Congress Has 
Structured an Enforcement Scheme That 
Allows Involved Parties to Sue, But Because 
of Difficulties of Proof Relieves Them of 
Making an Additional, More Specific Showing 
of Financial Harm

Prompted by evidence that widespread discriminatory 
misrepresentations regarding the availability of housing 
w ere causing discrim ination and segregation  in the 
housing market, Congress adopted Section 804(d) o f the 
Fair Housing Act. In doing so, it recognized a class of 
persons who actually received false information about 
housing, including testers, who could sue to enforce the 
Act. Similarly, in enacting the Real Estate Settlement 
Procedures Act (“ RESPA” ), 12 U.S.C. § 2601, et seq., 
Congress had before it evidence that widespread kickback 
schemes in the sale of residential real estate settlement 
services were adversely affecting the price and quality of



21

services.17 The record also showed that it was difficult to 
get accurate information about these practices and that 
they were hard to deter or police.18 This, too, is similar 
to the problem  o f discrim inatory m isrepresentations 
about housing availability -  without testers it was hard 
to identify or police. With RESPA’s statutory goal of 
eliminating kickbacks and referral fees,19 in Section 8(d) 
(2) Congress established a right for persons who actually 
purchased settlement services involving kickbacks to be 
the recipients of a statutory civil penalty. Congress did 
not require proof of actual economic harm,20 as unwinding 
the effect of kickbacks on the market and amount of an 
overcharge would be a difficult i f  not insurmountable

17. Real Estate Settlem ent Costs, FHA Mortgage 
Foreclosures, Housing Abandonment, and Site Selection Policies: 
Hearings Before the Subcomm. on Housing of the H. Comm, on 
Banking and Currency, 92d Cong., 1-3,332,339 (Feb. 22-24,1972); 
Mortgage Settlement Costs: Hearings Before the Subcomm. on 
Housing and Urban Affairs of the S. Comm, on Banking, Housing 
and Urban Affairs, 92d Cong., 73-74 (Mar.1-3,1972).

18. See P eat, Marwick, M itchell & Co., R esearch on 
Real E state Settlement Practices and Costs: Baseline Study 
of T itle I nsurance I ndustry (Feb. 1980) (Congressionally- 
authorized study describing the difficulty of proving the cost 
impact of kickbacks).

19. “ It is the purpose of this chapter to effect certain changes 
in the settlement process for residential real estate that will result 
. . .  (2) in the elimination of kickbacks or referral fees that tend to 
increase unnecessarily the costs of certain settlement services.” 
12 U.S.C. § 2601(b).

20. See Alston v. Countrywide Fin. Corp., 585 F.3d 753, 
759-62 (3d Cir. 2009).



22

hurdle, effectively defeating Congress’s goal of penalizing 
and deterring wrongdoers through strong enforcement.21

The injury here —  a conflict of interest in the sale 
o f loan settlement services in the form of a kickback22 
—  identified by Congress based on findings that these 
kickbacks “prejudice the kind of disinterested advice . . 
. the consumer deserves,”23 are likely to result in “poor 
service or ... faulty title examinations,”24 and “ tend to 
increase the costs of settlement services without providing 
any benefits to the home buyer,”25 is sufficiently concrete 
to establish a controversy for judicial resolution. Courts 
historically have adjudicated this type of injury,26 and it 
should be approved here. To hold otherwise would invite 
a radical change in the relationship between the Courts 
and Congress and threaten many statutes adopted for 
the protection of common citizens involved in everyday 
transactions in contexts rife with hidden manipulations,

21. See supra, note 17 and 12 U.S.C. § 2607(d) establishing 
penalties for violations.

22. See Respondent’s Brief at 19.

23. Real Estate Settlement Procedures Act— Controlled 
Business: Hearings Before the Subcomm. on Housing and 
Community Development of the H. Comm, on Banking, Finance 
and Urban Affairs, Ser. No. 97-24,159 (Sept. 15-16,1981) (“1981 
House Hearings”).

24. U.S. Dep’t of Justice, A ntitrust Division, Report on The 
Pricing and Marketing of Insurance (1977) reprinted in part in 
1981 House Hearings 221-83, 273.

25. S. Rep. No. 93-866, at 6 (1974); see also 12 U.S.C. § 2601(b).

26. See Respondent’s Brief at 19-25, for a discussion of the 
historical recognition of injury in conflicted transactions.



23

risks and harm .27 W here Congress has, on the basis 
o f a substantial record, identified this harm, adopted 
prophylactic m easures, and em powered actual home 
buyers with conflicted transactions to seek a legal remedy, 
affirming standing to pursue a claim in no way offends 
Article III.

Further, A rticle III does not mandate that after 
the identification of a threshold injury, the enforcement 
scheme adopted by Congress must nonetheless require 
proof of a precise fit between the plaintiff and other harms 
about which Congress expressed concern in enacting the 
statute. The Court has approved enforcement schemes 
utilizing individuals who were parties to transactions 
involving practices targeted  by C ongress, but who, 
because of difficulties of proof, are not required to make a 
showing of actual financial harm. In Mourning v. Family 
Publications Service, Inc., 411 U.S. 356 (1973), Family 
Publications Service (FPS) objected to the application of 
the “ Four Installment Rule” under the Truth in Lending 
Act, 15 U.S.C. § 1604, et seq. (2011). The Rule required 
certain disclosures to the consumer whenever there 
was a finance charge or where there was an agreement 
that the amount owed could be paid in more than four 
installments. 411 U.S. at 358, 362. The district court 
found that FPS violated the Rule because it had extended 
credit under an agreement that was payable in more than 
four installments, but had failed to make the disclosures 
required under the Act. Id. at 362. FPS challenged the 
Rule, essentially objecting to being subjected to the 
disclosure requirements and the statutory penalty for 
failure to comply with them, when it contended that —

27. Id. at n.10.



24

despite more than four installments in its agreement with 
the plaintiff —  there was not in fact a finance charge. Id. 
at 362. Congress found that distinguishing transactions 
with and without finance charges was difficult as these 
charges were often hidden by various means. Id. at 365-66.

The Court upheld the Rule stating:

A  s im ila r  ru le  app lies w hen a rem ed ia l 
provision requires some individuals to submit 
to regulation who do not participate in the 
conduct the legislation was intended to deter or 
control. In Village of Euclid v. Ambler Realty 
Co., 272 U.S. 365,388-389 (1926), the Court held 
that, in defining a class subject to regulations,
“ the inclusion of a reasonable margin to insure 
effective enforcement, will not put upon a law 
otherwise valid, the stamp of invalidity.” See 
also North American Co., v. SEC, 327 U.S. 686 
(1946). Nothing less will meet the demands of 
our complex economic system. W here, as here, 
the transactions or conduct which Congress 
seeks to adm in ister occu r in m yriad and 
changing forms, a requirement that a line be 
drawn which insures that not one blameless 
individual will be subject to the provisions of 
an act would unreasonably encumber effective 
administration and permit many clear violators 
to escape regulation entirely. That this rationale 
applies to administrative agencies as well as to 
legislatures is implicit in both Gemsco [Inc. v. 
Walling, 324 U.S. 244 (1945)] and American 
Trucking Assns. [v. United States, 344 U.S.



25

298 (1953)]. In neither case was every individual 
engaged in the regulated activity responsible 
for the specific consequences the agency sought 
to eliminate.

Id. at 374. In Friends of the Earth, the Court quoted 
approvingly Justice Frankfurter’s opinion in Tigner v. 
Texas, 310 U.S. 141,148 (1940), acknowledging Congress’s 
core legislative function in the selection o f  rem edial 
schemes.:

How to effectuate policy —  the adaptation of 
means to legitimately sought ends —  is one of 
the most intractable o f legislative problems. 
Whether proscribed conduct is to be deterred by 
qui tam action or triple damages or injunction, 
or by criminal prosecution, or merely by defense 
to actions in contract, or by some, or all, of these 
remedies in combination, is a matter within the 
legislature’s range of choice.

528 U.S. at 186-87. Requiring under Article III that 
Ms. Edwards and every other plaintiff prove an actual 
overcharge in addition to injury to the right to be free 
from  conflicted settlement transactions, as Petitioners 
seek, would disrupt the statutory enforcement scheme, 
while serving no legitimate interest under Article III.



26

B. This Case is Far from the Outer Limits of 
Judicially Cognizable Injuries as Plaintiff 
Alleges that She Was a Party to a Transaction 
Involving a Kickback Prohibited by Congress 
and She Wishes to Sue about that Transaction

The outer limits o f cognizable injuries defined by 
Congress for purposes of Article III have been clearly 
articulated by the Court. In Lujan the Court held that 
Article III standing does not extend to the elevation of 
injuries and enforceable rights for undifferentiated public 
interests, generalized grievances about the operation of 
government, or the promotion of every citizen’s right to 
the proper application o f the laws. Lujan, 504 U.S. at 
573-74, 575-77. Further, the opinion in Lujan recognizes 
that suits involving the government, as distinguished 
from disputes between private parties, such as this, raise 
more troubling considerations for purposes of Article III 
standing, implicating core separation of powers concerns. 
Id. at 576-77. The Court is explicit that Lujan’s holding 
focuses on these public rights issues, stating in the 
penultimate paragraph, “ [I]t is clear that in suits against 
the Government, at least, the concrete injury requirement 
must remain.” Id. at 578 (emphasis added).

Federal courts, including this Court, have long 
acknowledged the significant differences for purposes of 
standing between suits against the government and suits 
involving “private actors suing other private actors, [which 
is] traditional grist for the judicial mill.” Spann v. Colonial 
Vill, Inc., 899 F.2d 24, 30 (D.C. Cir. 1990) (Ginsburg, J.). 
The U.S. Court of Appeals for the District o f Columbia 
Circuit explained:



27

The ideological or undifferentiated injury cases, 
unlike this case, characteristically are suits 
against the government to compel the state to 
take, or desist from taking, certain action. Such 
cases implicate most acutely the separation of 
powers, which the Supreme Court instructs, 
is the “single basic idea” on which the Article 
III standing requirement is built. See Allen 
v. Wright, [468 U.S. 737, 752 (1984)]; Valley 
Forge Christian College [v. Arris. United for the 
Separation o f Church and State, 454 U.S. 464,
472 (1982)]. The standing barrier, as it operates 
in undifferentiated injury cases, prevents the 
courts from interfering in questions that “our 
system of government leaves. . .  to the political 
processes.” [Schlesinger v.] Reservists to Stop 
the War, [418 U.S. 208,227 (1974)].

Id. This case simply does not raise the types of separation of 
powers concerns present in suits against the government. 
It involves a home buyer who actually paid a charge for a 
settlement service in a transaction that allegedly involved 
a kickback prohibited by Congress.28 As a suit between 
private parties —  the parties to the alleged kickback and 
the home buyer who paid for the service —  it is “ traditional 
grist for the judicial mill ” Id.

28. See 12 U.S.C § 2607(d)(2).



28

CONCLUSION

Amici urge the Court to affirm the judgment below. 

Respectfully submitted,

Stephen M. Dane 
Relman, Dane 

& C olfax P LL C  
1225 19th Street, NW  
Suite 600
Washington, DC 20036

John Payton 
Debo P. A degbile 
E lise C. Boddie 
Ryan D owner 
NAACP L egal Defense & 

E ducational F und, Inc. 
99 Hudson Street 
16th Floor 
New York, N Y 10013

Leslie P roll 
NAACP L egal D efense & 

E ducational F und, Inc. 
1444 I Street, N W  
10th Floor
Washington, DC 20005 
(202) 682-1300

Janell M. Byrd 
Counsel of Record 

Z achary Best 
M ehri & Skalet, PLLC 
1250 Connecticut Ave., NW  
Suite 300
Washington, DC 20036 
(202) 822-5100 
jbyrd@findjustice.com

Jon M. Greenbaum 
Joseph D. R ich 
John K. D iPaolo 
Lawyers’ Committee for 

C ivil R ights Under Law 
1401 New York Ave., NW  
Suite 400
Washington, DC 20005

M egan K. W hyte 
Washington Lawyers’ 

Committee for Civil 
R ights and Urban A ffairs 

11 Dupont Circle, NW  
Suite 400
Washington, DC 20036 
(202) 319-1000

mailto:jbyrd@findjustice.com


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