Trafficante v. Metropolitan Life Insurance Company Brief of Respondent on the Merits

    In the Supreme Court o f the 

United States
O ctober T er m , 1972

No. 71-708

P au l  J. T raffican te , D orothy  M. Carr, 
C o m m ittee  of P arkm erced  R esidents C om m itted  

to Ope n  O ccu pan cy , an u n in corp ora ted  a s s o c ia t io n ;
T h e  R everend  A r t h u r  H . N ew berg , J am es E mbree ;

At.be r t  J am es H e ic k , and  J aqu elin e  T c h a k a lia n ,

Petitioners,
vs.

M etropolitan  L ife  I nsurance  C o m pan y , 
a New York Corporation, and P arkm erced  

Corporation , a California Corporation,
Respondents.

Brief of Respondent Parkmerced Corporation 
on the Merits

R obert M. S h e a ,
K ate C. F reeland ,
D in k e l spie l , S teefel , L evitt , 

W eiss & D onovan 
235 Montgomery Street, Suite 1910 
San Francisco, California 94104 
Telephone: (415) 391-3900

Attorneys for Respondent 
Parkmerced Corporation

S O R G  P R IN T IN G  C O M P A N Y  O F  C A L IF O R N IA , 3 4 5  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 I O S



Opinions Below .................................................................  2

Jurisdiction ............... .......................................................  2

Statutes Involved  ........... ................................................  3

Questions Presented ..................................................... — 3

Statement of the Case........................... ........ -................. 3

1. Petitioners Do Not Represent Excluded Persons 4

2. The Complaints Are Based Upon Specific Alle­
gations Of Discrimination Against Third Par­

TABLE OF CONTENTS
Page

ties Unconnected With The Action .............. ~ 4

3. The Pendency Of A Companion Case.............. — 5

4. Parkmerced Corporation Had No Connection 
With Metropolitan’s Operation Of Parkmerced 
During The Complaint Period And Has As­
sumed Full Control Of The Complex..................  6

Summary of Argument....................................................  8

I. Petitioners Lack Standing Under Title VIII .... 8

II. Petitioners Lack Standing Under 42 U.S.C.
§ 1982 .......................................................................  11

III. As An Alternative Ground Of Decision, The 
Action Should Be Dismissed Against Park­
merced Corporation Because It Did Not Parti­
cipate In Any Of The Wrongs Complained Of .. 12

Argument ............................................................................. 13

I. Tenants In A Privately Owned Apartment 
Complex Do Not Have Standing To Maintain
An Action Challenging Alleged Discriminatory 
Housing Practices Directed Against Others .... 13



11 T able of Contents

A. Title VIII Creates Specifically Defined 
Rights Of Action In Persons Discrimi­
nated Against, But Not The General Right
To Maintain Suit Claimed By Petitioners.. 15
1. The Language Of Title VIII ..............  15
2. Legislative History Of Title VIII Does

Not Support Petitioners’ Standing To 
Sue ................... ........... ..................... .......  18

B. The Suggestion Of The Assistant Regional
Administrator Of HUD That Petitioners 
Have Standing Under Title VIII Is Not 
Entitled To Weight ................ ........ ............ 21

C. Denial Of Standing To Petitioners Herein 
Will Not Impair The Effective Realization
Of Rights Secured By Title V I I I ..............  23
1. Title VIII Provides Material Incen­

tives To Suit, And Persons Claiming 
They Were Discriminated Against 
Have In Pact Brought Su it---------------  23

2. The Role Of Private Citizens To Pro­
ceed As “ Private Attorneys General”
Will Not Be Affected .................     24

3. Denial Of Standing To These Petition­
ers Will Not Frustrate Or Impair 
Attacks Upon “ Patterns Or Practices”
Of Discrimination .................................  25

D. The Legal Authorities Cited By Petition­
ers Do Not Support Their Standing To 
Maintain A  Private Suit Under Title VIII 
To Litigate The Rights Of Absent Third 
Parties ..........................................................  26
1. Cases Involving A Citizen’s Challenge 

To Governmental Agency Action ____ 27

Page



T able of Contents

Pages

2. Cases In Which The Plaintiffs Have 
Suffered Direct Personal Injury Cog­
nizable Under The Relevant Statute .... 30

3. Cases In Which Plaintiffs Are Per­
mitted To Assert The Rights Of Absent 
Third Parties Who Are Otherwise 
Denied A Forum ............ ......................  32

4. Cases Arising In The Areas Of Public
Accommodations And Labor Relations 
Under Statutory Schemes Unlike Title 
VIII ................ !...................................... . 34

II. Standing To Maintain Suit Under 42 U.S.C.
§ 1982 Is Limited To Those Directly Injured By 
The Claimed Violation ....................................... 36

III. Dismissal Of The Complaints Against Park- 
merced Corporation Should Be Affirmed On 
The Additional Ground That Parkmerced 
Corporation Did Not Participate In The 
Alleged Violations And Cannot Be Compelled 
To Litigate, Or Be Held Liable For, Alleged 
Misconduct Of Metropolitan ............................  38
A. Parkmerced Corporation Was Unconnected

With Metropolitan’s Conduct, And Has 
Assumed Full Operational Control Inde­
pendent Of Metropolitan .......................... 39

B. Title VIII and 42 U.S.C. § 1982 Should Not
Be Applied To Burden Purchasers Uncon­
nected With The Alleged Discriminatory 
Conduct ...........................     40

Conclusion 45



APPENDICES
Appendix A—Opinion Of The Federal District 

Court For The Northern District 
Of California, Dated February 10,
1971, Dismissing The Complaints In 
Trafficante, et al. v. Metropolitan Life 
Ins. Co., et al. (N.D. Cal. No. C-70- 
1754) ........... ..... ......... ...... ........... .......App. 1

Appendix B—Decision Of The Court Of Appeals 
For The Ninth Circuit, Filed Septem­
ber 13, 1971, Denying Rehearing In 
Trafficante, et al. v. Metropolitan Life 
Ins. Co., et al. (9th Cir. No. 71-1325) -App. 4

Appendix C—Relevant Statutes
C-l. Fair Housing Act of 1968, 42

U.S.C. §§ 3601-3619 ..................App. 5
C-2. Civil Rights Act of 1866, 42

U.S.C. §1982 ..............................App. 23

Appendix D—Complaint For Violation Of Fair 
Housing Laws, Burbridge, et al. v. 
Parkmerced Corp., et al. (N.D. Cal.
No. C-71-378 [AJZ] .............. .............App. 24



TABLE OF AUTHORITIES

Cases Pages
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).......31, 35
Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968)........... 30
Arnold Tours, Inc. v. Camp, 400 U.S. 45 (1970) ........... 28
Association of Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 150 (1970) ................ 14, 27, 28, 29

Bailey v. Patterson, 369 U.S. 31 (1962) ........................21, 34
Baker v. Carr, 369 U.S. 186 (1962) ..............................  14
Barlow v. Collins, 397 U.S. 159 (1970) ........................27, 29
Barrows v. Jackson, 346 U.S. 249 (1953) ............ ..31, 32, 33
Bowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir.

1969) ..........    25
Brown v. Board of Education, 347 U.S. 483 (1954) ..... 27
Browns v. Mitchell, 409 F.2d 593 (10th. Cir. 1969) ....... 30
Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961) ................................................................. 30

Carr v. Conoco Plastics, Inc., 432 F.2d 57 (5th Cir.)
cert, den., 400 U.S. 951 (1970) ...................................  35

Carter v. Greene County, 396 U.S. 320 (1970) ............  27
Connecticut Action Now, Inc. v. Roberts Plating, Co.,

Inc., 457 F.2d 81 (1972) ................................................  29

Eisenstadt v. Baird, ....... U.S.......... , 92 S.Ct. 1029
(1972) ................. ........................................ 11, 23, 32, 33, 34

Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 
1093 (D.C. Cir. 1970) .................................................. 27

Flast v. Cohen, 392 U.S. 83 (1968)................................. 13, 27

Griswold v. Connecticut, 381 U.S. 479 (1965) ..............  33

Harris v. Jones, 296 F. Supp. 1082 (D. Mass. 1969) .... 37
Hobson v. Hansen, 320 F. Supp. 409, 720 (D.D.C. 1970) 27
Hutchings v. United States Industries, Inc., 428 F.2d 

303 (5th Cir. 1970) ..................................................  25



VI T able of A uthorities

Pages
Investment Company Institute v. Camp, 401 U.S. 617 

(1971) ...........................................................................  28

Jenkins v. United Gras Corp., 400 F.2d 28 (5th Cir.
1968) .............................................................................  25

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543
(1964) ............................................................................36,43

Jones v. Mayer Co., 392 U.S. 409 (1968) ................. . 37

Kennedy Park Homes Association, Inc. v. City of 
Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert, den.,
401 U.S. 1010 (1971) ..................................................  27

Lee v. Macon County Board of Education, 267 F.Supp.
458 (M.D. Ala.), aff’d. per curiam, 389 U.S. 215
(1967) ...........................................................................  27

Lloyd Corp., Ltd. v. Tanner,.......U.S. ........  [40 U.S.
L.W. 4829] (June 22,1972) .........................................  30

Madlock v. Sardis Luggage Co., 302 F.Supp. 866 (N.D.
Miss. 1969) .....         25

Marable v. Alabama Mental Health Board, 297 F.
Supp. 291 (M.D. Ala. 1969) ....................................... 27

Marsh v. Alabama, 326 U.S. 501 (1946) .................. .....  30
Meyer v. Massachusetts Eye and Ear Infirmary, 330 

F. Supp. 1328 (D.Mass. 1971)...........................    34

N.L.R.B. v. Birdsall-Stockdale Motor Co., 208 F.2d
234 (10th Cir. 1953) ......................    43

N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398 (1960) 43
N.L.R.B. v. Tanner Motor Livery, Ltd., 349 F.2d 1

(9th Cir. 1965) ............        35
Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963)........... 35
New Negro Alliance v. Sanitary Grocery Co., 303 U.S.

552 (1938) ........... .................................'........................ 35

Offner v. Shell’s City, Inc., 376 F.2d 574 (5th Cir.
1967) ............................................................................. 31,35



T able of A uthorities v i i  

Pages
Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945) .... 42
Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971) ....... 35
Rogers v. Paul, 382 U.S. 198 (1965) .............................. 27

S.E.C. v. Barraco, 438 F.2d 97 (10th Cir. 1971)........... 42
Sanchez v. Standard Brands, Inc., 431 F.2d 445 (5th

Cir. 1970) ....................... .............................................. 25
Scenic Hudson Preservation Conf. v. F.P.C., 354 F.2d 

608 (2d Cir. 1965), cert, den., 384 U.S. 941 (1966) 27, 28, 29
Shannon v. HUD, 436 F.2d 809 (3rd Cir. 1970) ........... 27
Shelley v. Kraemer, 334 U.S. 1 (1947) .......................... 31
Sierra Club v. Morton, ....... U.S......... , 92 S.Ct. 1361

(1972) ................................................. . 10,14, 27, 28, 31, 32
Sisters of Providence of St. Mary of the Woods v. City

of Evanston, 335 F.Supp. 396 (N.D. 111. 1971)........... 27
Skidmore v. Swift, 323 U.S. 134 (1944).......................... 22
Solien v. Misc. Drivers & Helpers Union, Local No. 610,

440 F.2d 124 (8th Cir.), cert. den. 403 U.S. 905
(1971) ..............  29,30

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ....31, 37

Tileston v. Ullman, 318 U.S. 44 (1943) .......................... 33
Tolg v. Grimes, 335 F.2d 92 (5th Cir.), cert, den., 384

U.S. 988 (1966) ........................................................... 31, 35
Trafficante, et al. v. Metropolitan Life Insurance Co., 

et al., 332 F. Supp. 352 (N.D. Cal.), aff’d, 446 F.2d 
1158 (9th Cir. 1971) .................................................... 2,7

United Church of Christ v. F.C.C., 359 F.2d 994 (I).C.
Cir. 1966) ........     28

United Pharmacal Corp. v. U.S., 306 F.2d 515 (1st
Cir. 1962)........................ ..................................... ........42,43

United States v. Bob Lawrence Realty, Inc., 313 F.
Supp. 850 (N.D. Ga. 1970).......................................... 26

United States v. Johns-Manville Corp., 245 F. Supp. 74 
(E.D. Pa. 1965) ........................................................... 41, 42



vm T able of A uthorities

Pages
United States v. Mintzes, 304 F. Supp. 1305 (D. Md.

1969) .............................................................................  26
United States Pipe & Foundry Co. v. N.L.R.B., 398

F.2d 544 (5th Cir. 1968)...................... ........... ..... .......  43
United States v. West Peachtree Tenth Corp., 437

F.2d 221 (5th Cir. 1971)................................ ......... .... 16, 26
United Steel Workers of America v. Warrior & Gulf 

Navigation Co., 363 U.S. 574 (1960) ........- ........ .......  36

Valle v. Stengel, 176 F.2d 697 (3rd Cir. 1949)..............  31

Walker v. Pointer, 304 F.Supp. 56 (N.I). Tex. 1969) ....31, 37 
Wheeler v. Durham City Board of Education, 363 F.2d 

738 (4th Cir. 1966) ................................... ................... 27

Younger v. Harris, 401 U.S. 37 (1971) .............. ......... ..33, 34

C o n stitu tio n , S tatutes  and  R ules

U.S. Constitution, Art. I l l ...........................................8,13, 28
29 U.S.C. §§ 104,107,113,157 .........................................  35
42 U.S.C.:

§ 1982 ............................... 1, 3, 6,11,12, 36, 37, 39, 40,41, 43
§ 1983 .............................................................................  35
§ 2000a.........................................      21
§ 2000a(a) .........................        34
§ 2000(e) .......................................................................  36

3601 et seq. (Title VIII) .......1, 3, 4, 8-12,14-18, 20,
21,23-26,34-37,39, 41, 45

§ 3601 .....................................................................   15
§ 3602 ......................................................................... 9,15, 23
§ 3603 ............................................................................  9,15
§ 3604 ..................................... ..................... .....4, 9,15,17,19
§ 3605 ............................................................................. 9,15
§ 3606 .............................................................................  9,15



T able of A uthorities ix

§ 3610 ...............................................5, 9,14,15,16,18,19, 26
§ 3612 ...............................................5, 9,11,14,16,18, 20, 26
§ 3613 ................ ....................................... 9,16,18, 25, 26, 29

F.R.Civ.P.:
Rule 12 ................   38
Rule 23 .........   6
Rule 25 ..................................................................... 38, 44,45
Rule 65 ...........................................................................  42

Pages

L egislative H istory of T itle  VIII 
114 Cong. Rec. (1968):

293..................................   19
2273...............   20
2706.................................................................................  19
3247................................................................................. 19
4568................................................................................. 21
9603-04 ...............................    20

O th e r  A u thorities

Moore’s Federal Practice (2d ed. 1969) ........................ 45
Annotation, 97 A.L.R. 2d 490 .........................................  43
Complaint in Burbridge, et al. v. Parkmerced Corpora­

tion, et al. (N.D. Cal. No. C-71-378).................. 5,11, 24, 32



In the Supreme Court of the 
United States

O ctober T e rm , 1972

No. 71-708

P a u l  J. T raffican te , D orothy  M. Carr, 
Co m m ittee  of P arkm erced  R esidents C om m itted  

to Open  O ccu pan cy , an u n in corp ora ted  a ss o c ia t io n ;
T h e  R everend A r t h u r  H . N ew berg , J am es E m b r e e ;

At,b e r t  J am es H e ic k , and J aqu elin e  T c h a k a lia n ,
Petitioners,

vs.
M etropolitan  L ife  I nsurance  C o m pa n y , 

a New York Corporation, and P arkmerced  
C orporation , a California Corporation,

Respondents.

Brief of Respondent Parkmerced Corporation 
on the Merits

This case presents the question whether residents of an 
apartment complex who do not claim that they themselves 
have been discriminated against or deprived of housing 
have standing under the Civil Rights Acts1 to litigate the 
question whether their landlord wrongfully discriminated 
against third parties who are neither present nor repre­

1. Title V III of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601, 
et seq.) and 42 U.S.C. § 1982.



2
sented in the action. The Court of Appeals for the Ninth 
Circuit affirmed dismissal of the complaints herein on the 
ground that petitioners lacked standing to proceed because 
they did not allege acts of discrimination against them­
selves and we ask this Court to affirm.

In addition, Parkmereed Corporation purchased and 
assumed full control of the Parkmereed complex several 
months after the date of the complaint. Parkmereed Cor­
poration had no connection with the prior owner, respond­
ent Metropolitan Life Insurance Company. We contend 
that, if the plaintiffs are granted standing, the action none­
theless must be dismissed against Parkmereed Corporation 
because it did not participate in or contribute to any of the 
wrongs complained of in the complaint. This issue was not 
decided by either court below because these courts found 
petitioners lack standing.

OPINIONS BELOW
The opinion of the Federal District Court for the North­

ern District of California dismissing the complaints is 
reported at 322 F. Supp. 352 (N.D. Cal. 1971) and is set 
forth as Appendix A hereto. (App. 1-3) The opinion of the 
Court of Appeals for the Ninth Circuit affirming dismissal 
is reported at 446 F.2d 1158 (9th Cir. 1971), and is set forth 
as Appendix A to Petitioners’ Brief on the merits, filed 
herein on or about May 4, 1972.2 The Court of Appeals 
denied rehearing on September 13, 1971. (App. 4)

JURISDICTION
See Petitioners’ Brief, page 3.

2. Petitioners’ Brief is hereafter cited as “ Pet. Br., p ......” .



STATUTES INVOLVED
The statutes involved are Title VIII (Fair Housing) of 

the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.) 
and 42 U.S.C. § 1982, the full texts of which are set forth in 
App. 5-23.

3

QUESTIONS PRESENTED
I. Whether tenants in a privately owned and operated 

apartment complex have standing to maintain an action 
against their landlord under Title VIII of the Civil Rights 
Act of 1968 (42 U.S.C. §§ 3601, et seq.) or 42 U.S.C. § 1982 
upon allegations that the landlord engaged in discrimina­
tory housing practices against third parties who are neither 
joined nor represented in the action and will not be bound 
or affected thereby?

II. As an alternative ground of decision, whether an 
independent purchaser of an apartment complex which had 
no connection with alleged housing discriminations by the 
seller can be compelled to bear the risks and burdens of 
litigation of alleged discrimination by the seller, or be 
subjected to affirmative relief therefor, solely because the 
purchaser had notice that claims of such discrimination 
had been made prior to the sale ?

STATEMENT OF THE CASE
Since the questions before this Court are whether the 

petitioners (plaintiffs below) have alleged sufficient facts 
to show that they have standing to maintain this action, 
and if so, whether they have stated a cause of action against 
Parkmerced Corporation, the relevant facts are those in 
the pleadings. The briefs of other parties provide summaries 
of the complaints and prior proceedings below, which will 
not be restated here. However, we wish to call certain facts 
to the Court’s attention.



1. Petitioners Do Not Represent Exeladed Persons
Each of the individual petitioners herein (and each mem­

ber of the petitioner Committee) was at the time of these 
complaints a resident of Parkmerced. None of the com­
plaints purports to state a class or representative action 
on behalf of those allegedly excluded from Parkmerced by 
the discriminatory housing practices complained of.

2. The Complaints Are Based Upon Specific Allegations Of 
Discrimination Against Third Parties Unconnected With The 
Action

These proceedings were initiated by petitioners Traffi- 
cante and Carr by identical “Housing Discrimination Com­
plaints” filed May 14, 1970, with the United States Depart­
ment of Housing and Urban Development (“HUD” ). Each 
such administrative complaint recites the facts comprising 
the violation complained of as follows:

“I have been injured by discriminatory housing prac­
tices against minority group applicants and potential 
applicants under § 804(a), (b) and (d) of Title VTTT of 
the 1968 Civil Rights Act.” (Pet. Br., exhibits annexed 
to App. C).

Each complaint asserts that such violations occurred 
“ At all times during the past 180 days” . (Ibid.)

These sections of Title VIII declare it unlawful to refuse 
to rent to any person or to make available a dwelling on 
the ground of race, color, religion or national origin; to 
discriminate against any person in terms or conditions of 
rental on such ground; and to misrepresent to any person 
a dwelling’s availability for inspection or rental on such 
ground. Title VIII is set out in full at App. 5-22.

4



Petitioners Traffieante and Carr thereafter filed a civil 
complaint in the District Court under 42 U.S.C. § 3610(d)8 
based upon the same factual allegations as the adminis­
trative complaints, copies of which were annexed to the 
pleading.3 4 (Pet. Br., App. C and exhibits thereto). The 
complaint in intervention thereafter filed by other peti­
tioners is also based upon these same facts. It is in haec 
verba to the Traffieante and Carr complaint and, as peti­
tioners state, is “ . . . identical in all material respects . . .”, 
except that the intervening plaintiffs did not proceed by 
administrative complaint under 42 IT.S.C. § 3610 (Pet. Br., 
p. 4, fn. 2).

5

3. The Pendency Of A Companion Case
Within two weeks after the entry of judgment by the 

District Court dismissing the complaints, and immediately 
after petitioners filed their notice of appeal to the Court 
of Appeals, petitioners’ attorneys, again acting on behalf 
of the San Francisco Lawyers Committee for Urban A f­
fairs, filed a separate action in the same District Court, 
against the same defendants, claiming virtually identical 
housing discriminations (Btirbridge, et al. v. Parkmerced 
Corporation, et al., (N.D. Cal. No. C-71-378) filed February 
25,1971; a copy of this complaint is annexed as App. 24-33). 
The charging portions of the complaint in Burbridge are 
substantially the same as those in the case at bar, with the

3. 42 U.S.C. § 3610(d) provides that, if HUD shall not resolve 
the administrative complaint within a specified time, the complain­
ant may bring a civil action to . . enforce the rights granted or 
protected by [Title V III], insofar as such rights relate to the sub­
ject of the complaint [to HUD] . . .”

4. The civil complaint also purports to state causes of action 
under 42 U.S.C. § 3612 and 42 U.S.C. § 1982 based, however, upon 
the same factual allegations as the claim under § 3610(d) (Pet. Br., 
App. C at p. 6).



exception of immaterial additions reflecting Parkmerced 
Corporation’s purchase of the properties.5

Burbridge differs from the case at bar in two vital re­
spects. First, the plaintiffs in Burbridge allege that they 
personally were denied the opportunity to rent or make 
application to rent dwellings at Parkmerced and, second, 
the Burbridge plaintiffs bring their action as a class action 
under F.R.Civ.P. 23 purportedly on behalf of and binding 
upon all members of minority groups against whom the 
respondents allegedly have discriminated. Metropolitan 
and Parkmerced Corporation have answered the Burbridge 
complaint without challenging the standing of those plain­
tiffs to maintain suit. The propriety of class representation 
has not yet been judicially determined.

4. Parkmerced Corporation Had No Connection With Metro­
politan's Operation Of Parkmerced During The Complaint 
Period And Has Assumed Full Control Of The Complex

On December 21, 1970, more than seven months after 
the initial complaint to HUD (and two months after the 
last complaint in intervention), Metropolitan sold its inter­
est in the Parkmerced complex to Parkmerced Corporation, 
a California corporation recently formed for the purpose 
of acquiring the complex. The transaction took the form 
of an outright sale of buildings, structures and improve­
ments, including tenant leases, and a thirty-year lease of 
the underlying ground, with options in Parkmerced Cor­
poration to renew the ground lease for three additional 
fifteen-year terms. Metropolitan granted a purchase money

5. The Burbridge complaint recites that, prior to the purchase, 
Parkmerced Corporation “ . . . had knowledge of the allegations of 
racial discrimination contained hereby [sic] by virtue of their 
familiarity with the case of Trafficante, et al. v. Metropolitan Life 
Insurance Company (No. C-70-1754. [RHS] . . .”  (App. D, para. 
10 at App. 28).

6



mortgage for a portion of the purchase price and obtained 
a security interest in improvements, personal property and 
lease revenues (Kilmartin Affidavit, R. Ex. K .).6 Copies 
of the contract of sale, lease, mortgage and various letter 
agreements were filed as exhibits in the trial court. By the 
terms of these agreements, ownership of Parkmerced and 
control of its leasing and operating policies passed entirely 
to Parkmerced Corporation and Metropolitan has retained 
no interest in or control of operational policies.7

On January 5, 1971, two weeks after the Parkmerced 
sale, petitioners amended their complaints to state their 
cause of action against Parkmerced Corporation. Peti­
tioners demand that Parkmerced Corporation provide broad 
affirmative relief to remedy the alleged unlawful racial 
imbalance at Parkmerced and otherwise to correct the ef­
fects of discriminations allegedly practiced by Metropoli­
tan (Pet. Br,, App. C at p. 7 and App. D at p. 3). The 
sole bases stated for imposing such a burden upon Park­
merced Corporation are: (i) that prior to the purchase, 
Parkmerced Corporation knew of this litigation; (ii) the 
assertion, upon information and belief, that in its first two 
weeks of ownership Parkmerced Corporation did not make

6. The reference “ R.Ex......” refers to exhibits contained in the
certified record herein.

7. Petitioners’ amended complaints contain the unsupported and 
erroneous assertion that these companies . . made certain further 
agreements contemplating concerted future actions by them with 
respect to the operation and ownership of Parkmerced.” (Pet. Br., 
App. D. at para. 1 (d )). The lease and mortgage contain normal 
provisions for the protection of Metropolitan’s mortgage and 
ground lease interests. Side agreements provide for additional 
financing from Metropolitan of certain capital improvements and 
for adjustment of debt and ground lease relationships upon the 
possible future transfer of ownership of all or a part of the prem­
ises by Parkmerced Corporation. The sole provision which might 
affect Parkmerced Corporation’s independent operational control 
is a provision of the ground lease that Metropolitan, for “ cause”, 
can require Parkmerced Corporation to select and appoint an inde­
pendent property manager.

7



substantial changes in business operations or policies at 
Parkmerced; and (iii) the assertion, also upon information 
and belief, that Parkmerced Corporation intends to retain 
Metropolitan’s employees at the project and does not in­
tend to make substantial changes in operations or policies.8

SUMMARY OF ARGUMENT
I. Petitioners Lock Standing Under Title VIII

Petitioners lack standing because they are not appro­
priate persons to litigate the claimed denial of rights to 
third persons who they allege were excluded from the Park­
merced complex in violation of Title VIII (42 U.S.C. §§ 3601 
et seq.). The doctrine of standing has developed from the 
limitation in Article III of the Constitution of the judicial 
power to “ Cases” and “ Controversies” and requires that the 
party present a genuine dispute, adversary in nature, and 
that the party be in a position to adequately present and 
finally determine the controversy. Plaintiffs lack standing 
here because Title VIII does not create a private right of 
action in persons who are not themselves the objects of dis­
criminatory housing practices directly and personally in­
jured thereby and because petitioners are not persons appro­
priate to assert the rights of absent third parties. Litigation 
of the wrongful exclusion of others by these petitioners 
would be inconclusive, in that the persons whose rights are 
at issue are neither present nor represented in the action 
and would not be bound or affected thereby.

8. The amended complaints state that this last assertion is made 
“ [o]n the basis of . . .”  two letters, dated the date of the sale, 
directed to residents of Parkmerced for the purpose of informing 
them of the change of ownership and that their tenancies would 
not be affected. (Pet, Br., App. D, para. 4 at p. 3; the letters are 
annexed as exhibits to Pet. Br., App. D) The letters cannot be 
read as an admission that Parkmerced Corporation intended to 
undertake or continue a scheme of discrimination.



9
Title VIII proscribes “discriminatory housing practices” 

which are specifically defined in the Act.® Title VIII applies 
to a broad range of real estate transactions including the 
sale, lease or financing of a private dwelling.9 10 The com­
plaints allege violations of 42 U.S.C. §§ 3604(a), (b) and (d) 
which, as here pertinent, declare it unlawful to refuse to 
rent or to make unavailable a dwelling to any person who 
makes a bona fide offer on the ground of race, color, religion 
or national origin; to discriminate against any person in 
the terms, conditions or privileges of rental on such 
grounds; and to misrepresent the availability of a dwelling 
to any person on such grounds. The “person aggrieved” by 
such a discriminatory housing practice may complain to 
IiUD which will attempt to resolve the dispute by concilia­
tion.11 The aggrieved person may file a civil action to enforce 
his rights if conciliation by HUD is ineffective12 or may 
bring a civil action without prior complaint to HUD.13 In 
either case, the initial complaint must be made within 180 
days after the alleged violation occurred.14 Title VIII also 
provides that the Attorney General may bring a suit, with­
out reference to a specific period of limitations, to attack a 
“pattern or practice” of resistance to the rights granted by 
the Act, or the denial of such rights to a group of persons 
which raises an issue of “ general public importance.”15

These provisions, which proscribe specifically defined 
acts of discrimination against persons who seek to buy, rent

9. 42 U.S.C.
10. 42 U.S.C
11. 42 U.S.C
12. 42 U.S.C
13. 42 U.S.C
14. 42 U.S.C
15. 42 U.S.C

§§ 3602(f), 3604-06. 
. § 3603.
. § 3610.
. § 3610(d).
. § 3612.
. §§ 3610, 3612.
. § 3613.



or finance housing, and which limit the right of complaint or 
snit to a short limitations period, are inconsistent with the 
creation of a generalized public right to sue to create an 
integrated environment which petitioners demand. The 
“pattern or practice” provisions cannot be construed to 
create a private right of action. While the legislative history 
of Title VIII does not deal directly with the question of 
standing, the comments of sponsors and other legislators 
are most consistent with a Congressional intent to create 
only specific personal rights of action in persons who claim 
that they were discriminated against.

While in recent years the law of standing has been liberal­
ized in connection with attempts by private citizens to secure 
review of governmental agency action, such cases do not 
require that private litigants in the position of petitioners 
be granted standing to maintain suit against other private 
persons. The policy considerations which support a citizen’s 
standing to challenge the regularity and correctness of gov­
ernment action are irrelevant here and, in any event, this 
Court continues to require a showing of direct personal 
injury flowing from the challenged conduct, which petition­
ers here have not shown. Sierra Club v. Morton,.....IJ.S........,
92 S.Ct. 1361 (1972). Other authorities relied upon by 
plaintiffs arise under the labor and employment laws 
or public accommodations laws which differ materially 
from Title VIII. In almost all cases, the persons bringing 
suit allege that they themselves have been directly and per­
sonally injured by the defendant’s conduct placed at issue.

Petitioners in effect seek to assert the rights of third per­
sons, those who allegedly were excluded from Parkmereed. 
Petitioners bear no particular or special relationship to the 
persons whom they purport to represent and such persons 
are not disqualified from suit nor denied a forum to assert

10



11
their rights. Contrast Eisenstadt v. Baird,.....U.S........., 92
S.Ct. 1029 (1972). To the contrary, persons allegedly ex­
cluded from Parkmerced have in fact brought a 
companion case to that at bar in the form of a class action 
purporting to represent all those excluded on grounds of 
race or color (Burbridge, et al., v. Parkmerced Corp., et al., 
discussed at pp. 5-6, supra.)

Title VIII provides that a successful plaintiff may be 
awarded costs, attorneys’ fees and up to $1,000 punitive 
damages.16 There should be no concern, that if petitioners’ 
standing is denied, proper plaintiffs to secure the rights 
granted by Title VIII will not emerge.

EL Petitioners Lock Standing Under 42 U.S.C. § 1982
This Section was enacted in 1866 and is broad and declara­

tory in terms:
“ Section 1982. Property rights of citizens. All citi­
zens of the United States shall have the same right, in 
every State and Territory, as is enjoyed by white citi­
zens thereof to inherit, purchase, lease, sell, hold and 
convey real and personal property.” (42 U.S.C. § 1982)

Standing to sue under this statute has been accorded to 
persons who have been directly injured by the deprivation 
of their property rights, but has never been construed to 
provide a right of action in persons whose rights have not 
been so deprived. The reasons for the denial of petitioners’ 
standing under Title VIII are equally applicable to 42 
U.S.C. § 1982, in that the petitioners seek to litigate the 
claims of absent third parties and the litigation would be 
inconclusive and ineffective to bind the persons whose rights 
are at issue.

16. 42 U.S.C. § 3612(c).



III. As An Alternative Ground Of Decision, The Action Should Be 
Dismissed Against Parkmerced Corporation Because It Did 
Not Participate in Any Of The Wrongs Complained Of

Parkmerced Corporation purchased the Parkmerced com­
plex from Metropolitan many months after the transactions 
complained of in the complaint. Parkmerced Corporation 
had no connection with Metropolitan’s conduct of the prem­
ises and it has assumed independent control of rental policies 
at Parkmerced. Petitioners claim that Parkmerced Corpora­
tion should be required to litigate the merits of their claims 
and be subject to affirmative relief to remedy alleged racial 
imbalances at Parkmerced and to cure the effects of alleged 
past discriminations. The basis for subjecting Parkmerced 
Corporation to the burden and risks of litigation and to 
affirmative relief is that Parkmerced Corporation had notice 
of petitioners’ complaints herein.17

It is both improper and unfair to hold Parkmerced 
Corporation as a party or subject it to relief. Title VIII and 
42 U.S.C. § 1982 proscribe specific discriminatory conduct, 
none of which is attributed to Parkmerced Corporation by 
the complaints. Neither Title VIII nor 42 U.S.C. § 1982 pur­
ports to impose a kind or degree of racial or other integra­
tion which must exist at an apartment complex. Parkmerced 
Corporation should remain free to operate Parkmerced as 
it desires, so long as it does not itself engage in discrimina­
tory housing practices.

The fact that Parkmerced Corporation had notice of the 
charges is of no moment. Metropolitan has denied the 
charges. While Parkmerced has obtained indemnification 
against the costs of suit, there is no practical means by 
which it through agreement with Metropolitan could insu­
late itself from the adverse consequences of the dislocations

17. Other bases adverted to in the complaint are patently with­
out substance (see pp. 6-8, supra).

12



of its affairs and disparaging publicity which will arise 
from its joinder in the suit or from the adverse consequences 
of the broad affirmative relief which petitioners demand. A 
rule subjecting innocent purchasers to such liabilities be­
cause they had notice of unadjudicated claims would provide 
claimants an opportunity to hamper severely or frustrate 
real estate transactions by the filing of claims, whether made 
in good faith or not. These results are unwarranted and not 
required by either statute.

ARGUMENT
I. Tenants In A  Privately Owned Apartment Complex Do Not 

Have Standing To Maintain An Action Challenging Alleged 
Discriminatory Housing Practices Directed Against Others

The doctrine of standing has developed as a rule of 
judicial discretion and restraint to limit the range and kinds 
of persons entitled to require courts to adjudicate issues 
raised by a complaint. The doctrine has its origin in the 
limitation of the judicial power to “ Cases” and “ Controver­
sies” in Article III of the Constitution and in its essence 
requires that the dispute be genuine, that the proceeding be 
adversary in its nature and that the party claiming standing 
be in a position to represent adequately and determine 
authoritatively the rights and interests to be decided in the 
case. Flast v. Cohen, 392 U.S. 83, 94-106 (1968). As this 
Court stated in Flast v. Cohen:

“ Thus, in terms of Article III limitations on federal 
court jurisdiction, the question of standing is related 
only to whether the dispute sought to be adjudicated 
will be presented in an adversary context and in a form 
historically viewed as capable of judicial resolution. It 
is for the reason that the emphasis in standing prob­
lems is on whether the party invoking federal court 
jurisdiction has ‘a personal stake in the outcome of the 
controversy,’ Baker v. Carr, su-pra, 369 U.S. at 204, 82

13



S.Ct. at 703, and whether the dispute touches upon ‘the 
legal relations of parties having adverse legal inter­
ests.’ Aetna Life Insurance Co. v. Haworth, supra, 300 
U.S. at 240-241, 57 S.Ct. at 464.” (392 U.S. at p. 101).

Standing requires that, at the outset of a case, the plain­
tiff demonstrate that it has a direct, personal interest in 
resolution of the issues to be adjudicated and that the plain­
tiff be in a position to present the relevant issues with “ . . . 
that concrete adverseness which sharpens the presentations 
of issues upon which the court so largely depends for illum­
ination of difficult . . . questions” , Baker v. Carr, 369 U.S.
186, 204 (1962); Cf. Sierra Club v. Morton, .... U.S..... , 92
S.Ct 1361 (1972); Association of Data Processing Service 
Organizations, Inc. v. Camp, 397 U.S. 150 (1970).

By their complaints, petitioners seek to litigate the ques­
tion whether third parties were wrongfully excluded from 
Parkmereed. Petitioners cannot be granted standing under 
Title VIII because they do not have a direct, personal stake 
in the outcome of the issues to be tried, they do not present 
claims having the required concrete adverseness and the liti­
gation by them would be inconclusive and ineffectual to bind 
or affect the persons whose rights are claimed to have been 
denied.

The question here, narrowly stated, is whether the peti­
tioners are “persons aggrieved” within the intendment of 
42 U.S.C. §§ 3610(a) and 3612, which confer upon those 
“ aggrieved” a right of action. A mere claim of injury, 
indignation or loss does not, without more, suffice to demon­
strate standing. This Court must analyze the substantive 
rights created by Title VIII, the violations claimed in the 
complaints, and the nature of the issues made relevant and 
to be resolved in order to determine whether petitioners are 
appropriate plaintiffs to advocate the same. We submit that 
petitioners are not.

14



A. TITLE ¥11! CREATES SPECIFICALLY DEFINED RIGHTS OF ACTION IN 
PERSONS DISCRIMINATED AGAINST, BUT NOT THE GENERAL RIGHT TO 
MAINTAIN SUIT CLAIMED BY PETITIONERS

Petitioners argue that this Court should allow standing 
to the broadest range of potential plaintiffs because Title 
VIII expresses a policy of “ fair housing throughout the 
United States” (42 U.S.C. § 3601; Pet. Br., pp. 15-18). 
However, such a general statement cannot answer the ques­
tion whether Congress intended to enforce that policy by 
entitling tenants in a privately owned apartment complex 
to maintain judicial proceedings upon supposed acts of 
discrimination against third parties. Neither the language 
of the Act nor the legislative history supports such a 
conclusion.

15

1. The Language Of Title VIII
Title VIII is specific and exact as to the acts and 

practices, defined as “discriminatory housing practices” , 
declared unlawful (42 U.S.C. § 3602(f)). The practices 
declared unlawful are discrimination against any person 
in the sale or rental of housing, in the financing of housing 
and in the provision of real estate brokerage services (42 
U.S.C. §§ 3604-06). With certain exceptions not here rele­
vant, Title VIII is made applicable to a wide range of 
real estate transactions, including the sale or rental of a 
single family house through a broker or agent (42 U.S.C. 
§3603).

A “person aggrieved” ,18 may complain to the Secretary 
of HUD. The Secretary is required, in certain cases, to 
refer the complaint to appropriate local agencies, and is 
empowered to attempt to resolve the complaint by “ . . . in­

18. Defined as “  [a]ny person who claims to have been injured 
by a discriminatory housing practice or who believes that he will 
be irrevocably injured by a discriminatory housing practice that is 
about to occur . . . ”  (42 U.S.C. § 3610 (a ) ).



formal methods of conference, conciliation, and persuasion” 
(42 U.S.C. §§ 3610(a), (c)). If within thirty days after the 
complaint is filed with the Secretary, or after the expira­
tion of a period of reference to local authorities, the Secre­
tary has been unable to obtain voluntary compliance, the 
person aggrieved may commence an action in the Federal 
District Court (42 U.S.C. § 3610(d)). A  complaint under 
42 U.S.C. § 3610(a) must be “verified” and is required to be 
filed within 180 days after the alleged discriminatory hous­
ing practice occurred (42 U.S.C. § 3610(b)).

The Act provides an alternative private right of civil 
action to enforce “ [t]he rights granted [under the Act]
. . . ” and specifically contemplates that civil action will 
be grounded upon a claimed “ discriminatory housing prac­
tice” (42 U.S.C. § 3612). Action under this Section is avail­
able without prior complaint to HUD.

Title VIII also provides that the Attorney General may 
bring a civil action in the District Court,

“Whenever the Attorney General has reasonable cause 
to believe that any person or group of persons is en­
gaged in a pattern or practice of resistance to the full 
enjoyment of any of the rights granted by this sub­
chapter, or that any group of persons has been denied 
any of the rights granted by this subchapter and such 
denial raises an issue of general public importance 
. . .” (42 U.S.C. § 3613).

This Section contains no express limitations period. The 
Attorney General’s right of action under this Section is 
independent of the rights accorded private litigants and the 
elements of proof necessary to establish a “pattern or 
practice” in violation of 42 U.S.C. § 3613 differ materially 
from those applicable to private suits. United States v. 
West Peachtree Tenth Corf., 437 F.2d 221 (5th Cir. 1971).

16



As discussed at pp. 25-26, infra, this Section does not create 
any private right of action.

Thus, in creating a private right of action under Title 
VIII, Congress proscribed specifically defined “ discrimina­
tory housing practices” and required that a complaint be 
brought upon a verified complaint within 180 days after 
the act occurred. The specific violations claimed by peti­
tioners are that, within the 180-day period prior to May 
14, 1970, Metropolitan engaged in discriminatory housing 
practices against unidentified third parties. The factual and 
legal issues presented by these claims will be whether 
Metropolitan, during the relevant period: refused to rent 
or to negotiate for the rental of a dwelling to any person 
because of that person’s race, color, religion or national 
origin; or discriminated against any person in the terms, 
conditions or privileges of rental, or in the provision of 
services or facilities in connection with rental, on such 
grounds; or misrepresented to any person the availability 
of a dwelling for inspection or rental on such, grounds. De­
termination of these questions would require detailed in­
quiry at trial into what persons made application to Park- 
merced during such 180-day period; what each such 
applicant communicated to the Parkmerced staff and what 
such staff communicated to the applicant; whether the 
applicant presented himself in such manner as to demon­
strate his qualification under objective financial and other 
non-racial criteria established by Metropolitan; whether 
his offer to rent was “bona fide” (42 U.S.C. § 3604(a)) ;  and, 
in each case, whether any refusal to accept an application 
for rental, or to rent, or any misrepresentation as to avail­
ability of a dwelling, or discrimination in terms of rental, 
if it occurred, was in fact done or made because of such 
person’s race, color, religion or national origin.

17



If the case at bar should proceed to trial, these would 
be the central issues to be determined. However, none of 
the petitioners herein was the object or victim of any of 
the claimed discriminatory housing practices, and none 
appears to have been in any way a participant in or con­
nected with the alleged violations. None of the persons 
alleged to have been excluded or discriminated against is 
a party to this proceeding, or even identified or referred to 
in the complaint.

18

2. Legislative History Of Title VIII Does Not Support Petitioners' Standing 
To Sue

The legislative history of Title VIII is sparse but, to 
the extent the question of standing was adverted to, the 
history is most consistent with the grant of standing only 
to persons discriminated against.

The question is whether Congress intended to deal with 
segregated housing by empowering plaintiffs such as pe­
titioners to maintain suit. As the Ninth Circuit Court of 
Appeals stated in its opinion below, the language of the 
Act and statements in Congressional debates show with 
clarity that Congress intended to confer rights of action 
upon private individuals who were the direct victims of 
discriminatory housing practices and brought timely suit 
within 180 days after the violation occurred (42 IJ.S.C. 
§§ 3610, 3612), and to empower the Attorney General to 
challenge a “pattern or practice of resistance to the full 
enjoyment” of rights secured by the Act (42 U.S.C. § 3613), 
but nothing in the legislative history indicates that Congress 
contemplated that private individuals would be entitled to 
maintain suit because they are dissatisfied with the degree 
of integration or racial makeup of their community and 
believe that rights have been denied to others.



Thus, although in the House and Senate debate reference 
was made to the effects on society as a whole of segregated 
housing (Pet. Br., at p. 20), by far the greater emphasis 
by proponents of the bill was on concrete examples of black 
individuals who had been discriminated against and whose 
rights and dignity had been offended by such discrimina­
tion.19 The acts of discrimination set forth in 42 U.S.C. 
§ 3604 concretely express the Act’s emphasis on the indi­
vidual who has been discriminated against as the key to 
the enforcement of the congressional policy against dis­
crimination. The importance of these individual acts of 
discrimination is further underscored by the 180-day stat­
ute of limitations—a reflection of an intent that issues be 
presented concretely by those directly affected.20

Without in any way denying the crucial role in the en­
forcement of the Act played by private plaintiffs who have 
been objects of discrimination, Parkmerced Corporation, 
cannot agree with the petitioners’ and with the United

19

19. See Congressional Record Yol. 114 Nos. 3 and 4 debate on 
H.R. 2416. Said Senator Javits: “ [F ]or all the reasons I have 
described, and particularly because it relates so directly and, in­
deed, so poignantly to the dignity of the individual who is affected 
by the denial of housing opportunity and the right to live where 
he and his family choose to live, that fair housing legislation is 
needed.” 114 Cong. Rec. 2706.
Senator Hart stated “ The fellow who should be on the floor of the 
Senate urging us to adopt, the housing bill is a Negro— a Negro 
who . . . seeks to give his children the opportunity to live in a 
better neighborhood.” 114 Cong. Rec. 3247,
Senator Mondale referred, on several occasions, to witnesses who 
had appeared before the subcommittee at hearings on discrimination 
in housing: “ Two of our witnesses, Negroes who could not buy suit­
able housing, were typical. One was a Navy Lieutenant with 8 
years of experience . . . [T]he other was a distinguished professor 
of literature . . . Both of them had spent months going to homes 
which had “ For Sale” signs out in front . . . only to be rejected, 
. . . simply because of their color.” 114 Cong. Rec. 293. See also 
speeches by Senators Kennedy, Proxmire, Brooke, and Hatfield in 
support of H.R. 2516 in Yol. 114 Cong. Rec. Nos. 3 and 4.

20. 42U.S.C. § 3610(b).



States’ position in its amicns brief that the Congressional 
debates indicate an intention to make standing to enforce 
the Act extend to those in petitioners’ positions21.

In one of the few explanations of details of the bill, 
Senator Mondale, who with Senator Brooke sponsored the 
amendment to H.R. 2516 which contained the fair housing 
provisions, submitted a series of questions and answers 
on the bill. The response to the question of how the Act 
would be enforced contained the statement: “ Persons who 
believe they have been discriminated against may file a 
charge with the Department [IITJD]. If the Department 
decides to process the charge, it will so notify the person. 
If it decides not to, or fails to give notice within 30 days, 
the person can bring his own action in any court of compe­
tent jurisdiction.”22 The Dirksen Amendment which was 
eventually substituted for the Mondale amendment and 
which was the final form of the bill, somewhat reduced the 
role of HITD and gave persons who have been discriminated 
against the option of going directly to court (42 U.S.C. 
§ 3612). There is, however, no change in the language of 
“persons aggrieved” and no mention in later speeches

21. The Government’s interpretation of the legislative history 
of the Act is particularly tenuous. For example, the Government 
states:
“ It is noteworthy too that the only specific objection to the stand­
ing provision voiced in either the House or the Senate was that it 
was too broad.” (Amieus Br., text at fn. 29, p. 16).
The footnote indicates that this statement refers to comments made 
by Representative Pucinski. In fact, Representative Pucinski’s 
criticism of the enforcement provisions went to the fact that a 
right of action is accorded to those who believe they will be injured 
by an action that is about to occur. “ No other law provides such 
a. broad basis for action even before a discriminatory act actually 
occurs.” Mr. Pucinski also objected to the broad powers the Act 
gave federal officials in the local community. 114 Cong. Ree. 9603-04.

22. 114 Cong. Rec, 2273.

20



supporting the bill that the original purpose, described 
by Senator Mondale, of enforcement by “persons who 
believe they have been discriminated against” had been 
changed.23

We submit that it is impossible to find in this legislative 
history support for petitioners’ position that they have the 
right to relief under the provisions of Title VIII. A  Con­
gressional intent to extend to those not the direct objects 
of discrimination the right to challenge the alleged acts of 
discrimination cannot be inferred merely from the failure 
of Congress to state specifically that they do not have 
standing. This Court should require a clearer expression of 
legislative intent than mere silence before it permits the 
extension of standing to sue which petitioners seek in this 
case of first impression.24

B. THE SUGGESTION OP THE ASSISTANT REGIONAL ADMINISTRATOR OF 
HUD THAT PETITIONERS HAVE STANDING UNDER TITLE VIII IS NOT 
ENTITLED TO WEIGHT

Petitioners argue that HUD “ determined” that they are 
“ persons aggrieved” under Title VIII and that this deter­
mination is entitled to great deference and weight (Pet.

21

23. Senators Mondale and Brooke in moving to table their own 
amendment so that Senator Dirksen’s might be substituted stated 
that “ . . . the essential difference between the Mondale-Brooke 
amendment and the amendment about to be introduced” was that 
their amendment covered 7 million more housing units than did 
Senator Dirksen’s. 114 Cong. Rec. 4568. No mention of change in 
standing to enforce the Act was made.

24. It is noteworthy that, where Congress intended to create a 
general right of action in the public to secure certain civil rights, 
it had no difficulty in drafting legislation which specifically and 
clearly so provides. See, for example, the public accommodations 
provisions of The Civil Rights Act of 1964, which provide that 
“ [a] 11 persons shall be entitled to the full and equal enjoyment 
of . . . facilities . . . without discrimination or segregation . . .”  
(42 U.S.C. § 2000(a)). See Bailey v. Patterson, 369 U.S. 31 (1962), 
upholding a right of action in those who are the users of public 
accommodations.



22
Br., p. 21). This “ determination”, which followed a discus­
sion between petitioners’ counsel and the Assistant Regional 
Administrator of HUD, is contained in a letter from the 
Assistant Regional Administrator to petitioners’ counsel, 
dated November 5, 1970, reporting the status of HUD’s in­
vestigation:25

As this Court observed in Skidmore v. Swift, 323 U.S. 
134, 140 (1944):

“ The weight of [an administrative determination] in a 
particular case will depend upon the thoroughness 
evident in its consideration, the validity of its reason­
ing, its consistency with earlier and later pronounce­
ments, and all those factors which give it power to 
persuade, if lacking power to control.”

It is apparent from the face of the letter that the HUD 
investigation had been stalled by personnel shortages. The 
“ determination” of standing was made ad hoc by the re­
gional HUD office upon incomplete investigation and with-

25. The text of the letter (Ex. D to R. Ex. J) is as follows:
“ Subject: Trafficante, Cooney and Carr (VI-70-5-155, VI-70-5-156, 

VI-70-5-157) vs. Park Merced Metropolitan Life Ins. 
Co.

This letter is to inform you of the status of the complaint of your 
above mentioned clients. As was explained to you in previous con­
versations with Marvin R. Smith and Robert Jeffrey of this office, 
our efforts have been hindered by the acute manpower shortage 
and the overwhelming caseload which we have experienced. I assure 
you that the matter is still under investigation and efforts are being 
exerted to resolve the dispute expeditiously.
As previously discussed with you, it is the determination of this 
office that the complainants are aggrieved persons and as such are 
within the jurisdiction of Title VIII of the 1968 Civil Rights Act.
I appreciate your cooperative efforts in this matter.

Sincerely,
Clifton R. Jeffers
Assistant Regional Administrator”



out communication with respondents or an opportunity for 
either of them to be heard. None of the factors of reliability 
and persuasiveness referred to in Skidmore is present.

HUD’s comment on standing is gratuitous, in that it 
was not made in the course of administrative adjudication 
or rulemaking. HUD is granted broad investigative powers. 
The fact that HUD evidences willingness to accept a com­
plaint for purposes of investigation cannot be equated with 
an adjudicative determination that these petitioners have 
standing to maintain federal court proceedings.

C. DENIAL OP STANDING TO PETITIONERS HEREIN WILL NOT IMPAIR THE 
EFFECTIVE REALIZATION OF RIGHTS SECURED BY TITLE VIII

Petitioners and the Solicitor General suggest that, unless 
standing is allowed here, enforcement of Title VIII will be 
crippled and the role of private citizens to proceed as 
“ private attorneys general” to vindicate public interests 
and to attack “patterns or practices” of discrimination will 
be gravely impaired. None of these contentions has merit.

1. Title VIII Provides Material Incentives To Suit, And Persons Claiming They 
Were Discriminated Against Have In Fact Brought Suit

Title VIII provides the incentives of the award of actual 
damages, affirmative relief and discretionary punitive dam­
ages, court costs and attorneys’ fees which will ensure 
active pursuit of their rights by persons who believe they 
have been discriminated against (42 U.S.C. § 3602(c)). 
Such persons are neither disabled from suit nor denied a 
forum20 and there is no reason to conclude they will not 
enforce their rights. As noted at pp. 5-6, supra, while the 
appeal herein was pending before the Circuit Court, peti- 26

26. Compare Eisenstadt v. Baird,.......U.S........... , 92 S.Ct. 1029
(1972), discussed at page 33, infra, in which the persons whose 
rights were denied were not subject to prosecution and “ . . . to that 
extent, are denied a forum in which to assert their own rights.” 
(92 S.Ct. at p. 1034).

23



tioners’ attorneys filed the complaint in Burbridge, et al. v. 
Parkmerced Corporation, et al., npon virtually identical 
allegations of racial discrimination at Parkmerced. The 
plaintiffs in Burbridge are five Negroes who claim that they 
personally were excluded from Parkmerced by acts of dis­
crimination and they bring suit purportedly on behalf of 
a class of all persons similarly situated.

2. The Role Of Private Citizens To Proceed As "Private Attorneys General” 
Will Not Be Affected

We do not dispute that private plaintiffs have an im­
portant role in the enforcement of Title VIII, or that such 
plaintiffs, in appropriate cases, proceed as “ private attor­
neys general” vindicating important public interests. How­
ever, we have encountered no case in which a plaintiff 
is entitled to proceed, as a “private attorney general” or 
otherwise, unless that plaintiff claims direct personal injury 
to him and demonstrates concrete adverseness on the issues 
to be litigated.

The question whether public interests beyond the plain­
tiff’s private claim, are involved is wholly distinct from the 
question whether the plaintiff’s relation to the controverted 
issues raised by the complaint is within recognized bounds 
of standing. The suggestion that petitioners here must be 
accorded standing as quasi-attorneys general is no more 
than an argument that petitioners should have standing 
because they seek the kind of relief which an appropriate 
plaintiff might seek. Such an argument misconceives the 
function of standing to limit court proceedings to plaintiffs 
with the appropriate direct interest in the issues to be 
determined.

The private attorney general role is similar to that of 
a class action plaintiff, and courts have been strict in pro­

24



tecting the public interests represented by a plaintiff whose 
standing is clear.21.

In short, the plaintiff who “ takes on the mantle of the 
sovereign” (Jenkins v. United, Gas Corp., 400 F.2d 28, 32 
(5th Cir. 1968)) is always one whose relation to the imme­
diate controversy is well within the recognized bounds of 
standing.

25

3. Denial Of Standing To These Petitioners Will Not Frustrate Or Impair 
Attacks Upon "Patterns Or Practices” Of Discrimination

Both petitioners and the Solicitor General suggest that 
petitioners and other private plaintiffs have standing to 
challenge a “pattern or practice” of discrimination. As a 
matter of statutory construction, it would appear clear 
beyond question that 42 U.S.C. § 3613 does not confer a 
private right of action upon individuals and that a private 
complaint which alleges no more than a “pattern or prac­
tice” of discrimination sufficient to sustain action by the 
Attorney General would necessarily be dismissed for failure 
to state an actionable claim.

Title VIII provides that the Attorney General may bring 
a civil action to challenge a “ . . . pattern or practice of 
resistance to the full enjoyment of any of the rights granted 
by [the Act] . . . ” or the denial of rights to a “group” raising 27

27. For example, courts have decided that subsequent satisfac­
tion of the original plaintiff’s claim did not moot all of the indi­
vidual grievances or those of the class he represented, Jenkins v. 
United Gas Corp., 400 F.2d 28 (5th Cir. 1968); or that when a 
class action based on employer discrimination claims was properly 
brought, those subsequently joined need not have submitted their 
individual grievances to the E.B.O.C., Bowe v. Colgate Palmolive 
Co., 416 F.2d 711 (7th Cir. 1969) and Madlock v. Sardis Luggage 
Co., 302 F. Supp. 866 (N.D. Miss. 1969); or that use of union 
grievance arbitration tolls the statute of limitations for filing an
E. E.O.C. claim, Hutchings v. United States Industries, Inc., 428
F. 2d 303 (5th Cir. 1970); or that a poorly filled out E.E.O.C. com­
plaint subsequently amended is no bar to an action, Sanchez v. 
Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).



an issue of “ general public importance” (42 U.S.C. § 3613). 
The Attorney General’s right of action nnder this Section 
is independent of the right of private snit. It is not subject 
to an express limitations period. The elements of proof 
necessary to establish a “pattern or practice” differ mate­
rially from those applicable to private suits. United States 
v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 
1971); United States v. Boh Lawrence Realty, Inc., 313 
F. Supp. 870 (N.D. Ga. 1970); United States v. Mintses, 
304 F. Supp. 1305 (D. Md. 1969).

The fact that a proper private plaintiff whose standing 
to sue is clear may in appropriate circumstances maintain 
a class action or obtain broad affirmative relief does not 
place a private plaintiff in the position of the Attorney 
General to maintain a “pattern or practice” suit under 
42 U.S.C. § 3613.28

D. THE LEGAL AUTHORITIES CITED BY PETITIONERS DO NOT SUPPORT 
THEIR STANDING TO MAINTAIN A PRIVATE SUIT UNDER TITLE VIII 
TO LITIGATE THE RIGHTS OF ABSENT THIRD PARTIES

Petitioners rely upon a broad range of cases, each of 
which is distinguishable from and inapposite to the case 
at bar. They rely upon cases in which citizens and citizen 
groups have been allowed standing to challenge agency 
action of government officials; cases in which the plaintiffs 
(whether or not minority persons) suffered direct and 
immediate personal injury of the kind which the applicable

28. For these reasons, the criticism advanced by the Solicitor 
General and by petitioners of the statement of the Ninth Circuit 
Court of Appeals that the Act grants to the Attorney General, and 
not private plaintiffs, the right to sue to correct “ patterns and 
practices”  of discrimination is not well taken (Pet. Br., App. A, 
at pp. 6-7; see Pet. Br., p. 29; Amicus Brief of the United States, 
at p. 20). The Court’s statement cannot be construed as suggesting 
that, if a “ pattern or practice” exists, a private plaintiff who other­
wise would have a perfected right of action under 42 U.S.C. §§ 3610 
or 3612 is disabled from suit.

26



statute was designed to prevent; cases in which plaintiffs, 
for policy reasons not here applicable, were found entitled 
to assert the rights of others; and cases arising under the 
public accommodations provisions of the 1964 Civil Eights 
Act, or under the equal employment and labor laws, which 
involve particular legislative policies and statutory lan­
guage unlike that presented here. These lines of authority 
are discussed below and involve factual situations, statutes 
and judicial and legislative policy considerations different 
from and wholly inapplicable to those at issue.

27

1. Cases Involving A Citizen’s Challenge To Governmental Agency Action
The bulk of the cases relied upon by petitioners are 

cases where the court found that private citizens and 
citizen groups have standing to challenge agency and other 
action of government officials upon allegations that such 
officials have failed either to perform duties imposed by 
law or properly to take account of public interests which 
such officials are required by law to protect.29

These cases reflect a policy to permit private suit in 
order to insure the competence, regularity, fairness and * 83

29. E.g., Sierra Club v. Morton, .......U.S............, 92 S.Ct. 1361
(1972); Association of Data Processing Service Organizations, Inc. 
v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 
(1970); Carter v. Greene County, 396 U.S. 320 (1970); Brown v. 
Board of Education, 347 U.S. 483 (1954); Flast v. Cohen, 392 U.S.
83 (1968); Rogers v. Paul, 382 U.S. 198 (1965); Kennedy Park 
Homes Association, Inc. v. City of Lackawanna, 436 F.2d 108 (2d 
Cir. 1970), cert, den., 401 U.S. 1010 (1971); Shannon v. HUD, 436 
F.2d 809 (3rd Cir. 1970); Wheeler v. Durham City Board of Edu­
cation, 363 F.2d 738 (4th Cir. 1966); Sisters of Providence of St. 
Mary of the Woods v. City of Evanston, 335 F. Supp. 396 (N.D. 
111. 1971) ; Hobson v. Hansen, 320 F. Supp. 409 (D.D.C. 1970) ; 
Movable v. Alabama Mental Health Board, 297 F. Supp. 291 (M.D. 
Ala. 1969); Lee v. Macon County Board of Education, 267 F. Supp. 
458 (N.D. Ala,.), aff’d per curiam, 389 U.S. 215 (1967) ; Scenic 
Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 
1965), cert, den., 384 U.S. 941 (1966); Cf. Environmental De­
fense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970).



correctness of governmental agency actions. Such action 
typically affects large segments of the business and social 
community and often involves the carrying out of plans 
and programs whose effects pervade the community and 
may be irremediable. For example, in Sierra Club v. Morton,
..... U.S........ , 92 S. Ct. 1361 (1972) and Scenic Hudson
Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 
1965), cert, den., 384 U.S. 941 (1966), the controversy cen­
tered on the environmental, ecological and social impact of 
wilderness and river development plans whose effects, if 
carried out, at least arguably, could not be reversed or re­
stored within a millennium. In many cases, the adverse 
impact of the agency action is generalized throughout all or 
a large segment of society and the direct, personal injury to 
any complainant may be barely perceptible (e.g., Flast v. 
Cohen, 392 U.S. 83 (1968)). But, unless concerned citizens 
are allowed standing, these important social interests may 
have no spokesman at all and there may be no effective 
check upon abuses by government officials (e.g., United 
Church of Christ v. F.C.C., 359 F.2d 994 (D.C. Cir. 1966)). 
Notwithstanding, this Court continues to require a strict 
showing of direct, personal injury as a prerequisite to suit 
(,Sierra Club v. Morton, supra).

Recent cases in this Court have concerned standing to 
review government agency action, and have not concerned 
the question of standing of private plaintiffs to maintain 
suit against other private persons.30 While these cases 
provide guidance as to the “ Case” or “ Controversy” limits 
of the judiciary’s Article III powers, they do not determine 
the case at bar. In applying these cases, lower courts have

30. See, for example, Sierra Club v. Morton, supra; Flast v. 
Cohen, supra; Association of Data Processing Service Organiza­
tions, Inc. v. Camp, 397 U.S. 150 (1970); Arnold Tours, Inc. v. 
Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 
401 U.S. 617 (1971).

28



emphasized that their broad impact is restricted to the 
review of agency action. For example, in Connecticut Action 
Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir. 
1972), the Court of Appeals denied standing to private 
citizens to bring injunctive proceedings against an alleged 
polluter of navigable waters. The applicable federal statute 
placed the duty to conduct such proceedings in the Depart­
ment of Justice (Compare 42 U.S.C. § 3613). The Court 
distinguished Data Processing, Scenic Hudson, and similar 
cases on the ground that they involved challenges to govern­
ment action, and explained:

“ It is one thing to reduce the showing of legal wrong, 
adverse effect, or aggrievement (see 6 U.S.C. § 702) 
when a citizen seeks judicial scrutiny of actions pro­
posed to be taken by the Government, and quite an­
other to allow one citizen to bring suit on behalf of 
the general public against a private individual who has 
done no more harm to him than to all the others 
comprising the public. In the former case, the question 
is who may ask the courts to keep Government itself 
within lawful bounds. The latter deals with the sepa­
rate issue of who may represent the public in seeking 
to confine private individuals within the law. To allow 
any citizen to perform that function, normally ful­
filled by the Government, would obviously raise grave 
problems for equal, fair, and consistent law enforce­
ment.” (457 F.2d at pp. 89-90).

See also Solien v. Misc. Drivers and Helpers Union, 
Local No. 610, 440 F.2d 124, 132 (8th Cir.), cert, den., 403 
U.S. 905 (1971) in which the Court of Appeals affirmed 
denial of standing to the employer-company to intervene 
or otherwise be a party to injunctive proceedings by the 
N.L.R.B. against a union. The Court analysed Data Process­
ing and its companion case, Barlow v. Collins, 397 U.S. 
159 (1970), in the following terms:

29



“Both Bata Processing and Barlow presented the ques­
tion of what interest one must allege in order to 
establish that he is sufficiently aggrieved by an admin­
istrative order to be entitled to judicial review under 
the Administrative Procedure Act, 5 U.S.C. § 701 et 
seq., of the adverse agency action. The decisions in 
both cases can fairly be said to represent a trend 
‘toward enlargement of the class of people who may 
protest administrative action’ where statutes are con­
cerned. Bata Processing Service, 397 U.S. at 154, 90 
S.Ct. at 830. Since we are concerned with the issue 
of whether charging parties have the right to obtain 
appellate review from a judicial order in a § 10(1) 
proceeding and not the right of judicial review of 
administrative action, Bata Processing and Barlow 
are not controlling.” (440 F.2d at p. 132) [Emphasis 
in original]

Parkmerced is a privately owned and privately financed 
complex which operates without government assistance or 
involvement and cannot be characterized as acting for any 
level of government.31 Further, Parkmerced neither as­
sumes nor performs obligations of the state, such as fire, 
safety or health care, nor opens itself to unrestricted public 
access so as to take on the character of a municipality or 
public facility.32

2. Cases In Which The Plaintiffs Have Suffered Direct Personal Injury Cogniz­
able Under The Relevant Statute

Petitioners also rely upon cases in which the particular 
persons claiming standing, whether or not themselves mem­
bers of the minority group discriminated against, suffered

31. Compare Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969); 
Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

32. Lloyd Corp., Ltd. v. Tanner, .......  U.S. .......  [40 U.S.L.W.
4829], (June 22, 1972); Compare Amalgamated Food Employees 
Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); 
Marsh v. Alabama, 326 U.S. 501 (1946).

30



direct personal injury of the kind which the statute involved 
sought to prevent. For example, petitioners cite cases where 
white persons were denied the use of public accommodations 
because they were in the company of Negroes,88 or were 
summarily ejected from their apartment because they in­
vited Negroes as their guests,84 or were expelled from a com­
munity club because they conveyed property to a Negro,33 34 35 
or were subjected to a civil action for damages because 
they sold property to a non-Caucasian, in violation of a 
legally unenforceable racial covenant.36

Petitioners in the case at bar do not allege a similar 
direct, personal injury to them resulting from the discrim­
inatory housing practices described in the complaint. They 
complain of the generalized impact upon them and the rest 
of the community of an asserted racial imbalance which 
they find unacceptable.87

In Sierra Club v. Morton, ..... U.S.   , 92 S. Ct. 1361
(1972), this Court emphasized that:

a mere ‘interest in a problem,’ no matter how 
longstanding the interest and no matter how qualified 
the organization is in evaluating the problem, is not 
sufficient by itself to render the organization ‘adversely 
affected’ or ‘aggrieved’ within the meaning of the 
APA.”

#  *  *

“ The requirement that a party seeking review must 
allege facts showing that he is himself adversely af­
fected does not insulate executive action from judicial

33. Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970); Valle v. 
Stengel, 176 F.2d 697 (3d Cir. 1949); Tolg v. Grimes, 355 F.2d 
92 (5th Cir.), cert, den., 384 U.S. 988 (1966); Offner v. Shell’s City, 
Inc., 376 F.2d 574 (5th Cir. 1967).

34. Walker v. Pointer, 304 F. Supp. 56 (N.D. Tex. 1969).
35. Sullivan v. Little Hunting Park, 396 U.S. 230 (1969).
36. Barrows v. Jackson, 346 U.S. 249 (1953); Shelley v. 

Kraemer, 334 U.S. 1 (1947).

31



review, nor does it prevent any pnblic interests from 
being protected through the judicial process. It does 
serve as at least a rough attempt to put the decision as 
to whether review will be sought in the hands of those 
who have a direct stake in the outcome. That goal 
would be undermined were we to construe the APA to 
authorize judicial review at the behest of organizations 
or individuals who seek to do no more than vindicate 
their own value preferences through the judicial proc­
ess.” (92 S. Ct. atpp. 1368-69).

32

3. Cases In Which Plaintiffs Are Permitted To Assert The Rights Of Absent 
Third Parties Who Are Otherwise Denied A Forum

Petitioners cite several cases in this category.37 38 They 
should not be permitted to assert the rights of third parties 
because petitioners do not bear a professional, fiduciary or 
similar relationship to those whose rights they assert, and 
the third parties are neither denied a forum nor disqualified 
from suit. They have in fact brought suit (Burbridge, et al. 
v. Parkmerced Corporation, et al., discussed at pp. 5-6, 
supra).

While the disqualification of a party to assert the rights 
of absent third parties has been characterized as this 
Court’s “ . . . self-imposed rule . . .” (Eisenstadt v. Baird, 
..... U.S........, 92 S. Ct. 1029, 1034 (1972), this Court has

37. The general nature of petitioners’ complaints is illustrated 
by the affidavit of Dr. Poussaint upon which they rely for explana­
tion of the injuries to them. (Pet. Br., pp. 13-14; the Poussaint 
AS. is annexed as App. B to Pet. Br.) Dr. Poussaint is a psychia­
trist residing in Massachusetts who apparently has never spoken to 
any of the petitioners, or any other Parkmerced residents, nor se_en 
the Parkmerced property. His affidavit comments on the social 
harm to the society at large from racial imbalance. The affidavit 
which was submitted on a motion and not as part of a pleading, 
does not provide concreteness or specificity to the complaint.

38. Eisenstadt v. Baird, ------  U.S.........., 92 S.Ct. 1029 (1972);
Barrows v. Jackson, 346 U.S. 249 (1953) (See Pet. Br., pp. 27-28).



abrogated the rule only where the claimants were directly 
injured by the denial of rights, the party bore a 
particular relationship to the holders of the right (e.g., 
doctor-patient), and such holders were, by applicable law 
or otherwise, disabled from suit in their own behalf or 
denied a forum for the assertion of their rights.8® For 
example, in Eisenstadt, the appellee Baird had established 
himself as an advocate to challenge Massachusetts’ criminal 
laws limiting the distribution of contraceptives and had 
been convicted of criminal violation of those laws. This 
Court emphasized that potential users of contraceptives 
were not subject to prosecution and “ . . . to that extent, 
are denied a forum in which to assert their own rights.” 
(92 S. Ct. at p. 1034).

Similarly, in Griswold v. Connecticut, 381 U.S. 479 
(1965), the defendant asserting third party rights was 
Executive Director of the Planned Parenthood League of 
Connecticut and a licensed physician who had prescribed 
contraceptives and had been convicted as accessory to the 
crime of using contraceptives under Connecticut law. In 
Barrows v. Jackson, 346 U.S. 249 (1953), a party had sold 
land to a non-caucasian and was subjected to a damage 
action for breach of a racially restrictive covenant.

Compare Tileston v. Ullman, 318 U.S. 44 (1943), holding 
that a physician, who had not been prosecuted under the 
Massachusetts contraceptive laws but claimed he feared 
such prosecution, does not have standing. This Court ques­
tioned whether plaintiff presented a “ . . . genuine case or 
controversy essential to the exercise of the jurisdiction of 
this Court” (318 U.S., at p. 46). Tileston was cited with ap- 39

39. Eisenstadt v. Baird, supra; Griswold v. Connecticut, 381 
U.S. 479 (1965); Barrows v. Jackson, 346 U.S. 249 (1953); Cf. 
Tileston v. Tillman, 318 U.S. 44 (1943); Younger v. Harris, 401 
U.S. 37 (1971).

33



proval in the recent Eisenstadt decision of this Court, and 
has been followed by lower courts.40

In Younger v. Harris, 401 U.S. 37 (1971), this Court 
considered the standing of intervenors who claimed that the 
California Criminal Syndicalism Act inhibited their free­
dom of speech as members of The Progressive Labor Party 
and college instructors. This Court held that Harris, who 
had been indicted under the Act, presented “ . . . an acute, 
live controversy with the State and its prosecutor” (401 
U.S. at p. 41), but denied standing to intervenors because 
they were not subject to imminent prosecution and they 
did not present a “genuine controversy” (401 U.S. at p. 42).

34

4. Cases Arising In The Areas Of Public Accommodations And Labor Rela­
tions Under Statutory Schemes Unlike Title VIII

Petitioners refer to cases arising under laws forbidding 
discrimination in public accommodations and to labor rela­
tions cases (Pet. Br., pp. 26-27). These cases involved 
claimants whose direct, personal injury was clear and, 
in any case, arose under statutes which are wholly unlike 
Title VIII.

For example, Bailey v. Patterson, 369 U.S. 31 (1962), 
held that passengers in segregated public facilities had 
standing to enforce a right to non-segregated treatment. 
The section of the 1964 Civil Eights Act applicable in 
Bailey provides:

“ All persons shall be entitled to the full and equal 
enjoyment . . .  of any place of public accommodation 
. . . without discrimination or segregation on the 
ground of race, color, religion, or national origin.” (42 
U.S.C. § 2000a(a)).

40. E.g., Meyer v. Massachusetts Eye and Ear Infirmary, 330 
F. Supp. 1328 (D. Mass. 1971), in which a staff doctor was denied 
standing to raise the rights of private and clinic patients in the 
hospital.



This Section clearly grants a right to “ all persons” to enjoy 
public accommodations “without discrimination or segre­
gation” . No comparable right is created by Title VIII. In 
most of the public accommodation cases cited by petitioners, 
the plaintiffs had in fact been directly injured by exclusion 
or harassment.41

Petitioners also misplace their reliance on labor and 
employment cases.42 A number of the cases establish no 
more than the proposition that an employer’s racial policies 
are proper subjects for collective bargaining and negotia­
tion and that an employee’s rights to such bargaining and 
negotiation are protected by the labor laws.43 In many 
of these cases, the direct, personal injury to the complain­
ant was clear, in that he had been in fact excluded or dis­
charged from employment.44

35

41. Adickes v. S. H. Kress & Co., 398 IT.S. 144 (1970); Offner v. 
Shell's City, Inc., 376 F.2d 574 (5th Cir. 1967); Tolg v. Grimes, 
355 F.2d 92 (5th Cir.), cert, den., 384 U.S. 988 (1966); and Nesmith 
v. Alford, 318 F.2d 110 (5th Cir. 1963). The latter ease arose under 
42 U.S.C. § 1983.

42. N.L.R.B. v. Tanner Motor Livery, Ltd,, 349 F.2d 1 (9th 
Cir. 1965); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 
552 (1938); Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971); 
Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970).

43. E.g., N.L.R.B. v. Tanner Motor Livery, Ltd., 349 F.2d 1 
(9th Cir. 1965), construing Section 7 of the National Labor Rela­
tions Act, 29 U.S.C. §157; Cf. New Negro Alliance v. Sanitary 
Grocery Co., 303 U.S. 552 (1938), applying the Norris-LaGuardia 
Act, 29 U.S.C. §§ 104, 107 (a-e), 113 (a-c), to protect picketing by 
non-employees.

44. Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971); N.L.R.B. 
v. Tanner Motor Livery, Ltd., 349 F.2d 1 (9th Cir. 1965); Carr v. 
Conoco Plastics, Inc., 423 F.2d 57 (5th Cir.), cert, den., 400 U.S. 
951 (1970). The facts of Carr illustrate the deficiencies in petition­
ers’ standing here: the Carr plaintiffs had been excluded from em­
ployment and brought a class action on behalf of themselves and all 
others (including employees) discriminated against. The individual 
plaintiffs’ standing was not at issue, and the sole question before 
the court was the propriety of the class, which the court upheld 
(423 F.2d at pp. 62-66).



Cases in tlie labor relations area are affected by a 
national labor policy inapplicable to the ease at bar. The 
policy of onr labor laws, formed and developed over many 
years, has been to substitute arbitration and collective 
bargaining for industrial strife. Mr. Justice Harlan char­
acterized the collective bargaining agreement as:

“ . . . [A] generalized code to govern a myriad of 
cases. . . . The collective agreement covers the whole 
employment relationship. It calls into being a new 
common law—the common law of a particular industry 
or of a particular plant.” John Wiley d  Sons, Inc. v. 
Livingston, 376 U.S. 543, 550 (1964), quoting United 
Steel Workers of America v. Warrior & Gulf Naviga­
tion Co., 363 U.S. 574,578-79 (1960).

As a result of these policies, courts have given the greatest 
breadth to the “ terms and conditions” of employment which 
may properly be made part of bargaining. The fair employ­
ment provisions of the Civil Rights Act of 1964 are phrased 
in terms far broader than Title VIII and do not provide an 
accurate analogy.45

IS. Standing To Maintain Suit Under 42 U.S.C. § 1982 Is Limited 
To Those Directly Injured By The Claimed Violation

The terms of 42 U.S.C. § 1982 are declaratory and very 
broad:

“ Section 1982. Property rights of citizens. All citi­
zens of the United States shall have the same right, in

45. It is declared unlawful:
“  [T ]o fail or refuse to hire or to discharge any individual or other­
wise to discriminate . . .”  (42 U.S.C. § 2000e-2(a) (1 ) ) ;  “ [T]o fail 
or refuse to refer for employment or othenvise discriminate . . .”  
(42 U.S.C. § 2000e-2(b)) ; “ [T ]o exclude or to expel from its mem­
bership, or otherwise to discriminate . . (42 U.S.C. § 2000e-2(e)) ;
and with respect to training programs, “ [T]o discriminate against 
any individual because of his race, color, religion, sex, or national 
origin in admission to, or employment in, any program established 
to provide apprenticeship or other training.” (42 U.S.C. § 2000e-2 
(d ) ) (emphasis added).

36



every State and Territory, as is enjoyed by white citi­
zens thereof to inherit, purchase, lease, sell, hold and 
convey real and personal property.”

Its applicability to a given situation can only be determined 
by examining the instances in which rights have been up­
held under its provisions.

This Act has been construed to provide standing to a 
Negro person refused the right to purchase or lease prop­
erty on the basis of race, Jones v. Alfred II. Mayer Com­
pany, 392 U.S. 409 (1968), Harris v. Jones, 296 F. Supp. 
1082 (I). Mass. 1969); to a white person expelled from 
membership in a community pool club because he rented 
property and assigned membership rights to a Negro, 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); 
and to white persons summarily evicted from leased 
premises because they entertained Negro guests, Walker v. 
Pointer, 304 F. Supp. 56 (N.Ii). Tex. 1969). However, we 
have found no case which purports to confer standing 
under 42 U.S.C. § 1982 to persons in petitioners’ position— 
i.e., those not the direct objects of, or directly affected by, 
a violation of the act.

All of the petitioners here are themselves tenants of 
Parkmereed. None of them has been denied the right to 
lease or hold real property which the Act by its terms 
provides. The petitioners base their complaints under 42 
U.S.C. § 1982 upon the identical factual allegations of the 
claims of discriminatory housing practices in violation of 
Title VIII (see pp. 4-5, supra). As discussed in the preced­
ing portions of this brief, these petitioners lack the direct, 
personal interest or concrete adversity upon the issues to 
be determined sufficient to confer upon petitioners standing 
to litigate the alleged denial of the rights of others. In 
addition, such litigation would be inconclusive, in that the

37



persons whose rights allegedly were deprived are not pres­
ent and would not he bound by the result.

III. Dismissal Of The Complaints Against Parkmereed Corporation 
Should Be Affirmed On The Additional Ground That Park­
mereed Corporation Did Not Participate In The Alleged Viola­
tions And Cannot Be Compelled To Litigate, Or Be Held 
Liable For, Alleged Misconduct of Metropolitan

As stated at pp. 6-7, supra, Parkmereed Corporation 
acquired the Parkmereed complex from Metropolitan on 
December 21, 1970, many months after the filing of the 
complaints herein. Petitioners moved the joinder of Park­
mereed Corporation as a defendant pursuant to F.R.Civ.P. 
25(c), and in opposition to joinder and in support of its 
subsequent motion to dismiss the complaints,46 Parkmereed 
Corporation contended that the petitioners had not shown 
facts sufficient to warrant the court’s requiring Parkmereed 
Corporation to endure the risks, dislocations and expense of 
this litigation, or be subject to affirmative or other relief. 
In their amended complaints, petitioners assert that Park­
mereed Corporation . . is legally obligated to take . . . 
affirmative action . . .” to correct the effects of the alleged 
discriminatory housing practices followed by Metropolitan 
and to desist from any practice which would continue the 
effects of past discriminations (Pet. Br., App. D, para. 5 
at p. 3).

46. Parkmereed Corporation’s joinder under F.R.Civ.P. 25(c) 
was ordered by the District Court on December 30, 1970. As or­
dered by the Court, on January 5, 1971, petitioners filed an amend­
ment to their complaints purporting to state a cause of action 
against Parkmereed Corporation (set forth as Appendix D to 
petitioners’ brief). Thereafter, Parkmereed Corporation filed its 
motion to dismiss the complaints on two grounds: first, that peti­
tioners lacked standing to sue; and second, that the amended com­
plaints failed to state a cause of action against Parkmereed Cor­
poration (F.R. Civ. P. 12(b) (6) ).  In their opinions below, neither 
the District Court (App. 1-3) nor the Ninth Circuit Court of 
Appeals considered the latter ground for dismissal (Pet. Br., 
App. A, fn. 4 at p. 2).

38



The basis upon which petitioners would require Park- 
merced Corporation to be joined and be subject to injunc­
tive relief is that Parkmerced Corporation, prior to its 
purchase, had notice of petitioners’ charges. Petitioners also 
advance the patently insubstantial grounds that, during the 
two-week interval between Parkmerced Corporation’s pur­
chase and the filing of the amended complaints, no “ sub­
stantial change in the business operations” was effected, 
and that the Parkmerced tenants were advised at the time 
of the sale that there would be no change in the Parkmerced 
staff (App. D. to Pet. Br.). (Seepp. 6-7, swpra).

A. PARKMERCED CORPORATION WAS UNCONNECTED WITH METROPOLI­
TAN'S CONDUCT, AND HAS ASSUMED FULL OPERATIONAL CONTROL 
INDEPENDENT OF METROPOLITAN

Parkmerced Corporation had no connection of any kind 
with the rental policies and procedures followed by Metro­
politan at the Parkmerced complex during the complaint 
period. There is no basis in fact for an assertion (and no 
assertion is made) that Parkmerced Corporation (or its 
promoters, incorporators, or stockholders) at any time 
influenced Metropolitan’s pre-complaint conduct, or that 
the sale of Parkmerced was a “ sham” transfer or was in 
any way motivated by a desire to avoid or frustrate enforce­
ment of civil rights. Parkmerced Corporation paid full 
value for the Parkmerced properties and, upon the closing 
of the sale on December 21, 1970, it assumed complete and 
independent operating control. Metropolitan has had no 
responsibility for operating and rental policies of the 
Parkmerced property after that date. None of the policies 
or practices which Parkmerced Corporation is alleged to 
have continued after the purchase is itself claimed to be a 
discriminatory housing practice in violation of Title VIII 
or 42 U.S.C. § 1982.

39



B. TITLE VIII AND 42 U.S.C. § 1982 SHOULD NOT BE APPLIED TO BURDEN 
PURCHASERS UNCONNECTED WITH THE ALLEGED DISCRIMINATORY 
CONDUCT

The vice of the compulsory joinder of Parkmerced 
Corporation is that it is forced to endure the risks, disloca­
tion and expenses of the trial of factual and legal issues in 
dispute between petitioners and Metropolitan, which are 
wholly foreign to Parkmerced Corporation. Parkmerced 
Corporation simply has no knowledge of the facts and 
cannot reasonably be expected to defend another’s conduct, 
most particularly where the motive, intent and purpose of 
such conduct are at issue. The litigation promises to be 
protracted. Metropolitan has denied wrongdoing and un­
doubtedly will continue to do so. Parkmerced Corporation 
has been exposed to adverse periodical and newspaper 
publicity which prominently identifies it with the lawsuit. 
Petitioners have demanded broad affirmative relief to cor­
rect the alleged racial imbalance and remedy the effects of 
alleged past discriminations by Metropolitan. It is impos­
sible to foresee what that relief might entail, or the adverse 
impact the relief might have upon Parkmerced Corporation, 
its operations and its financial prospects.

The practical consequences of a rule which permits or 
requires joinder of a disinterested purchaser simply be­
cause it has notice that charges of discriminatory housing 
practices have been made against the seller would be un- 
warrantedly severe. While such a purchaser can obtain 
indemnification by the seller against the direct costs of 
suit, as Parkmerced Corporation has done here, there is no 
practical means by which the purchaser can obtain protec­
tion or indemnification against the ill effects upon it of the 
protracted litigation, the adverse publicity, or the pervasive 
affirmative relief. It is impractical to suggest that a seller 
and purchaser in such a position might agree that, if the 
claimant should prevail, the purchaser would have the right

40



to “unwind” the transactions and restore the burden of 
affirmative relief to the seller. Complex real estate trans­
actions involve the financial and tax planning and commit­
ment of many entities and cannot be held in an uncertain 
status during years of litigation, or readily dismantled if 
the litigation result should be adverse. In effect, such a 
rule provides persons willing to launch civil rights com­
plaints against a seller with the kind of leverage, by the 
mere filing of a complaint, that would be expected to frus­
trate and make impractical consummation of the real estate 
transaction.

Neither Title VIII nor 42 U.S.C. § 1982, by its terms, 
requires that affirmative relief be extended to an inde­
pendent purchaser, such as Parkmerced Corporation. Both 
Title VIII and 42 U.S.C. § 1982 proscribe specific discrimi­
natory conduct. Neither Act prescribes a kind or degree 
of integration, or racial, religious or other mixture which 
is sought or required for compliance. Parkmerced Corpo­
ration, or any other purchaser, is entitled to own and 
operate an apartment complex that is all White, all Negro, 
all Oriental—of any racial or ethnic character—so long as 
Parkmerced Corporation does not itself discriminate in 
violation of the Acts.

As an equitable matter, Parkmerced Corporation should 
not be required to remain a party to this litigation or be 
subjected to the threat of injunctive relief unless the peti­
tioners allege in good faith and prove that it is an “ instru­
mentality” or “ alter ego” of Metropolitan, or that the sale 
to Parkmerced Corporation was a “ sham”, or made for 
the purpose of avoiding civil rights compliance. Mere 
purchase of assets of an entity charged with violation of 
the law will not, in itself, justify equitable relief against the 
purchaser. See United States v. Johns-Manville Corp., 245 
F. Supp. 74, 82 (E.D. Pa. 1965), in which the trial court

41



refused to enter injunctive relief against a purchaser of 
assets from a defendant found to have violated the anti­
trust laws. In discussing the propriety of entering an injunc­
tion forbidding securities laws violations against defendant 
corporate officials in their individual capacities, the Court 
of Appeals for the Tenth Circuit stressed the importance 
of participation in a wrong as a basis for imposing injunc­
tive relief:

“ But also traditionally in equity, where there is a 
right to issue a general injunction in a situation, the 
court has the power inherently to impose upon any 
persons, who have contributingly played a part in the 
doing or committing of the enjoinable action involved 
(where they are made party to the suit), such reason­
able and relevant individual restraint as may be neces­
sary to enable the decree to accomplish its preventive 
purpose.” 8.E.C. v. Barraco, 438 F.2d 97, 98 (10th 
Cir. 1971).

The question of the proper scope and effect of an injunc­
tive decree to bind successors in interest has been most often 
considered by courts in the context of F.R.Civ.P. 65(d).47 
A  number of cases have indicated that an injunction may 
not bind a successor in interest unless the court finds that 
the successor is in “ active concert” or “participation” with 
those against whom the injunction was entered or is availed 
of as a disguised continuance of the predecessor’s. Regal 
Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945); United Phar-

47. F.R.Civ.P. 65 (d) provides:
“ (d) F o r m  a n d  S c o p e  o p  I n j u n c t io n  or  R e s t r a in in g  O r d e r . 
Every order granting an injunction and every restraining order 
shall set forth the reasons for its issuance; shall be specific in terms; 
shall describe in reasonable detail, and not by reference to the com­
plaint or other document, the act or acts sought to be restrained; 
and is binding only upon the parties to the action, their officers, 
agents, servants, employees, and attorneys, and upon those persons 
in active concert or participation with them who receive actual 
notice of the order by personal service or otherwise. ’ ’

42



macal Corp. v. U.8., 306 F.2d 515 (1st Cir. 1962); Annota­
tion, 97 A.L.R.2d 490. While, unlike cases arising under this 
Rule, Parkmerced Corporation has been made a party in 
the proceeding for the injunction, the equitable principles 
to be applied should not differ.

We anticipate that petitioners will refer this Court to 
cases arising in the labor relations area as authority for the 
assertion that a purchaser with notice properly may be 
bound to carry out collective bargaining agreements or 
remedy unfair labor practices of the seller. The trend of 
labor cases has been to hold successors in interest liable 
where the successor represents in practical effect the sub­
stantial continuance of the predecessor’s enterprise.48

In contrast to Title VIII and 42 U.S.C. § 1982 in question 
here, labor legislation reflects an unique national policy to 
regulate the broad employer-employee relationship. (See 
discussion at pp. 34-36, supra) In John Wiley & Sons, Inc. v. 
Livingston, 376 U.S. 543 (1964), discussed at p. 36, supra, 
the Court held that a successor by merger was bound by a 
preexisting collective bargaining agreement. The Court 
emphasized the “ . . . substantial continuity of identity in the 
business enterprise . . .” as central to the decision. (376 
U.S., at 551)

43

48. Compare U.S. Pipe & Foundry Co. v. N.L.R.B., 398 F.2d 
544 (5th Cir. 1968) (holding that a purchaser pendente lite, with 
notice of charges against the predecessor is without more required 
to reinstate employees wrongfully discharged by seller), with 
N.L.R.B. v. Birdsall-Stochdale Motor Co., 208 F.2d 234 (10th Cir. 
1953) (holding that a purchaser is bound only if it bears a par­
ticular relationship with the seller, such as active participation in 
the wrongdoing, “ disguised continuance” of the seller, instru­
mentality for evasion of an order, and the like). Cf. N.L.R.B. v. 
Deena Artiuare, Inc., 361 U.S. 398 (1960), holding that the N.L.R.B. 
should be given the opportunity to prove relationships between 
seller and purchaser corporations to determine the enforceability 
against the purchaser of an order entered against the seller. The 
Deena Artware case suggests that only certain successors having 
particular relationships with the seller will be bound.



44

The practical effect of compelling a purchaser or succes­
sor corporation to carry out terms of a collective bargaining 
agreement, or to restore employment to specific persons 
who have claimed that they were wrongfully discharged, 
or to remedy specific claimed unfair labor practices, differs 
materially from the problem here. The purchaser in those 
situations is able to read and analyze the agreement by 
which he might be bound, and to review and assess the 
practical impact upon him of the claimed rights to employ­
ment or correction of prior practices. In contrast, Park- 
merced Corporation has no notice of the particular persons 
who claim the right to apartments at Parkmereed and no 
practical means to assess the impact upon it of the broad 
affirmative relief which petitioners have demanded.

Moreover, Parkmereed Corporation is not in any real 
sense a “ successor” to Metropolitan. The latter is a large, 
well-established company whose affairs are barely affected 
by the Parkmereed sale. Metropolitan is fully capable of 
defending its conduct and of responding in damages if a 
violation be found.

For these reasons, it is our position that F.R.Civ.P. 25(c) 
does not contemplate the joinder of a purchaser in the 
position of Parkmereed Corporation. The Rule ap­
plies upon the “ . . . transfer of interest . . .”49 and has 
obvious application to the successor by merger, sale of 
substantially all assets, or transfer of rights to a trustee 
in bankruptcy. The Rule also has application where a third 
party obtains an interest in the subject matter of the action, 
as by an assignment, or by the acquisition of an interest

49. F.R.Civ.P.25(c) reads:
“ (c) T r a n s f e r  o f  I n t e r e s t . In case of any transfer of interest, 
the action may be continued by or against the original party, unless 
the court upon motion directs the person to whom the interest is 
transferred to be substituted in the action or joined with the ori­
ginal party. Service of the motion shall be made as provided in 
subdivision (a) of this rule.”



in the res in an in rem proceeding (see generally, Moore’s 
Federal Practice, § 25.08 (2d ed. 1969)). While petitioners 
have requested affirmative relief, the action in no sense 
involves the title to or ownership of the Parkmerced com­
plex; Title VIII and 42 U.S.C. § 1982 do not provide for 
in rem proceedings against specific properties. These Acts 
proscribe particular kinds of conduct and their violation is 
in the nature of a tort for which recovery may be had 
only against the wrongdoer. In no sense has the purchase 
of Parkmerced resulted in Parkmerced Corporation’s ac­
quiring an “ interest” in the subject matter of the action, 
or in Metropolitan, so as to warrant its joinder under 
F.R.Civ.P. Rule 25(c).

CONCLUSION
For the foregoing reasons, we respectfully request that 

this Court affirm the dismissal of petitioners’ complaints 
herein on the ground that they lack standing to maintain 
suit on the causes of action stated in their complaints. 
Alternatively, we request that this Court dismiss the action 
against Parkmerced Corporation on the ground that peti­
tioners have not shown a substantial basis for relief against 
Parkmerced Corporation.

Dated:
July 14,1972,
San Francisco, California.

Respectfully submitted,
R obert M. S h e a ,
K ate C. F reeland ,
D in k e lspie l , S teefel , L evitt ,

W eiss & D onovan

Attorneys for Respondent 
Parkmerced Corporation

45

(Appendices Follow)



Appendix A

In the United States District Court for the 
Northern District of California

Case No. C-70 1754(EHS)

Paul J. Trafiicante, et al.,
Plaintiffs,

and
Committee of Parkmerced Residents Com­

mitted to Open Occupancy, et al.,
Plaintiffs in Intervention, 

v.
Metropolitan Life Insurance Company, 

et al.,
Defendants.

MEMORANDUM OPINION AND ORDER 
DISMISSING COMPLAINT AND COMPLAINT 

IN INTERVENTION
Plaintiffs, residents of the Parkmerced complex of apart­

ments and town houses in San Francisco, brought this 
action under 42 IT.S.C. § 1982 and the fair housing provi­
sions of Title VIII of the Civil Rights Act of 1968, 42 U.S.C., 
Chapter 45, alleging that defendant Metropolitan, the then 
owner and operator of Parkmerced, was engaging in dis­
criminatory housing practices in violation of the Act, 
making Parkmerced what plaintiffs have repeatedly re­
ferred to in this litigation as a “white ghetto” and depriving 
plaintiffs of their alleged right to live in a racially integrated 
community. A complaint in intervention was filed by com­
munity organizations and civic-minded individuals reiterat­
ing substantially the same claims. During the course of the 
litigation Metropolitan sold substantially all its interests in 
Parkmerced to Parkmerced Corporation, which now oper­
ates it and was joined as a defendant.



2 Appendix
The threshold question, of course, is whether the plain­

tiffs have standing to maintain this action. They do not 
allege, nor can they, that they themselves have been denied 
any of the rights guaranteed by Title VIII or by 42 U.S.C. 
§ 1982 to purchase or rent real property. Rather, they assert 
that the denial of such rights to others not parties to this 
action violates the policies of the Act and has resulted in 
denying them the benefits of living in the type of integrated 
community which Congress hoped to achieve by enacting 
Title VIII.

The Court, after full review of the voluminous memo­
randa submitted, has concluded that plaintiffs and plain­
tiffs in intervention have no such generalized standing as 
they assert to enforce the policies of the Act. More specifi­
cally, they are not “persons aggrieved” under § 810 of the 
Act, 42 U.S.C. § 3610(a), and therefore may not maintain 
this suit under § 812, 42 U.S.C. § 3612, or under 42 U.S.C. 
§ 1982. The enforcement of the public interest in fair housing 
enunciated in Title VIII of the Act and the creation of 
integrated communities to the extent envisioned by Con­
gress are entrusted to the Attorney General by § 814, 42 
U.S.C. § 3613, and not to private litigants such as those 
before the Court.

In reaching this conclusion the Court is not unmindful 
of the “ private attorneys general” cases heavily relied upon 
by plaintiffs, including, quite recently, Data Processing 
Service v. Camp, 397 U.S. 150 (1970). Each of such cases, 
however, was brought under the Administrative Procedure 
Act or otherwise involved action by a government agency 
and not the activities of private individuals such as are in­
volved here. These cases are extensively reviewed and dis­
tinguished in Sierra Club v. HicJcel, 433 F. 2d 24 (9th Cir. 
1970).



Appendix  3
The motions to dismiss are granted and the complaint 

and complaint in intervention herein are dismissed.
Dated: February 10,1971

R obert H. S ch n a ck e  
Robert H. Schnacke

United States District Judge



4 Appendix
Appendix B

United States Court of Appeals 
for the Ninth Circuit

No. 71-1325

Filed Sep 13 1971 
Wm. B. Luck, Clerk

Paul J. Trafficante, et al.,
Plaintiffs and Appellants, 

vs.
Metropolitan Life Insurance Company, et al.,

Appellees.

Before: CHAMBERS and CARTER, Circuit Judges, 
and JAMESON, District Judge.

The petition for a rehearing is denied. The suggestion for 
a rehearing en banc is rejected.

All active circuit judges of the court have been advised 
of the suggestion for a rehearing en banc and none has re­
quested it.



Appendix C
C 1. FAIR HOUSING ACT OF 1968 

42 TJ.S.C. §§ 3601-3619
§ 3601. Declaration of policy

It is the policy of the United States to provide, within 
constitutional limitations, for fair housing throughout the 
United States.
Pub.L. 90-284, Title VIII, § 801, Apr. 11,1968, 82 Stat. 81.

§ 3602. Definitions 
As used in this subchapter—
(a) “ Secretary” means the Secretary of Housing and 

Urban Development.
(b) “Dwelling” means any building, structure, or portion 

thereof which is occupied as, or designed or intended for 
occupancy as, a residence by one or more families, and any 
vacant land which is offered for sale or lease for the con­
struction or location thereon of any such building, structure, 
or portion thereof.

(c) “ Family” includes a single individual.
(d) “ Person” includes one or more individuals, corpora­

tions, partnerships, associations, labor organizations, legal 
representatives, mutual companies, joint-stock companies, 
trusts, unincorporated organizations, trustees, trustees in 
bankruptcy, receivers and fiduciaries.

(e) “ To rent” includes to lease, to sublease, to let and 
otherwise to grant for a consideration the right to occupy 
premises not owned by the occupant.

( f ) “Discriminatory housing practice” means an act that 
is unlawful under section 3604, 3605, or 3606 of this title.

(g) “ State” means any of the several States, the District 
of Columbia, the Commonwealth of Puerto Rico, or any of 
the territories and possessions of the United States. 
Pub.L. 90-284, Title VIII, § 802, Apr. 11,1968, 82 Stat. 81.

Appendix 5



6 A ppendix
§ 3603. Effective dates of certain prohibitions—Applica­

tion to certain described dwellings
(a) Subject to the provisions of subsection (b) of this 

section and section 3607 of this title, the prohibitions 
against discrimination in the sale or rental of housing set 
forth in section 3604 of this title shall apply:

(1) Upon enactment of this snbchapter, to—
(A) dwellings owned or operated by the Fed­

eral Government;
(B) dwellings provided in whole or in part with 

the aid of loans, advances, grants, or contributions 
made by the Federal Government, under agree­
ments entered into after November 20,1962, unless 
payment due thereon has been made in full prior 
to April 11,1968;

(C) dwellings provided in whole or in part by 
loans insured, guaranteed, or otherwise secured 
by the credit of the Federal Government, under 
agreements entered into after November 20, 1962, 
unless payment thereon has been made in full 
prior to April 11, 1968: Provided, That nothing 
contained in subparagraphs (B) and (C) of this 
subsection shall be applicable to dwellings solely 
by virtue of the fact that they are subject to mort­
gages held by an FDIC or FSLIC institution; and

(D) dwellings provided by the development or 
the redevelopment of real property purchased, 
rented, or otherwise obtained from a State or local 
public agency receiving Federal financial assist­
ance for slum clearance or urban renewal with 
respect to such real property under loan or grant 
contracts entered into after November 20, 1962.

(2) After December 31, 1968, to all dwellings cov­
ered by paragraph (1) and to all other dwellings except 
as exempted by subsection (b) of this section.

Exemptions
(b) Nothing in section 3604 of this title (other than sub­

section (c) ) shall apply to—



(1) any single-family house sold or rented by an 
owner: Provided, That such private individual owner 
does not own more than three such single-family houses 
at any one time: Provided further, That in the case 
of the sale of any such single-family house by a private 
individual owner not residing in such house at the time 
of such sale or who was not the most recent resident of 
such house prior to such sale, the exemption granted 
by this subsection shall apply only with respect to one 
such sale within any twenty-four month period: Pro­
vided further, That such bona fide private individual 
owner does not own any interest in, nor is there owned 
or reserved on his behalf, under any express or vol­
untary agreement, title to or any right to all or a por­
tion of the proceeds from the sale or rental of, more 
than three such single-family houses at any one time: 
Provided further, That after December 31, 1969, the 
sale or rental of any such single-family house shall be 
excepted from the application of this subchapter only 
if such house is sold or rented (A) without the use in 
any manner of the sales or rental facilities or the sales 
or rental services of any real estate broker, agent, or 
salesman, or of such facilities or services of any person 
in the business of selling or renting dwellings, or of any 
employee or agent of any such broker, agent, salesman, 
or person and (B) without the publication, posting or 
mailing, after notice, of any advertisement or written 
notice in violation of section 3604(c) of this title; but 
nothing in this proviso shall prohibit the use of attor­
neys, escrow agents, abstractors, title companies, and 
other such professional assistance as necessary to per­
fect or transfer the title, or

(2) rooms or units in dwellings containing living 
quarters occupied or intended to be occupied by no 
more than four families living independently of each 
other, if the owner actually maintains and occupies 
one of such living quarters as his residence.

Appendix 7



8 Appendix
Same; business of selling or renting dwellings defined
(c) For the purposes of subsection (b) of this section, 

a person shall be deemed to be in the business of selling or 
renting dwellings if—

(1) he has, within the preceding twelve months, par­
ticipated as principal in three or more transactions 
involving the sale or rental of any dwelling or any 
interest therein, or

(2) he has, within the preceding twelve months, 
participated as agent, other than in the sale of his own 
personal residence in providing sales or rental facili­
ties or sales or rental services in two or more 
transactions involving the sale or rental of any dwel­
ling or any interest therein, or

(3) he is the owner of any dwelling designed or in­
tended for occupancy by, or occupied by, five or more 
families.

Pub.L. 90-284, Title VIII, § 803, Apr. 11, 1968, 82 Stat. 82.

§ 3604. Discrimination in the sale or rental of housing
As made applicable by section 3603 of this title and except 

as exempted by sections 3603(b) and 3607 of this title, it 
shall be unlawful—

(a) To refuse to sell or rent after the making of a bona 
fide offer, or to refuse to negotiate for the sale or rental 
of, or otherwise make unavailable or deny, a dwelling to 
any person because of race, color, religion or national 
origin.

(b) To discriminate against any person in the terms, 
conditions, or privileges of sale or rental of a dwelling, or 
in the provision of services or facilities in connection there­
with, because of race, color, religion, or national origin.

(c) To make, print, or publish, or cause to be made, 
printed, or published any notice, statement, or advertise­
ment, with respect to the sale or rental of a dwelling that



Appendix 9
indicates any preferences, limitation, or discrimination 
based on race, color, religion, or national origin, or an in­
tention to make any such preference, limitation, or discrim­
ination.

(d) To represent to any person because of race, color, 
religion, or national origin that any dwelling is not avail­
able for inspection, sale, or rental when such dwelling is in 
fact so available.

(e) For profit, to induce or attempt to induce any person 
to sell or rent any dwelling by representations regarding 
the entry or prospective entry into the neighborhood of a 
person or persons of a particular race, color, religion, or 
national origin.
Pub.L. 90-284, Title VIII, § 804, Apr. 11, 1968, 82 Stat. 83.

§ 3605. Discrimination in the financing of housing
After December 31, 1968, it shall be unlawful for any 

bank, building and loan association, insurance company or 
other corporation, association, firm or enterprise whose 
business consists in whole or in part in the making of com­
mercial real estate loans, to deny a loan or other financial 
assistance to a person applying therefor for the purpose of 
purchasing, constructing, improving, repairing, or main­
taining a dwelling, or to discriminate against him in the 
fixing of the amount, interest rate, duration, or other terms 
or conditions of such loan or other financial assistance, be­
cause of the race, color, religion, or national origin of such 
person or of any person associated with him in connection 
with such loan or other financial assistance or the purposes 
of such loan or other financial assistance, or of the present 
or prospective owners, lessees, tenants, or occupants of the 
dwelling or dwellings in relation to which such loan or other 
financial assistance is to be made or given: Provided, That 
nothing contained in this section shall impair the scope



10 Appendix
or effectiveness of the exception contained in section 3603(b) 
of this title.
Pub.L. 90-284, Title VIII, § 805, Apr. 11, 1968, 82 Stat. 83.

§ 3606. Discrimination in the provision of brokerage serv­
ices

After December 31,1968, it shall be unlawful to deny any 
person access to or membership or participation in any 
multiple-listing service, real estate brokers’ organization 
or other service, organization, or facility relating to the 
business of selling or renting dwellings, or to discriminate 
against him in the terms or conditions of such access, mem­
bership, or participation, on account of race, color, religion, 
or national origin.
Pub.L. 90-284, Title VIII, § 806, Apr. 11, 1968, 82 Stat. 84.

§ 3607. Religious organization or private club exemption
Nothing in this subchapter shall prohibit a religious or­

ganization, association, or society, or any nonprofit institu­
tion or organization operated, supervised or controlled by 
or in conjunction with a religious organization, association, 
or society, from limiting the sale, rental or occupany of 
dwellings which it owns or operates for other than a com­
mercial purpose to persons of the same religion, or from 
giving preference to such persons, unless membership in 
such religion is restricted on account of race, color, or 
national origin. Nor shall anything in this subchapter pro­
hibit a private club not in fact open to the public, which 
as an incident to its primary purpose or purposes provides 
lodgings which it owns or operates for other than a com­
mercial purpose, from limiting the rental or occupancy of 
such lodgings to its members or from giving preference to 
its members.
Pub.L. 90-284, Title VTII, § 807, Apr. 11, 1968, 82 Stat. 84.



Appendix 11
§ 3608. Administration—Authority and responsibility

(a) The authority and responsibility for administering 
this Act shall be in the Secretary of Housing and Urban 
Development.

Delegation of authority; appointment of hearing 
examiners; location of conciliation meetings; 

administrative review
(b) The Secretary may delegate any of his functions, 

duties, and powers to employees of the Department of 
Housing and Urban Development or to boards of such 
employees, including functions, duties, and powers with 
respect to investigating, conciliating, hearing, determining, 
ordering, certifying, reporting, or otherwise acting as to 
any work, business, or matter under this subchapter. The 
persons to whom such delegations are made with respect 
to hearing functions, duties, and powers shall be appointed 
and shall serve in the Department of Housing and Urban 
Development in compliance with sections 3105, 3344, 5362, 
and 7521 of Title 5. Insofar as possible, conciliation meet­
ings shall be held in the cities or other localities where the 
discriminatory housing practices allegedly occurred. The 
Secretary shall by rule prescribe such rights of appeal 
from the decisions of his hearing examiners to other hear­
ing examiners or to other officers in the Department, to 
boards of officers or to himself, as shall be appropriate and 
in accordance with law.

Cooperation of Secretary and executive departments and 
agencies in administration of housing and urban 

development programs and activities to 
further fair housing purposes

(c) All executive departments and agencies shall ad­
minister their programs and activities relating to housing 
and urban development in a manner affirmatively to fur-



12 Appendix
ther the purposes of this subchapter and shall cooperate 
with the Secretary to further such purposes.

Functions of Secretary
(d) The Secretary of Housing and Urban Development 

shall—
(1) make studies with respect to the nature and 

extent of discriminatory housing practices in repre­
sentative communities, urban, suburban, and rural, 
throughout the United States;

(2) publish and disseminate reports, recommenda­
tions, and information derived from such studies;

(3) cooperate with and render technical assistance 
to Federal, State, local, and other public or private 
agencies, organizations, and institutions which are 
formulating or carrying on programs to prevent or 
eliminate discriminatory housing practices;

(4) cooperate with and render such technical and 
other assistance to the Community Relations Service 
as may be appropriate to further its activities in pre­
venting or eliminating discriminatory housing prac­
tices; and

(5) administer the programs and activities relating 
to housing and urban development in a manner affirm- 
actively to further the policies of this subchapter.

Pub.L. 90-284, Title VIII, § 808(a), (c)-(e), Apr. 11, 1968, 
82 Stat. 84, 85.

§ 3609. Education and conciliation, conferences and con- 
sulations; reports

Immediately after April 11, 1968, the Secretary shall 
commence such educational and conciliatory activities as in 
his judgment will further the purposes of this subchapter. 
He shall call conferences of persons in the housing indus­
try and other interested parties to acquaint them with the 
provisions of this subchapter and his suggested means of



Appendix 13
implementing it, and shall endeavor with their advice to 
work out programs of voluntary compliance and of enforce­
ment. He may pay per diem, travel, and transportation 
expenses for persons attending such conferences as provided 
in section 5703 of Title 5. He shall consult with State and 
local officials and other interested parties to learn the 
extent, if any, to which housing discrimination exists in 
their State or locality, and whether and how State or local 
enforcement programs might be utilized to combat such 
discrimination in connection with or in place of, the Secre­
tary’s enforcement of this subchapter. The Secretary shall 
issue reports on such conferences and consultations as he 
deems appropirate.
Pub.L. 90-284, Title VIII, § 809, Apr. 11, 1968 82 Stat. 85.

§ 3610. Enforcement—Person aggrieved; complaint; copy;
investigation; informed proceedings; violations of 
secrecy; penalties

(a) Any person who claims to have been injured by a 
discriminatory housing practice or who believes that he 
will be irrevocably injured by a discriminatory housing 
practice that is about to occur (hereafter “person ag­
grieved” ) may file a complaint with the Secretary. Com­
plaints shall be in writing and shall contain such informa­
tion and be in such form as the Secretary requires. Upon 
receipt of such a complaint the Secretary shall furnish a 
copy of the same to the person or persons who allegedly 
committed or are about to commit the alleged discrimina­
tory housing practice. Within thirty days after receiving 
a complaint, or within thirty days after the expiration of 
any period of reference under subsection (c) of this section, 
the Secretary shall investigate the complaint and give 
notice in writing to the person aggrieved whether he 
intends to resolve it. If the Secretary decides to resolve the



14 Appendix
complaint, he shall proceed to try to eliminate or correct 
the alleged discriminatory housing practice by informal 
methods of conference, conciliation, and persuasion. Noth­
ing said or done in the course of such informal endeavors 
may be made public or used as evidence in a subsequent 
proceeding under this subchapter without the written con­
sent of the persons concerned. Any employee of the 
Secretary who shall make public any information in viola­
tion of this provision shall be deemed guilty of a mis­
demeanor and upon conviction thereof shall be fined not 
more than $1,000 or imprisoned not more than one year.

Complaint; limitations; answer; amendments; verification
(b) A complaint under subsection (a) of this section 

shall be filed within one hundred and eighty days after 
the alleged discriminatory housing practice occurred. Com­
plaints shall be in writing and shall state the facts upon 
which the allegations of a discriminatory housing prac­
tice are based. Complaints may be reasonably and fairly 
amended at any time. A respondent may file an answer to 
the complaint against him and with the leave of the 
Secretary, which shall be granted whenever it would be 
reasonable and fair to do so, may amend his answer at any 
time. Both complaints and answer shall be verified.

Notification of State or local agency of violation of State 
or local fair housing law; commencement of State or 
local law enforcement proceedings; certification of 

circumstances requisite for action by Secretary
(c) Wherever a State or local fair housing law provides 

rights and remedies for alleged discriminatory housing 
practices which are substantially equivalent to the rights 
and remedies provided in this subchapter, the Secretary 
shall notify the appropriate State or local agency of any 
complaint filed under this subchapter which appears to



Appendix 15
constitute a violation of such State or local fair housing 
law, and the Secretary shall take no further action with 
respect to such complaint if the appropriate State or local 
law enforcement official has, within thirty days from the 
date the alleged offense has been brought to his attention, 
commenced proceedings in the matter, or having done so, 
carries forward such proceedings with reasonable prompt­
ness. In no event shall the Secretary take further action 
unless he certifies that in his judgment, under the circum­
stances of the particular case, the protection of the rights 
of the parties or the interests of justice require such action.

Commencement of civil actions; State or local remedies 
available; jurisdiction and venue; findings; injunc­

tions ; appropriate affirmative orders
(d) I f within thirty days after a complaint is filed with 

the Secretary or within thirty days after expiration of 
any period of reference under subsection (c) of this sec­
tion, the Secretary has been unable to obtain voluntary 
compliance with this subchapter, the person aggrieved may, 
within thirty days thereafter, commence a civil action in 
any appropriate United States district court, against the 
respondent named in the complaint, to enforce the rights 
granted or protected by this subchapter, insofar as such 
rights relate to the subject of the complaint: Provided, 
That no such civil action may be brought in any United 
States district court if the person aggrieved has a judicial 
remedy under a State or local fair housing law which pro­
vides rights and remedies for alleged discriminatory hous­
ing practices which are substantially equivalent to the 
rights and remedies provided in this subchapter. Such 
actions may be brought without regard to the amount in 
controversy in any United States district court for the dis­
trict in which the discriminatory housing practice is alleged



16 Appendix
to have occurred or be about to occur or in which the 
respondent resides or transacts business. If the court finds 
that a discriminatory housing practice has occurred or 
is about to occur, the court may, subject to the provisions 
of section 3612 of this title, enjoin the respondent from 
engaging in such practice or order such affirmative action 
as may be appropriate.

Burden of proof
(e) In any proceeding brought pursuant to this section, 

the burden of proof shall be on the complainant.

Trial of action; termination of voluntary 
compliance efforts

(f) Whenever an action filed by an individual, in either 
Federal or State court, pursuant to this section or section 
3612 of this title, shall come to trial the Secretary shall 
immediately terminate all efforts to obtain voluntary com­
pliance.
Pub.L. 90-284, Title VIII, § 810, Apr. 11, 1968, 82 Stat. 85.

§ 3611. Evidence—Investigation; access to records, docu­
ments, and other evidence; copying; searches and 
seizures; subpenas for Secretary; interrogatories; 
administration of oaths

(a) In conducting an investigation the Secretary shall 
have access at all reasonable times to premises, records, 
documents, individuals, and other evidence or possible 
sources of evidence and may examine, record, and copy 
such materials and take and record the testimony or state­
ments of such persons as are reasonably necessary for 
the furtherance of the investigation: Provided, however, 
That the Secretary first complies with the provisions of 
the Fourth Amendment relating to unreasonable searches



Appendix 17
and seizures. The Secretary may issue subpenas to compel 
his access to or the production of such materials, or the 
appearance of such persons, and may issue interrogatories 
to a respondent, to the same extent and subject to the same 
limitations as would apply if the subpenas or interroga­
tories were issued or served in aid of a civil action in the 
United States district court for the district in which the 
investigation is taking place. The Secretary may adminis­
ter oaths.

Subpenas for respondent
(b) Upon written application to the Secretary, a re­

spondent shall be entitled to the issuance of a reasonable 
number of subpenas by and in the name of the Secretary 
to the same extent and subject to the same limitations as 
subpenas issued by the Secretary himself. Subpenas issued 
at the request of a respondent shall show on their face the 
name and address of such respondent and shall state that 
they were issued at his request.

Compensation and mileage fees of witnesses
(c) Witnesses summoned by subpena of the Secretary 

shall be entitled to the same witness and mileage fees as 
are witnesses in proceedings in United States district 
courts. Fees payable to a witness summoned by a subpena 
issued at the request of a respondent shall be paid by him.

Bevocation or modification of petition for subpena; 
good reasons for grant of petition

(d) Within five days after service of a subpena upon 
any person, such person may petition the Secretary to re­
voke or modify the subpena. The Secretary shall grant 
the petition if he finds that the subpena requires appear­
ance or attendance at an unreasonable time or place, that



18 Appendix
it requires production of evidence which does not relate 
to any matter under investigation, that it does not describe 
with sufficient particularity the evidence to be produced, 
that compliance would be unduly onerous, or for other good 
reason.

Enforcement of subpena
(e) In case of contumacy or refusal to obey a subpena, 

the Secretary or other person at whose request it was is­
sued may petition for its enforcement in the United States 
district court for the district in which the person to whom 
the subpena was addressed resides, was served, or trans­
acts business.

Violations; penalties
(f) Any person who willfully fails or neglects to attend 

and testify or to answer any lawful inquiry or to produce 
records, documents, or other evidence, if in his power to do 
so, in obedience to the subpena or lawful order of the Secre­
tary, shall be fined not more than $1,000 or imprisoned not 
more than one year, or both. Any person who, with intent 
thereby to mislead the Secretary, shall make or cause to be 
made any false entry or statement of fact in any report, 
account, record, or other document submitted to the Secre­
tary pursuant to his subpena or other order, or shall will­
fully neglect or fail to make or cause to be made full, true, 
and correct entries in such reports, accounts, records, or 
other documents, or shall willfully mutilate, alter, or by 
any other means falsify any documentary evidence, shall be 
fined not more than $1,000 or imprisoned not more than one 
year, or both.

Attorney General to conduct litigation
(g) The Attorney General shall conduct all litigation in 

which the Secretary participates as a party or as amicus 
pursuant to this Act.
Pub.L. 90-284, Title VIII, § 811, Apr. 11,1968, 82 Stat. 87.



Appendix 19
§ 3612. Enforcement by private persons—Civil action; 

Federal and State jurisdiction; complaint; limita­
tions ; continuance pending conciliation efforts; 
prior bona fide transactions unaffected by court 
orders

(a) The rights granted by sections 3603, 3604, 3605, and 
3606 of this title may be enforced b}r civil actions in appro­
priate United States district courts without regard to the 
amount in controversy and in appropriate State or local 
courts of general jurisdiction. A civil action shall be com­
menced within one hundred and eighty days after the alleged 
discriminatory housing practice occurred : Provided, how­
ever, That the court shall continue such civil case brought 
pursuant to this section or section 3610(d) of this title from 
time to time before bringing it to trial if the court believes 
that the conciliation efforts of the Secretary or a State or 
local agency are likely to result in satisfactory settlement of 
the discriminatory housing practice complained of in the 
complaint made to the Secretary or to the local or State 
agency and which practice forms the basis for the action in 
court: And provided, however, That any sale, encumbrance, 
or rental consummated prior to the issuance of any court 
order issued under the authority of this Act, and involving 
a bona fide purchaser, encumbrancer, or tenant without 
actual notice of the existence of the filing of a complaint or 
civil action under the provisions of this Act shall not be 
affected.

Appointment of counsel and commencement of civil 
actions in Federal or State courts without

payment of fees, costs, or security
(b) Upon application by the plaintiff and in such circum­

stances as the court may deem just, a court of the United 
States in which a civil action under this section has been



20 Appendix
brought may appoint an attorney for the plaintiff and may 
authorize the commencement of a civil action upon proper 
showing without the payment of fees, costs, or security. 
A court of a State or subdivision thereof may do likewise 
to the extent not inconsistent with the law or procedures of 
the State or subdivision.

Injunctive relief and damages; limitation; 
court costs; attorney fees

(c) The court may grant as relief, as it deems appro­
priate, any permanent or temporary injunction, temporary 
restraining order, or other order, and may award to the 
plaintiff actual damages and not more than $1,000 punitive 
damages, together with court costs and reasonable attorney 
fees in the case of a prevailing plaintiff: Provided, That the 
said plaintiff in the opinion of the court is not financially 
able to assume said attorney’s fees.
Pub.L. 90-284, Title VIII, § 812, Apr. 11,1968, 82 Stat. 88.

§ 3613. Enforcement by the Attorney General; issues of 
general public importance; civil action; Federal 
jurisdiction; complaint; preventive relief

Whenever the Attorney General has reasonable cause to 
believe that any person or group of persons is engaged in a 
pattern or practice of resistance to the full enjoyment of 
any of the rights granted by this subchapter, or that any 
group of persons has been denied any of the rights granted 
by this subchapter and such denial raises an issue of general 
public importance, he may bring a civil action in any 
appropriate United States district court by filing with it a 
complaint setting forth the facts and requesting such pre­
ventive relief, including an application for a permanent or 
temporary injunction, restraining order, or other order 
against the person or persons responsible for such pattern



Appendix 21
or practice or denial of rights, as he deems necessary to 
insure the full enjoyment of the rights granted by this 
subchapter,
Pub.L. 90-284, Title VIII, § 813, Apr. 11,1968, 82 Stat. 88.

§ 3614. Expedition of proceedings
Any court in which a proceeding is instituted under sec­

tion 3612 or 3613 of this title shall assign the case for hear­
ing at the earliest practicable date and cause the case to be 
in every way expedited.
Pub.L. 90-284, Title VIII, § 814, Apr. 11,1968, 82 Stat. 88.

§ 3615. Effect on State laws
Nothing in this subchapter shall be construed to invalidate 

or limit any law of a State or political subdivision of a 
State, or of any other jurisdiction in which this subehaijter 
shall be effective, that grants, guarantees, or protects the 
same rights as are granted by this subchapter; but any law 
of a State, a political subdivision, or other such jurisdiction 
that purports to require or permit any action that would be 
a discriminatory housing practice under this subchapter 
shall to that extent be invalid.
Pub.L. 90-284, Title VIII, § 815, Apr. 11,1968, 82 Stat. 89.

§ 3616. Cooperation with State and local agencies adminis­
tering fair housing laws; utilization of services and 
personnel; reimbursement; written agreements; 
publication in Federal Register

The Secretary may cooperate with State and local agen­
cies charged with the administration of State and local fair 
housing laws and, with the consent of such agencies, utilize 
the services of such agencies and their employees and, not­
withstanding any other provision of law, may reimburse 
such agencies and their employees for services rendered 
to assist him in carrying out this subchapter. In furtherance



22 Appendix
of such cooperative efforts, the Secretary may enter into 
written agreements with such State or local agencies. All 
agreements and terminations thereof shall be published in 
the Federal Register.
Pub.L. 90-284, Title VIII, § 816, Apr. 11, 1968, 82 Stat. 89.

§ 3617. Interference, coercion, or intimidation; enforce­
ment by civil action

It shall be unlawful to coerce, intimidate, threaten, or in­
terfere with any person in the exercise or enjoyment of, 
or on account of his having exercised or enjoyed, or on 
account of his having aided or encouraged any other person 
in the exercise or enjoyment of, any right granted or pro­
tected by section 3603, 3604, 3605, or 3606 of this title. This 
section may be enforced by appropriate civil action. 
Pub.L. 90-284, Title VIII, § 817, Apr. 11, 1968, 82 Stat. 89.

§ 3618. Authorization of appropriations
There are hereby authorized to be appropriated such 

sums as are necessary to carry out the purposes of this sub­
chapter.
Pub.L. 90-284, Title VIII, § 818, Apr. 11, 1968, 82 Stat. 89.

§ 3619. Separability of provisions
If any provision of this subchapter or the application 

thereof to any person or circumstances is held invalid, the 
remainder of the subchapter and the application of the 
provision to other persons not similarly situated or to other 
circumstances shall not be affected thereby.
Pub.L. 90-284, Title VIII, § 819, Apr. 11, 1968, 82 Stat. 89.



Appendix 23
C2 CIVIL RIGHTS ACT OF 1866 

42 U.S.C. § 1982
§ 1982. Property rights of citizens

All citizens of the United States shall have the same right, 
in every State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold, and convey real 
and personal property.
R.S. § 1978.



24 Appendix
Appendix D

COMPLAINT FOR VIOLATION OF 
FAIR HOUSING LAWS 

BURBRIDGE, et al. vs. PARKMERCED 
CORPORATION, et al

NORTHERN DISTRICT OF CALIFORNIA 
No. C-71-378 [AJZ]

George H. Clyde, Jr.
Stephen V. Bomse 
Margaret D. Brown 
44 Montgomery Street, Suite 3000 
San Francisco, California 94104 
Telephone: 981-5000 
Attorneys for Plaintiffs

In the United States District Court 
for the Northern District of California

No. C-71-378 ( [AJZ]

Charles Burbridge, Ernestine Burbridge, 
Dolores Ellis, Glordean Brown and 
John Hensley, individually and on be­
half of all persons similarly situated,

Plaintiffs,
vs.

Parkmerced Corporation, a California 
corporation, and Metropolitan Life In­
surance Company, a New York corpo­
ration,

Defendants.

COMPLAINT FOR VIOLATION OF 
FAIR HOUSING LAWS

FIRST CAUSE OF ACTION 
1. This First Cause of Action is maintained pursuant to 

§ 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612, to 
obtain redress and affirmative relief from discrimination in 
housing practices against plaintiffs and all other persons



Appendix 25
similarly situated on the basis of race, color, and/or na­
tional origin.

2. Representative plaintiffs Charles Burbridge, Ernes­
tine Burbridge, Dolores Ellis, Glordean Brown and John 
Hensley are Negro citizens of the United States, and resi­
dents of the Northern District of California.

3. Each of the persons named as a plaintiff herein has 
applied for or attempted to apply for and been refused an 
apartment at Parkmerced because of his or her race, color, 
religion, and/or national origin, and as a result of the dis­
criminatory policies and practices of defendants herein­
after described. Plaintiffs Burbridge applied or attempted 
to apply for an apartment within 180 days of the filing of 
this Complaint. Plaintiffs Ellis and Brown applied or at­
tempted to apply for an apartment prior to said 180-day 
period (to wit in or about September, 1969, and August, 
1970, respectively) but said applications remained on file 
and said plaintiffs were ready, willing and able to accept 
an apartment at Parkmerced within the past 180 days. 
Plaintiff Hensley applied or attempted to apply for an 
apartment at Parkmerced in or about April, 1968, and re­
mained ready, willing and able at all times from said date 
to and including December, 1968, to accept an apartment 
at Parkmerced but was prevented from obtaining such an 
apartment by the discriminatory practices hereinafter de­
scribed, which practices have continued without substantial 
change to and including the date of filing this Complaint. 
At the time each plaintiff attempted to make an application 
for an apartment at Parkmerced he was a bona fide poten­
tial applicant for such apartment and was interested in 
residing at Parkmerced.

4. The plaintiffs named herein are representatives of a 
class, as defined by Rule 23(a) of the Federal Rules of 
Civil Procedure, and bring this action on behalf of the



entire class, pursuant to said rule. The class consists of all 
members of minority racial and ethnic groups, including 
non-whites and persons of Spanish surname, against whom 
defendants have discriminated, as hereinafter alleged, and 
includes members of said groups who have applied for 
apartments at Parkmerced, who have attempted to apply 
for such apartments, and who have been discouraged from 
applying for such apartments. The members of the class 
are hereinafter referred to as “plaintiff class.” The class is 
so numerous that joinder of all members is impracticable. 
There are questions of law and fact common to the class. 
The claims of the representative parties are typical of the 
claims of the class, and the representatives will fairly and 
adequately protect the interests of the class. Adjudication 
of the claims of the representative parties would as a prac­
tical matter be dispositive of the interests of other mem­
bers of the class who are not parties to the adjudication 
and the defendants herein have acted or refused to act on 
grounds generally applicable to the class, thereby making 
declaratory, injunctive or other affirmative relief appropri­
ate to the class as a whole.

5. Defendant Parkmerced Corporation is a California 
corporation with its principal place of business in the City 
and County of San Francisco, California, at Parkmerced. 
Parkmerced Corporation maintains offices and transacts 
business within the Northern District of California.

6. Defendant Metropolitan Life Insurance Company 
(“Metropolitan” ) is a New York corporation with its prin­
cipal place of business in New York, New York. Metropoli­
tan maintains offices and transacts business, among other 
places, within the Northern District of California.

7. At all times herein mentioned until December 21, 
1970, Metropolitan was the owner of and operated a planned 
residential community located in San Francisco, California,

26 Appendix



known as Parkmerced. The Parkmereed community con­
sists of numerous high-rise apartment buildings and gar­
den-apartment complexes, which were constructed by Met­
ropolitan in the 1940’s and the early 1950’s. Parkmerced 
contains approximately 3,500 residential units and provides 
moderate rental housing for approximately 8,000 people.

8. On or about December 18, and December 21, 1970, 
defendants Metropolitan and Parkmerced Corporation en­
tered into and consummated various transactions relating 
to the Parkmerced property including the following:

(a) Metropolitan leased the underlying real property at 
Parkmerced to Parkmerced Corporation for a thirty-year 
period, with options to renew said lease for three addi­
tional periods of fifteen years each. Said lease provides for 
rental payable to Metropolitan calculated, under some cir­
cumstances, on the basis of revenue from the operations at 
Parkmerced. No option to purchase said underlying real 
property was granted to Parkmereed Corporation.

(b) Parkmerced Corporation purchased all of the build­
ing improvements and personal property at Parkmerced. 
Payment therefor is to be made in installments, secured 
by a deed of trust, a security interest in personal property, 
and an assignment of rents in favor of Metropolitan.

(c) Metropolitan and Parkmereed Corporation made cer­
tain further agreements contemplating concerted future 
action by them with respect to the operation and ownership 
of Parkmerced.

9. Since December 21, 1970, Parkmerced Corporation 
has operated Parkmerced without substantial change in 
the business operations or policies at said development. All 
or virtually all of the Parkmerced rental office employees 
of Metropolitan have been retained by Parkmerced Cor­
poration, and plaintiffs are informed and believe that Park-

Appendix 27



merced Corporation presently intends to make no substan­
tial change in the operation or policies of Parkmerced.

10. During the negotiations preceding the transactions 
described in the paragraph 8 above, the principals, officers, 
directors, agents, and attorneys of Parkmerced Corporation 
had knowledge of the allegations of racial discrimination 
contained hereby by virtue of their familiarity with the 
case of Trafficante, et al., v. Metropolitan Life Insurance 
Company, (No. C-70-1754 [BHS]) filed in the United States 
District Court for the Northern District of California on 
August 18, 1970, and by virtue of correspondence directed 
to Harry H. Helmsley and Helmsley-Spear, Inc., principals 
of Parkmerced Corporation.

11. During the past 180 days defendants, and each of 
them, acting individually and in combination and concert 
with each other, have systematically discriminated against 
members of minority racial and ethnic groups, in connec­
tion with the offer and rental of dwellings at Parkmerced. 
As of the date hereof, plaintiffs are informed and believe 
that members of minority racial and ethnic groups com­
prise less than 1% of the population of Parkmerced. Said 
discrimination is continuing as of the date hereof and will 
continue hereafter unless restrained by this Court, as here­
inafter prayed.

12. In particularization of the foregoing, and not in 
limitation thereof, defendants, and each of them, acting 
individually and in combination and concert with each 
other, have discriminated and will continue to discriminate 
against plaintiffs and all other persons similarly situated 
in the following ways and manners:

(a) by refusing to rent a dwelling after a prospective 
tenant has made a bona fide offer, by refusing to negotiate 
with prospective tenants for the rental of, and by otherwise 
making unavailable or denying dwellings to prospective

28 Appendix



Appendix 29
tenants, because of race, color, or national origin of said 
prospective tenants;

(b) by discriminating against persons in the terms, con­
ditions and privileges of rental of dwellings, and in the 
provision of services or facilities in connection therewith, 
because of race, color, or national origin of such persons; 
and

(c) by representing to persons because of the race, color, 
or national origin of such persons that dwellings are not 
available for inspection or rental when such dwellings are 
in fact so available.

13. In maintaining and furthering their respective prac­
tices and policies of discrimination against the named 
plaintiffs and members of the plaintiff class, defendants, 
and each of them, acting individually and in combination 
and concert with each other, have done or caused to be 
done the following acts, among others:

(a) Defendants have persuaded minority group members 
who are potential and qualified applicants for rental of 
dwellings at Parkmerced that they are not welcome at 
Parkmerced, that applications by them for rental of dwell­
ings at Parkmerced will be denied or never acted upon, 
and that both residents, management and employees will 
create a hostile atmosphere for such applicants if admitted 
as tenants at Parkmerced;

(b) Defendants have discouraged minority-group mem­
bers who are potential and qualified applicants for the 
rental of dwellings at Parkmerced from making applica­
tion by making misrepresentations (through direct state­
ments, omissions, and half-truths) concerning the existence 
and availability of apartments at Parkmerced, the rental 
rates, the terms and conditions of rental, the qualifications 
required of applicants, the waiting list procedures, and the 
length of time required before apartments will become



30 Appendix
available. Defendants have farther discouraged minority- 
group members who are potential and qualified applicants 
by making rnde remarks and insinuations, and by otherwise 
failing to treat minority-group applicants courteously;

(c) Defendants have failed and refused to permit or 
accept applications to Parkmerced from minority-group 
persons while accepting such applications from Caucasians.

(d) Defendants have discriminated against minority- 
group applicants in the method of processing applications 
for rental of dwellings at Parkmerced by applying different 
practices and procedures to minority-group applicants than 
are applied to Caucasians;

(e) Defendants have manipulated the “waiting list” for 
dwellings within Parkmerced by giving preference to cer­
tain persons and classes of persons, and by delaying action 
upon the applications of other persons or classes of per­
sons, in such a manner as to discriminate against minority- 
group applicants;

(f) Defendants have set and maintained standards for 
acceptance to Parkmerced which effectively discriminate 
against minority applicants, and have applied such stand­
ards in an unequal and discriminatory manner so as to 
prevent the rental of dwellings by minority groups within 
Parkmerced;

(g) Defendants have discriminated against minority- 
group members in the terms and conditions of rental at 
Parkmerced, and in particular, Parkmerced Corporation 
has adopted a dual-rent structure whereby new tenants are 
required to pay substantially higher rental than present 
tenants whose leases have terminated;

(h) Defendants have systematically attempted to dis­
courage minority applicants from continuing their applica­
tions by various means, such as by offering them apart-



Appendix 31
ments which are substantially more expensive and less de­
sirable than those actually applied fo r ;

(i) Defendants have adopted policies of giving prefer­
ential treatment to certain organizations the members of 
which are virtually all Caucasian, but have failed and re­
fused to give such preferential treatment to members of 
similar organizations, many of whose members are of mi­
nority groups;

(j) Defendants have adopted policies of giving prefer­
ential treatment to certain organizations but have failed to 
give such preference to minority-group members of such 
organizations.

(k) Defendants have adopted policies in connection with 
application for apartments, rentals, and transfers at Park- 
mereed which are racially neutral on their face, but which 
have the effect of discriminating against members of mi­
nority groups, and which are not justified by any business 
necessity.

14. Each of the practices, policies and acts above al­
leged has occurred within 180 days from the date hereof 
and has also occurred for many years prior thereto.

15. The discriminations against individual plaintiffs 
and the plaintiff class alleged herein constitute continuing 
violations, which have occurred throughout the periods 
when individual plaintiffs were willing and able to rent 
apartments at Parkmerced on the same terms and condi­
tions as are or were made available to Caucasians. Said 
violations are occurring as of the date hereof, and will con­
tinue to occurr unless defendants are restrained by Order 
of this Court.

16. As a direct and proximate result of the unlawful 
policies, practices and acts above alleged, plaintiffs and 
the represented class have been injured in each of the fol­
lowing ways and manners, among others:



32 Appendix
(a) by being deprived of the right to reside at Park- 

merced and being forced to reside at other locations where 
they have been compelled to pay greater rent or to accept 
inferior apartments in less desirable neighborhoods with 
poorer facilities and services;

(b) by suffering embarrassment, humiliation, and emo­
tional distress.

SECOND CAUSE OF ACTION
17. This Second Cause of Action is maintained under 

42 U.S.C. § 1982, which provides:
“ All citizens of the United States shall have the same 

right, in every State and Territory, as is enjoyed by 
white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property.”

18. Plaintiffs hereby incorporate by reference as if set 
out fully herein paragraphs 2 through 16, inclusive, of their 
First Cause of Action.

19. By reason of the foregoing acts of discrimination 
which have occurred and which will continue to occur unless 
restrained by appropriate Order of this Court, plaintiffs 
and members of the class have been and will continue to be 
deprived of their rights to lease property within Park- 
merced on terms and conditions co-equal with those offered 
to and enjoyed by white citizens.

DAMAGES AND EQUITABLE RELIEF
20. Plaintiffs are informed and believe and thereon 

allege that apartments at Parkmerced have been rented 
for less than the fair market value for comparable rental 
units in the City and County of San Francisco. Plaintiffs 
are further informed and believe and thereon allege that 
the difference between the rates charged for apartments



Appendix 33
at Parkmerced and the prevailing rate for comparable 
rental units in the City and County of San Francisco is 
at least $50 per month.

21. Except for the discriminatory policies, practices 
and acts of defendants as above alleged, at least 1,000 
apartments at Parkmerced would have been rented to plain­
tiffs and/or members of the class herein at all times rela- 
vant under 42 U.S.C. § 3612 and 42 U.S.C. § 1982, and 
plaintiffs and the represented class have therefore been 
damaged by being compelled to pay excessive rents.

22. In addition to the foregoing damages which have 
been incurred by the class of persons represented herein, 
plaintiffs are informed and believe and thereon allege 
that defendants have knowingly, willfully, and maliciously 
deprived plaintiffs and the class of rights provided to them 
under Title VIII of the 1968 Civil Eights Act and 42 
U.S.C. § 1982. This is therefore a proper case for the award 
of punitive and exemplary damages against defendants, 
and plaintiffs pray for such damages in the amount of 
$1,000 for each plaintiff and class member herein for such 
other sum as may be deemed proper and just in the circum­
stances, but not less than $1,000,000. Said damages should 
be awarded to plaintiffs and to the class and should be 
applied in the form of rent subsidies and/or economic in­
centives for the benefit of members of the class in connec­
tion with an appropriate plan of affirmative action as here­
inafter prayed.

23. Plaintiffs further pray that this Court enter its 
Order enjoining and restraining defendants and each of 
them from discriminating against plaintiffs and/or the 
class in the offer or rental of dwellings at Parkmerced 
and requiring said defendants, and each of them, to take 
all affirmative action which is necessary to correct the 
effects of prior discrimination.



Wherefore plaintiffs pray judgment, as follows:
1. That the Court enter its Order declaring that these 

proceedings are, and may be maintained as, a class action;
2. That the Court find, adjudge and decree that defend­

ants, and each of them, have discriminated against plain­
tiffs and members of the class on the basis of their race, 
religion and/or national origin in connection with the offer 
or rental of apartments at Parkmerced;

3. That the Court award plaintiffs and members of the 
class compensatory damages according to their proof at 
trial and punitive damages as may be just and proper;

4. That the Court order defendants to offer to plaintiffs 
and other members of the class dwellings on the same terms 
and conditions as dwellings were offered to white persons 
at the time of discrimination by defendants against plain­
tiffs and members of the class;

5. That the Court enjoin defendants from discriminating 
against plaintiffs and members of the class in connection 
with the offer or rental of dwellings at Parkmerced and 
require defendants to take all action necessary to correct 
the effects of prior discrimination;

6. That plaintiffs be awarded their costs of suit and a 
reasonable attorneys fee, as provided by law; and

7. For such other and further relief as to this Court 
may appear proper.

Dated February 25,1971.

34 Appendix

George H. Clyde, Jr. 
Stephen V. Bomse 

Margaret D. Brown