Trafficante v. Metropolitan Life Insurance Company Brief of Respondent

    In die Supreme Court of the 
United States

O ctober T e r m , 1971

No. 71-708

P a u l  J. T raffica n te , D oroth y  M. C arr, C om m ittee  
of P arkm erced  R esidents C om m itted  to O pen  
O ccu pan cy , ail u n in co rp o ra te d  a sso 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 bree ,
At,be r t  J am es H e ic k , and  J aq u elin e  T c h a k a lia n ,

Petitioners,
vs.

M etropolitan  L ife  I n su rance  C o m p a n y , a New York 
Corporation, and P arkm erced  C orporation , 

a California Corporation,
Respondents.

On W rit  of Certiorari to t h e  U nited  S tates C ourt 
of A ppeals  for t h e  N in t h  C ircu it

Brief of Respondent 
Metropolitan Life Insurance Company

R ichard  J. K ilm a r tin  
K n ig h t , B oland & R iordan

465 California Street 
San Francisco CA. 94104 
Telephone: (415) 362-0684

Attorneys for 
Respondent 
Metropolitan Life 
Insurance Company

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 6  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 1 0 5



SUBJECT INDEX

Opinions B elow .................................................................  1

Jurisdiction ........................................................................... 1

Questions Presented .....................................    2

Statutes Involved .......................................    2

Statement ...........................................................................  2

Summary of Argument........ ................................ -.........  5

Argument ................ ..................- ......... -............................  6

I Tenants Who Have Not Been the Direct Vic­
tims of Any Act Proscribed by the Relevant 
Statutes Lack Standing to Challenge Alleged 
Acts of Discrimination by Their Landlord 
Against Others ....................................................  6
A. The Concept of Standing in This Case..... 6
B. The Injuries Alleged and the Interests 

Asserted Are Not Within the Zone of In­
terests Protected by the Fair Housing Act 9

C. Petitioners Lack Standing Under 42 U.S.C.
§ 1982 .............................................................. 15

D. Petitioner Committee of Parkmerced Resi­
dents Committed to Open Occupancy Has 
Not Alleged Any Injury to Itse lf..............  16

E. The Cases Relied Upon by Petitioners Do
Not Support Their Claims to Standing..... 18

F. Administrative Interpretation of Title
VIII .................................................................. 20

G. There Is No Need to Grant Third Parties 
Standing to Implement National Policy .... 21

Page



IX Subject Index

Page

II Jurisdiction ................   24
A. The Federal Court Does Not Have Subject

Matter Jurisdiction Over the Claims As­
serted Under the Fair Housing A c t ........... 24
1. Claims Under § 3610 .............................. 24
2. Claims Under § 3612 .............................  28

B. Under the Circumstances of This Case the 
Federal Court Should Abstain from Exer­
cising Jurisdiction of the Claims Under
§ 1982 ......................................................    30

III The Case Is Moot as to Metropolitan..............  31

Conclusion ...........................................................................  33

Appendices



TABLE OF AUTHORITIES CITED 

Cases
Pages

Adiekes v. Kress & Co., 398 U.S. 144 (1970) .............. 18,19
Alameda Conservation Association, et al. v. State of 

California, et al., 437 F.2d 1087 (Ca. 9) cert. den.
402 U.S. 928 ........................................ -........................  32

Alejandrino v. Quezon, 271 U.S. 528 (1926) ..............  32
Association of Data Processing Service Organiza­

tions, Inc. v. Camp, 397 U.S. 150 (1970) .................. 6, 7, 8

Bailey v. Patterson, 369 U.S. 31 (1962) ......................18,19
Baker v. Carr, 369 U.S. 186 (1962) ...............................  22
Barlow v. Collins, 397 U.S. 159 (1970).......................... 7
Barrows v. Jackson, 346 U.S. 249 (1953) .............. 18,19, 21
Brown v. Balias, 331 F.Supp. 1033 (D.C. Tex. 1971) ....12, 23 
Brown v. Lo Duca, 307 F.Supp. 102.............................  30

Carr v. Conoco Plastics, Inc., 423 F.2d 57 (CA 5,
1970) ...............................   19

Carter v. Greene County, 396 U.S. 320 (1970) ........... 18
Colon v. Tompkins Square Neighbors, Inc., 289 F.

Supp. 104 (S.D. N.Y.) ...........................................27,29,30

Flast v. Cohen, 392 U.S. 83 (1968) ..........................7, 8, 9, 22

Golden v. Zwickler, 394 U.S. 103 (1969) ......................  32
Griffin v. Breckenridge, 403 U.S. 8 8 ...............................  16

Hackett v. McGuire Bros., Inc., 445 F.2d 442 (C.A. 3
1971) ............................................................................. 19

Hunter v. Erickson, 393 U.S. 385 (1969) ......................  30
Hurd v. Hodge, 334 U.S. 24 (1947) .............................  16

Johnson v. Decker, 333 F.Supp. 88 (D.C. Ca.) ...........29,30
Jones v. Mayer Co., 392 U.S. 409 (1968) .......15,16, 24, 30

Kennedy Park Homes Association, Inc. v. City of 
Lackawanna, 318 F.Supp. 669 (1970) aff’d 436 F.2d 
108 (C.A. 2 1970) ................................................... . 19



IV Table op A uthorities Cited

Pages

Lee v. Nyquist, 318 F.Supp. 710 (W.D. N.Y. 1970) 
ail’d 402 U.S. 935 (1971) ............................................. 20

Marable v. Alabama Mental Health Board, 297 F.
Supp. 291 (N.I). Ala. 1969) .................................... .....18,19

McKee & Co. v. First National Bank of San Diego,
397 F.2d 248 (Ca 9) ............ .......................................  32

Miller v. Amusement Enterprises, Inc., 426 F.2d 534 
(C.A. 5 1970) ............................... ................. .............. 19

N.A.A.C.P. v. Button, 371 U.S. 415 ..............................  18
Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968) ............................. .....................................  19

Office of Communication of United Church of Christ 
v. FCC, 359 F.2d 994 (C.A. D.C. 1966)................ . 19

Powell v. McCormack, 395 U.S. 486 (1969)..................  32

Reitman v. Mulkey, 387 U.S. 369 ...................................  26

Scenic Hudson Preservation Conference v. FPC, 354
F.2d 608 (C.A. 2 1965) ................................................  19

Shannon v. HUD, 436 F.2d 809 (C.A. 3 1970) ..............  19
Shelley v. Kraemer, 334 U.S. 1 (1947) ................. ......  19
Sierra Club v. Morton, 92 S.Ct. 1361 (1972) ....... 7, 8,14,17

18,19, 22
Skidmore v. Swift, 323 U.S. 134 (1944) ........................ 20
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ..18,1.9

Textile Workers Union v. Lincoln Mills, 353 U.S. 448 
(1957) .................................................. ........................  32

United States of America v. Alaska Steamship Com­
pany, 253 U.S. 113 (1920) .........................................  31

United States of America v. W. T. Grant Company,
345 U.S. 629 (1953) .................................................... 31, 32



Table of A uthorities Cited v

Pages
United States v. Concentrated Phosphate Export 

Association, Inc., 393 U.S. 199 (1968) ......................  31

Yargas v. Hampson, 57 C.2d 479; 20 Cal. Rptr. 618;
370 P.2d 322 ................................................................. 26

Walker v. Pointer, 304 F.Snpp. 56 (W.D. Tex. 1969) .. 18

S tatutes
28 U.S.C. § 1254(1) ........................................................  1
42 U.S.C.:

§ 1982 ...............................................2, 3, 4, 5, 6,15,16, 21, 30
§ 3601 .................................................................. ..........24, 25
§ 3601 et seq..................................................................  2
§ 3604(a), (b) and (d) ................................................. 11

§§ 3604, 3605, 3606 ........................................................  25
§3608, 3611 .................................................................. 11
§ 3610 ...................... .......................................................24, 25
§ 3610(a) ....................................................................... 11,25
§ 3610(d) ................................... 2, 6,11, 25, 26, 27, 28, 29, 30
§ 3610 and 3612 .........................................3, 4,11,12, 28, 30
§ 3612 ................................................................. 11,12, 25, 28
§ 3613........     11

California Civil Code, §§51 and 5 2 .............................  2, 26
California Health and Safety Code:

§ 35700, et seq................................
§ 35720 ...........................................
§ 35731 ...........................................
§ 35732 ..........................................
§ 35734 ...........................................
§ 35738 ...........................................

§§ 35730 and 35738 ........................
§§ 35734, 35738 ...............................

Government Code § 11523 ..............
Labor Code § 1428 ..........................

6, 25 
25 

.25, 26 
25 
25
25
26
25
26 
26



O th ers  Page
82 Harvard Law Review 834 .........................................  28
114 Cong. Rec.:

4987 ...................................................    27
5514 ...............................................................................  12
5515 ...................................................................    13
9560 .................................   14
9600 .........       13
9612 .........................................................................   29

vi Table of A uthorities Cited



In the Supreme Court of the 
United States

O ctober T e r m , 1971

No. 71-708

P a u l  J. T raffican te , D orothy  M. Carr, Com m ittee  
of P arkm erced  R esidents C om m itted  to O pen  
O ccu pan cy , an u n in corp ora ted  a sso c ia t io n ; T he  
R everend A rt h u r  H . N ew berg , J am es E m bree , 
A t.bf.rt J am es  H eicik, and  J aqu elin e  T c h a k a lia n ,

Petitioners,
vs.

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

a California Corporation,
Respondents.

O n  W rit  of Certiorari to t h e  U nited  S tates C ourt 
of A ppeals for t h e  N in t h  C ircu it

Brief of Respondent 
Metropolitan Life Insurance Company

O PIN IO N S BELOW
Tlie opinion of the District Court for the Northern Dis­

trict of California (Appendix A hereto) dismissing the 
Complaint and Complaint in Intervention is reported at 322 
F.Supp. 352 (N.D. Cal. 1971). The opinion of the Court of 
Appeals for the Ninth Circuit (Appendix A of Petitioner’s 
Brief) affirming the Judgment of Dismissal is reported at 
446 F.2d 1158.

JURISDICTION
The Judgment of the Court of Appeals for the Ninth 

Circuit was entered on August 6, 1971. On September 13, 
1971, the Court of Appeals denied a timely petition for 
rehearing en banc. A copy of the Order is attached hereto 
as Appendix B. The jurisdiction of this Court is invoked 
under 28 U.S.C. § 1254(1).



QUESTIO N S PRESENTED
1. Do tenants of an apartment complex against whom 

no aet of discrimination has been practiced and none of 
whom have been deprived of the right to rent or lease real 
property have standing under the Fair Housing Act (Title 
VIII of the Civil Rights Act of 1968; P.L. 90-284, 42 U.S.C. 
§ 3601 et seq.) or 42 U.S.C. § 1982 to maintain an action 
against their former or present landlord for alleged acts 
of discrimination against others ?

2. Does the Federal conrt lack subject matter jurisdic­
tion of Petitioner’s claims under the Fair Housing Act by 
reason of 42 U.S.C. § 3610(d) ?

3. Is the case moot as to respondent Metropolitan Life 
Insurance Company (“ Metropolitan” ) by reason of its sale 
of Parkmereed?

STATUTES INVOLVED
The statutes involved are:

1. Title VIII (Fair Housing) of the Civil Rights Act 
of 1968 (P.L. 90-284; 42 U.S.C. § 3601 et seq.)

2. 42 U.S.C. § 1982.
3. California Health and Safety Code §§ 35700, 35720, 

35731, 35732, 35734, and 35748.
4. California Civil Code §§51 and 52.

These statutes are set forth in Appendix C hereto.

STATEMENT
This action arises under the Fair Housing Act (Title 

VIII of the Civil Rights Act of 1968) and 42 U.S.C. § 1982. 
Parkmerced is a 3500 unit garden and tower apartment 
complex located on approximately 150 acres in the south­
west portion of San Francisco. It is immediately contiguous 
to or near hundreds of privately owned single family 
residences, San Francisco State College, other unrelated

2



3
apartment complexes and several shopping areas. Com­
menced in the early 1940’s and completed in the early 
1950’s, it was entirely constructed with private capital by 
Metropolitan which owned and operated it until December 
21, 1970.1 On that date Metropolitan sold the buildings and 
leased the land for a period of 30 years, with three 15- 
year renewal options, to Parkmerced Corporation in a 
bona fide, arm’s-length business transaction. Metropolitan 
has no ownership interest whatever in Parkmerced Cor­
poration and from and after the date of sale was divested 
of all right to manage, control or otherwise operate the 
project including the rental of apartment units. It has had 
no employees engaged in Parkmerced’s operations since the 
sale (R. Ex. K).

At the time of the commencement of this action, each 
petitioner was a resident and tenant at Parkmerced.2 3 Since 
the Order attacked by petitioners is an Order dismissing 
the Complaint and Complaint in Intervention, the facts 
under review are the allegations of the complaints.® The 
Complaint contains three causes of action, the first and 
second being based upon §§ 3610 and 3612, respectively, of 
the Fair Housing Act, and the third upon 42 U.S.C. § 1982.

1. Parkmerced was one of seven projects built and financed by 
Metropolitan for the purpose of providing middle income housing 
in park-like setting’s in urban areas. The others were Parkchester 
in the Bronx; Riverton in Harlem; Stuyvesant Town and Peter 
Cooper Village in Mid-Manhattan; Park Fairfax in Alexandria; 
and Pa.rklabrea in Los Angeles.

2. Except the Committee of Parkmerced Residents Committed 
to Open Occupancy. The Committee is alleged to be an unincorpo­
rated association, all of the members of which are residents of Park­
merced. The number or identity of members of the Committee is 
not disclosed by the record. Since the commencement of the action, 
all of the individual plaintiffs in intervention have moved from 
Parkmerced, and petitioner Carr has publicly announced her inten­
tion to do so.

3. The Affidavit of Alvin F. Poussaint (R. Ex. I) is not part 
of the complaints. It was filed in the District Court by petitioners 
in opposition to Respondents’ Motions to Dismiss.



4
Each cause of action alleges that petitioner Trafficante is a 
Caucasian and petitioner Carr a Negro; that both are ten­
ants of and reside at Parkmerced; upon information and 
belief only, that Metropolitan has “ for many years” prior 
to the filing of the complaint discriminated against minority 
groups in rental practices; and that prior to the commence­
ment of the action the petitioners filed complaints with the 
Secretary of Housing and Urban Development (“H.U.D.” ), 
pursuant to the provisions of 42 U.S.C. § 3610, which were 
not resolved. The Complaint in Intervention is virtually 
identical to the causes of action of the Complaint based 
upon 42 U.S.C. § 3612 and 42 U.S.C. § 1982. All petitioners 
assert that by reason of the alleged discrimination they have 
been deprived of certain social, business and professional 
benefits.

Neither the Complaint nor the Complaint in Intervention 
contain any allegation that the petitioners, or any of them, 
have themselves been deprived of housing or any right 
guaranteed them by the Fair Housing Act or 42 U.S.C. 
§ 1982. The complaints are also devoid of any allega­
tion that respondents have denied or interferred with the 
free access to Parkmerced of any person seeking business 
or social contact with plaintiffs; or interfered with plain­
tiffs’ business or social activities with any person; or cur­
tailed any service to plaintiffs because of their activities, 
guests, or business invitees; or otherwise interferred with 
plaintiffs’ right of free inter-racial association.

Upon motion of Respondents4 the District Court, on 
February 10, 1971, dismissed the action upon the ground 
that petitioners were not persons aggrieved under the rele­
vant statutes and were without standing to maintain the 
action.

4. Immediately after the sale of Parkmerced the purchaser, 
Parkmerced Corporation, was joined as a defendant in the action.



On February 25, 1971, petitioners’ attorneys filed a Com­
plaint entitled Charles Burbridge (et al.) vs. Parkmerced 
Corporation and Metropolitan Life Insurance Company 
(U.S.D.C. N.D. California No. 71 378), a copy of which is 
Appendix 1) hereto. That case is now pending. The defend­
ants have answered, and discovery procedures are being 
pursued. The plaintiffs, all Negroes, allege that they are 
the direct victims of discriminatory housing practices which 
resulted in their exclusion from Parkmerced and according­
ly their standing to maintain the action has not been chal­
lenged. Reference to Burbridge will be made further in 
this brief.®

The Court of Appeals for the Ninth Circuit unanimously 
affirmed the District Court noting, as had the District 
Court, that the plaintiffs had not alleged, “nor can they 
that they themselves have been denied any of the rights 
granted by Title VIII or by 42 U.S.C. § 1982 to purchase or 
rent real property.” Both Courts held squarely that the 
“ interests” and “ injuries” alleged in the Complaint were 
not the interests and injuries contemplated by the Fair 
Housing Act or § 1982 and concluded that petitioners were 
without standing to maintain the action. Neither Court 
reached the jurisdictional or mootness question.

SUMMARY OF ARGUMENT

Respondents contend that the purpose of the Fair Hous­
ing Act was to make housing available to all persons without 
discrimination based on race, color, religion or national 
origin. To effect that policy and purpose, Congress specif- 
icallv defined acts which it declared to be unlawful and 
provided a comprehensive scheme of remedies to any person 
who had been denied housing in violation of the Act. 5

5

5. Infra p. 22



The Act does not contemplate this type of action or provide 
redress for the “ injuries” asserted. Petitioners are not the 
intended beneficiaries of the Act.

Similarly, petitioners are not within the class of persons 
afforded protection by 42 U.S.C. § 1982 since they6 7 have 
not been denied the right to lease property.

In addition to petitioners’ lack of standing, the Federal 
Court lacked subject matter jurisdiction of the claims 
predicated on the Fair Housing Act by virtue of 42 U.S.C. 
§ 3610(d) which prohibits federal jurisdiction if a State or 
local fair housing law provides substantially equivalent 
rights and remedies as the Fair Housing Act and contains 
a judicial remedy. California’s Rumford Act6 and Unruh 
Civil Rights Act7 provide such rights and remedies.

Finally, the case is moot as to respondent Metropolitan 
by reason of its sale of Parkmerced. Metropolitan no longer 
controls any aspect of the operation at Parkmerced and it 
would be idle for a court to enter an injunction against 
it. The damage claims asserted do not save the case from 
the doctrine of mootness because they are not cognizable 
under the statutes involved.

ARGUM ENT
I

TENANTS W H O  HAVE NOT BEEN THE DIRECT VICTIMS OF ANY 
ACT PROSCRIBED BY THE RELEVANT STATUTES LACK 
STANDING TO CHALLENGE ALLEGED ACTS OF DISCRIM­
INATION BY THEIR LANDLORD AGAINST OTHERS

A. The Concept of Standing in this Case.
The cases involving the issue of standing are legion, hut 

the final formula for standing in this case may be extracted 
from Association of Data Processing Service Organizations,

6. Cal. Health & Safety Code §35700, et seq.
7. Cal. Civ. Code §51, et seq.

6



Inc. v. Cam.p, 397 U.S. 150 (1970); Barlow v. Collins, 397 
U.S. 159 (1970); Sierra Club v. Morton, 92 S.Ct. 1361 
(1972); and Flast v. Cohen, 392 U.S. 83 (1968). In Data 
Processing and Barlow this Court granted standing to 
obtain judicial review of governmental agency action where 
the petitioners themselves had suffered direct economic 
injury and were clearly persons aggrieved within the mean­
ing of the Administrative Procedure Act. In Data Process­
ing it was held (pp. 151,153) :

“ Generalizations about standing to sue are largely 
worthless as such. One generalization is, however, 
necessary and that is that the question of standing in 
the federal courts is to be considered in the framework 
of Article III which restricts judicial power to ‘eases’ 
and ‘controversies.’

# * * # #
“ * # * [The question of standing] concerns, apart 
from the ‘case’ or ‘controversy’ test, the question 
whether the interest sought to be protected by the 
complainant is arguably within the zone of interests 
to be protected or regulated by the statute or consti­
tutional guarantee in question. Thus the Administra­
tive Procedure Act grants standing to a person ‘ag­
grieved by agency action within the meaning of a 
relevant statute.’ ”

and (p. 154):
“ Apart from Article III jurisdictional questions, 

problems of standing, as resolved by this Court, have 
involved a ‘rule of self-restraint for its own govern­
ance.’ Barrows v. Jackson, 346 US 249. Congress can, 
of course, resolve the question one way or another, 
save as the requirements of Article III dictate other­
wise. Muskrat v. United States, 219 US 346.”

Subsequently, in Sierra Club this Court affirmed that the 
“ injury in fact” element necessary to satisfy Article III 
requirements for standing could be of a noneconomic na-

7



8
tore provided toe party seeking review had himself suffered 
an injury to a “ cognizable interest” (p. 1366) and had a 
“direct stake in toe outcome” (p. 1369; emphasis added). 
The Court however denied standing to purely “ special 
interest” organizations which had not alleged cognizable 
injury to itself, and observed (p. 1368):

“ The requirement that a party seeking review must 
allege facts showing that he is himself adversely af­
fected does not * * * prevent any public 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 relevant stat­
ute to authorize judicial review at the behest of organi­
zations or individuals who seek to do no more than 
vindicate their own value preferences through toe 
judicial process.” (Emphasis added)

In Flast the Court had previously summarized (pp. 99,100): 
“ In other words, when standing is placed in issue in 
a case, the question is whether the person whose stand­
ing is challenged is a proper party to resquest an ad­
judication of a particular issue and not whether the 
issue itself is justiciable.”

Under those holdings it is not sufficient that petitioners 
advance merely any injury or interest but they must assert 
an injury which is “ cognizable” (Sierra Club at 1366) and 
“ arguably within the zone of interests to be protected or 
regulated by the statute” (Bata Processing at 153). Peti­
tioners satisfy neither requirement but respondent believes 
that in the context of this case the “ injury in fact” element 
necessary to satisfy Article III ‘case’ or ‘controversy’ 
requirements and the “ zone of interests” test are so in­
separably interwoven that an attempt to dissect and treat 
them separately or independently would be an exercise in



futility. Thus, if petitioners have not alleged an injury 
cognizable under the relevant statutes they are not within 
the zone of interests sought to be protected by the statutes. 
Conversely, if they are not within the zone of interests to 
be protected by the statutes they have not suffered a cog­
nizable injury.8

B. The Injuries Alleged and the Interests Asserted Are Not With­
in the Zone of Interests Protected by the Fair Housing Act.

The petitioners’ “ injuries” are alleged to be :
“ (a) plaintiffs are deprived of the social benefit of 

living within a community which is not artificially im­
balanced in a manner which excludes minority group 
members;

“ (b) plaintiffs suffer the loss of business and pro­
fessional advantages which accrue from contact and 
association with minority group members;

“ (e) plaintiffs are stigmatized within both the white 
and minority group communities as residents of a 
segregated ‘white ghetto’, causing such residents both 
embarassment and economic damage in social, business 
and professional activities.” (It. Ex. A at 5 and Ex. B 
at 5; Pet.App. C at 5.)

An examination of the Fair Housing Act is necessary to 
determine whether the injuries and interests asserted are 
within the purview of the statutes involved and whether, 
consequently, the petitioners have or lack standing. The Act 
itself defines the rights that it creates and protects, the 
injuries it prohibits, and persons aggrieved by its violation. 
In relevant parts it provides:

“ § 3610. (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 dis­

8. Compare this Court’s statement in Mast v. Cohen (p. 95) 
that: “ Thus, no justiciable controversy is presented when # * #
there is no standing to maintain the action. ’ ’

9



10
criminatory housing practice that is about to occur 
(hereafter ‘person aggrieved’) may file a complaint 
with the Secretary.

“ (d) * * * the person aggrieved may, within thirty 
days thereafter, commence a civil action in any appro­
priate United States district court, against the respond­
ent 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: * * *”

“ § 3602. As used in this title—
^

“ (f) ‘Discriminatory housing practice’ means an act 
that is unlawful under section 3604, * #

“ § 3604. As made applicable by section 3603 and 
except as exempted by sections 3603(b) and 3607, 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 therewith, because of race, color, religion, 
or national origin.

#  #  #  =K=

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

“ § 3612. (a) The rights granted by sections * * *
3604 * * * may be enforced by civil actions in appropri­
ate United States district courts without regard to the 
amount in controversy and in appropriate State or 
local courts of general jurisdiction.” (Emphasis added)

Read in context it is clear that petitioners are not and were 
not intended to be, persons aggrieved within the meaning



11

of § 3610(a). As tenants and residents of Parkmerced, none 
of the acts proscribed by § 3604(a), (b) and (d) have been 
practiced against them, nor have they been deprived of any 
of the rights specifically defined by § 3604 which could 
be the subject of enforcement action under § 3610(d) or 
§ 3612.® The rights granted by § 3604 which are enforceable 
under §§ 3610 and 3612 are not the rights asserted by peti­
tioners but the right to obtain housing free of discrimina­
tion. This personal right is directly enforceable only by 
the person to whom given.9 10 11 Many parts of the Fair Housing 
Act compel this conclusion. For example, a person claiming 
to have been injured by a discriminatory housing practice 
may file an administrative complaint with the Secretary 
(§ 3610(a)); the complaint must be filed within 180 days 
after the specific acts complained of occur (§ 3610(b)); the 
complaint filed with the Secretary must state the specific 
facts upon which it is based (§ 3610(b)) ;X1 an action under 
§ 3610(d) must be filed within thirty days after the Secre­
tary is unable to resolve the administrative complaint 
(§ 3610(d)); an action under §3612 must be filed within 
180 days of the occurrence of the alleged discriminatory 
housing practice or be barred (§ 3612(a)); and federal 
administrative assistance is available to persons aggrieved 
(§§ 3608, 3611). Many parts of the Act, including the specific 
and exact time limitations for seeking redress, become

9. While the language of § 3612 is arguably narrower than that 
of § 3610, respondent does not contend that different tests of stand­
ing'are applicable under the two sections. Rather, the precise word­
ing of § 3612 reinforces the conclusion that in providing enforce­
ment machinery Congress intended to provide remedies only for the 
direct victims of discriminatory housing practices.

10. In a broader sense the Pair Housing Act is enforceable by 
the Attorney General under § 3613.

11. Compare the complaint, the charging allegations of which 
are based upon information and belief only (R. Ex. A at 2, 3; Pet. 
Br. App. C at 2, 3) ; and Ex. A  and B to Complaint which state no 
facts whatever.



12

meaningless if third parties who have not been deprived 
of any of the rights created by the Act are allowed to main­
tain an action such as this. § 3610 does not provide for an 
award of damages (Brown v. Balias, 331 F.Supp. 1033 
(D.C. Tex. 1971) but its injunctive and affirmative action 
provisions are obviously designed only to obtain housing 
for persons who have been discriminated against. Similarly, 
the provisions of § 3612 authorizing an award of damages, 
costs and attorney’s fees clearly contemplate redress of an 
injury inflicted upon a person who has been wrongfully 
denied housing.

The congressional history of the Fair Housing Act is 
replete with indications that Congress intended actions 
under § 3610 and § 3612 only by the direct victims of a 
discriminatory act. In a discussion of costs and attorney’s 
fees in the Senate, Senator ITart stated pointedly:

“ Mr. President, I think it important to note that 
Section 212(b) and (c) as those provisions now stand 
do reveal a clear congressional intent to permit, and 
even encourage, litigation by those who cannot afford 
to redress specific wrongs aimed at them because of 
the color of their skin. Of course a court must judge 
what fees are appropriate, as well as what damages 
may apply, but this Section should not be read as 
permitting courts to deny costs solely at its discretion. 
We cannot prevent unwitting enforcement of this pro­
vision to shut the courthouse doors to those whose 
rights are violated simply because they lack the funds 
to protect those rights."12 (Emphasis added.)

Similarly, the following colloquy occurred in a discussion of 
§ 3612:

Senator Mondale:
“As I understand the intent of the amendment, as 

modified, offered by the Senator from Colorado [Mr.

12. 114 Cong. Bee. at 5514



Allott] it is this: when a person really wants to rent 
a particular leasehold or when he wants to buy a par­
ticular piece of property, he is clearly within the pro­
tection of this measure. But when the offer is in effect 
a phony one, when he has no intention, when it is not 
a good safe offer, because he is on a lark or whatever, 
when it is a contrived sort of situation with which he 
would never go through, he would not be protected.”

Senator Allott:
“I think that bona fide means a man has to be ready, 

willing and able to perform. Without these three ele­
ments it would not be a bona fide offer capable of 
enforcement if accepted.18

Speaking of the Act generally, Representative Corman 
observed:

“It would assure that anyone who answered an 
advertisement for housing not be turned away on the 
basis of his race.”13 14

On April 10,1968, the date the Act was passed in the House 
of Representatives, Representative Celler commented:

“ A person aggrieved files his complaint within 180 days 
after the alleged acts of discrimination. The Secretary 
of Housing and Urban Development would have 30 
days after filing of the complaint to investigate the 
matter and give notice to the person aggrieved whether 
he intended to resolve it. * * * If conciliation failed, or 
if the Secretary declined to resolve the charge or other­
wise did not act within the 30-day period, the aggrieved 
person would have 30 days in which to file a civil 
action in either a State or Federal court.

 ̂  ̂  ̂ ^
“ The bill further provides that any sale, encumbrance, 
or rental consummated prior to a court order issued

13

13. 114 Cong. Rec. at 5515.
14. 114 Cong. Rec. at 9600.



under this act and involving a bona fide purchaser, 
encumbrancer, or tenant, shall not be affected.”15

These statements are only a few from many expressed in 
varying contexts. The theme central to all discussions, how­
ever, was the dignity of man, his right to housing and 
equal treatment regardless of the color of his skin, and 
the guarantee of those rights to him. Nowhere did either 
the Senate or the House express any concern whatever for 
the enhancement of the business and social activities of 
any third persons, including tenants. The discussions fail 
to disclose any intent on the part of Congress to grant 
standing to sue to any but the direct victims of discrim­
inatory housing practices and the Attorney General.

Similarly, there is no indication whatever in either the 
Act itself or its congressional history that Congress in­
tended to require private landlords to enter into meaning­
less and inconclusive injunctive or damage litigation with 
any tenant who happened to disagree with the landlord’s 
business practices, procedures or social views, nor to sub­
ject private landlords to the possible harassment of a multi­
tude of lawsuits which would be binding upon no one. If 
upon a trial petitioners, who sue in their right alone, were 
denied the relief they seek, the judgment would not and 
could not be binding upon the next group of plaintiffs 
asserting a real or imagined grievance. On the other hand, 
if any measure of relief was granted by a court the extent 
of the judgment would not and could not be binding or 
conclusive upon persons not parties to the action. Hence, 
any third person16 being dissatisfied with the result could 
commence another action to attempt to implement his views 
or to “vindicate [his] own value preferences” (Sierra Club

15. 114 Cong. Ree. at 9560.
16. Parkmereed alone houses over 8000 persons (R. Ex. A  at 2).

14



at 1369). Further, the specter of a person obtaining housing 
through the administrative or judicial process followed 
immediately by a claim for damages against his new land­
lord for injuries allegedly being suffered as a result of 
living in a segregated community would be an exercise in 
circuity devoid of logic and contrary to the ennobling pur­
pose of the statutes. Such profound disorder could not only 
not have been contemplated by Congress but is totally 
unnecessary to achieve the purpose of the Act.17 The 
injuries and interests asserted are simply not those con­
templated by the Fair Housing Act. Petitioners are not 
therefore persons aggrieved within the meaning of the Act 
and their noneognizable injuries cannot be made the sub­
ject of an action for damages.

C. Petitioners Lack Standing Under 42 U.S.C. § 1982.
Petitioners’ lack of standing under § 1982 is patent. In 

concise terms that section 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.”

In interpreting the statute this Court, in Jones v. Mayer 
Co., 392 U.S. 409 (1968), stated (p. 420):

“We begin with the language of the statute itself. 
In plain and unambiguous terms, § 1982 grants to all 
citizens, without regard to race or color, ‘the same 
right’ to purchase and lease property ‘as is enjoyed by 
white citizens.’ ”

Petitioners do not and cannot fall within the purview of 
that statute. Obviously none has been denied the right to 
lease real property. Consequently, they have suffered no

15

17. Infra at 28.



“ injury in fact” at all, nor can their claims fall “ arguably 
within the zone of interests to be protected * * * by the 
statute.” The entire rationale of Jones v. Mayer Go. is 
inimical to the status petitioners represent and does not 
remotely purport to grant them standing. In fact, all of the 
implications of Jones are directly to the contrary. Quoting 
its earlier decision in Hurd v. Hodge, 334 TJ.S. 24 (1947), 
this Court stated (p. 419):

“Hurd v. Hodge, supra, squarely held, therefore, 
that a Negro citizen who is denied the opportunity to 
purchase the home he wants ‘ [sjolely because of [his] 
race and color,’ 334 U.S., at 34, has suffered the hind of 
injury that § 1982 was designed to prevent.” (Emphasis 
added.)

The entire thrust of Jones was the protection of the rights 
of Negroes to purchase or lease property. Indeed, the 
constitutionality of § 1982 was predicated upon its attempt, 
as authorized by the Thirteenth Amendment, to abolish 
a “badge of slavery” . The kind of injury that § 1982 was 
designed to prevent is simply not present in this case.18

16

D. Petitioner Committee of Porkmerced Residents Committed 
to Open Occupancy Has Not Alleged Any Injury to Itself.

What has been said heretofore applies with equal force 
to all petitioners. There is, however, an additional fatal 
defect in the complaint in intervention filed by the Com­
mittee of Parkmerced Residents Committed to Open Occu­
pancy (“ Committee” ).

18. The contention of the United States that to the extent peti­
tioner Carr claims to be a victim of tokenism her complaint is with­
in the terms of § 1982 (Brief of United States, n. 36 at 20 is 
neither suggested nor supported by Jones v. Mayer Go. or Griffin v. 
Breckenridge, 403 U.S. 88 in both of which the plaintiff was the 
direct victim of a specific offense. Further, the claim of “ tokenism” 
attributed to petitioner Carr does not appear in her complaint.



It is alleged that the Committee is “ an unincorporated 
association of Caucasian and Negro individuals who are 
residents of Parkmerced committed to correction of the 
racial imbalance presently existing at Parkmerced” (R. Ex. 
B at 2). But the only injuries allegedly suffered by the 
Committee are the same loss of social, business and pro­
fessional benefits alleged by the individual plaintiffs.19 In 
Sierra Club this Court held (p. 1366):

“ But the ‘injury in fact’ test requires more than an 
injury to a cognizable interest. It requires that the 
party seeking review be himself among the injured

17

and (p. 1368):
“But 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 
[relevant statute]. The Sierra Club is a large and long- 
established organization, with an historic commitment 
to the cause of protecting our Nation’s natural heritage 
from man’s depredations. But if a ‘special interest’ in 
this subject were enough to entitle the Sierra Club to 
commence this litigation, there would appear to be no 
objective basis upon which to disallow a suit by any 
other bona fide ‘special interest’ organization, how­
ever small or short-lived. And if any group with a 
bona fide ‘special interest’ could initiate such litigation, 
it is difficult to perceive why any individual citizen with 
the same bona fide special interest would not also be 
entitled to do so.”

The holding in Sierra Club was premised upon lack of an 
allegation of injury to the Sierra Club itself or an individ­
ualized injury to any of its members. The Committee in this

19. Supra at 13.



case thus appears to be a “ special interest” group formed 
for the sole purpose of correcting an alleged racial imbal­
ance at Parkmerced. As such, it has not and cannot have 
suffered the only “ injuries” which are alleged. Further, as 
in Sierra, there is no allegation whatever that the individual 
members of the Committee have suffered any “ injury in 
fact.”20

E. The Cases Relied Upon by Petitioners Do Mot Support Their 
Claims to Standing.

Since Congress has designated the persons entitled to file 
actions under the Fair Housing Act, it is unnecessary to 
consider a host of authorities in which standing or lack of 
standing was determined by nonstatutory standards or the 
phrase “person aggrieved” was not defined. Similarly, the 
clear lack of any cognizable injury to or interest in peti­
tioners makes it unnecessary to consider what injury or 
interest would qualify to grant standing under § 1982. But 
it should not go unsaid that the cases principally relied 
upon by petitioners do not grant or purport to grant 
standing to them. In each such case the plaintiff was 
clearly the person directly aggrieved and had a cognizable 
interest in the subject matter of the action.

Thus, in Sullivan v. Little Hunting Park, 396 U.S. 229
(1969) , Barrows v. Jackson, 346 U.S. 249 (1953), Carter v. 
Greene County, 396 U.S. 320 (1970), Bailey v. Patterson, 
369 U.S. 31 (1962), Aclickes v. Kress & Co., 398 U.S. 144
(1970) , Marable v. Alabama Mental Health Board, 297
F. Supp 291 (N.D. Ala. 1969) and Walker v. Pointer, 304 
F.Supp. 56 (W.D. Tex. 1969), the plaintiff was the person 
against whom an act of discrimination had been directly

20. The Committee’s status is unlike that of the petitioner in 
N.A.A.C.P. v. Button, 371 U.S. 415, wherein the Court granted 
standing to a corporation which had alleged direct injuries to itself, 
its purpose and its functions, as well as injury to its members.

18



practiced. In Sullivan the plaintiff himself had been expelled 
from a corporation because he had leased Ms residence to a 
Negro and accordingly was granted standing to maintain an 
action for damages to himself. In Barrows the defendant 
was accorded the right to assert the doctrine of Shelley v. 
Kraemer, 334 U.S. 1 (1947) on Ms own behalf as a defense 
to an action for damages against him. (The Court there 
reiterated the rule that one may not claim standing to 
vindicate the rights of another but held that the contem­
plated action of a State Court could result in a denial to 
the defendant of his own constitutional rights.) In Carter 
the plaintiffs had been unlawfully excluded from jury serv­
ice. The petitioners themselves in Bailey had been denied 
nonsegregated treatment, while in Adickes the plaintiff had 
been refused service in the defendant’s restaurant facili­
ties and had been arrested upon her departure from the 
defendant’s store. The plaintiffs in Marable were the direct 
victims of the practices complained of and in Walker were 
the persons actually evicted from rented property in viola­
tion of their own rights.

Similarly, in Newman v. Biggie Park Enterprises, Inc., 
390 U.S. 400 (1968), Miller v. Amusement Enterprises, Inc., 
426 F.2d 534 (C.A. 5 1970), Blackett v. McGuire Bros., Inc., 
445 F.2d 442 (C.A. 3 1971) and Carr v. Conoco Plastics, Inc., 
423 F.2d 57 (CA 5, 1970) the plaintiff was the person 
against whom an act of discrimination had been directly 
practiced and the action was authorized by a specific statute.

Finally, this case does not present any challenge to 
governmental administrative agency action as in Scenic 
Hudson Preservation Conference v. FPC, 354 F.2d 608 
(C.A. 2 1965), Shannon v. IIUD, 436 F.2d 809 (C.A. 3 1970), 
Kennedy Park Homes Association, Inc. v. City of Lacka­
wanna, 318 F.Supp. 669 (1970) aff’d 436 F.2d 108 (C.A. 2 
1970), Office of Communication of United Church of Christ

19



v. FCC, 359 F.2d 994 (C.A. D.C. 1966), and Lee v. Nyquist, 
318 F.Supp. 710 (W.D. N.Y. 1970), aff’d 402 U.S. 935 (1971). 
In each of those cases the plaintiff, who was the person 
directly aggrieved, was granted standing to challenge 
administrative action of a government agency in order to 
assure its regularity and compliance with the Constitution 
or pertinent statutes or regulations.

None of the eases cited by petitioners, including Civil 
Rights cases, grant standing to sue to any except the direct 
victims of the discriminatory practice complained of and 
they are not therefore germane to the issue of standing in 
this case.

F. Administrative Interpretation of Title VIII.
Respondent acknowledges that an administrative inter­

pretation of an Act by an agency charged with its enforce­
ment is entitled to consideration. The consideration, how­
ever, is subject to the limitation imposed by this Court in 
Skidmore v. Swift, 323 U.S. 134 (1944), that (p. 140):

“ 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 gave it power to 
persuade if lacking power to control.”

In this case, the “ determination” by an employee of 
H.U.D. that petitioners have standing (Pet. Br. at 21) 
is entitled to no weight at all. This gratuitous unarticu­
lated conclusion, which is directly contrary to that of 
the District Court and the Ninth Circuit Court of 
Appeals, made only in a letter to petitioners’ attorneys 
while the case ivas pending in District Court cannot even be 
deemed a semi-official declaration of the Department.

20



21

The desire of the Department of Justice for assistance, 
upon which its interpretation of the statutes appears pri­
marily based, is understandable, but denial of standing to 
petitioners will in no way detract from the assistance 
legitimately available to it. Respondent asks only that any 
action filed against it be brought and prosecuted by a 
proper plaintiff with a cognizable grievance in a proceed­
ing that will terminate on a final and conclusive note. 
Neither the need for assistance nor the size of the Depart­
ment’s Civil Rights staff can confer or create standing 
where none exists. The “ private Attorney General” con­
cept will not be undermined in the slightest degree by a 
denial of standing to these petitioners.

G. There Is No Need to Grant Third Parties Standing to Imple­
ment National Policy.

Citing Barrows v. Jackson, 346 U.S. 249, 259 (1953), 
petitioners and amici curiae contend that somehow ten­
ants may be the only or most effective adversaries to 
challenge discriminatory practices of a landlord. This con­
tention is somewhat of an indulgence in naivete for it is 
well known that suits such as this are backed by persons 
or groups active in the movements they represent. If indeed 
any discriminatory housing practices have occurred on the 
scale asserted, or on any scale, it imposes no undue burden 
or hardship whatever to prosecute the action in the name 
or names of the victims of the discrimination. Unlike this 
case, the issues in such an action would be real, live and 
subject to rebuttal or settlement. The exact contrary is 
true when the action is brought by third persons who have 
not been the victims of an unlawful act. Thus, there is 
no way to resolve the dispute by providing housing to the 
person offended, the primary objective and purpose of the 
Fair Housing Act and § 1982. Instead, the action would 
inevitably devolve into one of “ value preferences” (ef.



Sierra Club v. Morton at 1369) in which the plaintiff tenant 
would attempt to substitute his judgment for that of his 
landlord.

The ready availability of 'proper plaintiffs was demon­
strated by occurrences related to this case. On February 25, 
1971—fifteen days after the District Court dismissed this 
action—petitioners’ counsel commenced an action entitled 
“ Burbridge v. Parkmerced Corporation and Metropolitan 
Life Insurance Company.” A copy of the complaint in that 
action is Appendix D hereto. The plaintiffs there, all 
Negroes, allege that they have been the direct victims of 
discriminatory housing practices which resulted in their 
exclusion from Parkmerced. The charging allegations are 
otherwise virtually the same as in this case. The very filing 
and pendency of that case dissolves and demonstrates the 
fallacy of the notion that somehow tenants may be the only 
or most appropriate persons to enforce fair housing laws.

Notwithstanding Burbridge, resident tenants are perhaps 
the least desirable persons to attempt implementation of 
the national policy of fair housing. They would lack the 
“ personal stake in the outcome of the controversy” (Baker 
v. Carr, 369 U.S. 186, 204 (1962)) which would ensure 
that “ the dispute * * * will be presented in an adversary 
context and in a form historically viewed as capable of 
judicial resolution” (Blast v. Cohen, supra). Each would be 
necessarily dedicated to his own personal social views rather 
than to a fair and orderly effectuation of the statutes in­
volved. Further, the inherent transiency of residential ten­
ancies robs tenants of the qualities requisite to standing. 
The facts of this case provide a compelling lesson in this 
regard. As heretofore noted (n. 2 p. 6), every individual 
plaintiff in intervention has moved from Parkmerced and 
one plaintiff is about to move. Even under their own 
theories of standing they now have neither a personal stake 
in the outcome of the controversy nor a cognizable—or

22



perhaps any—interest in the subject matter of the com­
plaint.21

Finally, it is totally unnecessary to grant standing to 
petitioners to implement the enforcement features of the 
statutes. Private enforcement by proper plaintiffs is 
expressly authorized. Additionally, Congress has specific­
ally authorized the Attorney General, and only the Attorney 
General, to maintain this type of “pattern or practice” case. 
§ 3613 of the Fair Housing Act provides:

“Whenever the Attorney General has reasonable 
cause to believe that any person or group or persons 
is engaged in a pattern or practice of resistance to the 
full enjoyment of any of the rights granted by this 
title, or that any group of persons has been denied 
any of the rights granted by this title 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 preventive relief, includ­
ing an application for a permanent or temporary 
injunction, restraining order, or other order against 
the person or persons responsible for such pattern or 
practice or denial of rights, as he deems necessary to 
insure the full enjoyment of the rights granted by this 
title.”

This specific statutory grant of authority to the Attorney 
General evidences Congress’ intent that this type action be 
brought only by the Attorney General. Had Congress in­
tended otherwise it would have said so. Had it intended to 
authorize any volunteer to bring this type action § 3613 
would have been unnecessary.22

21. Cf. Brown v. Balias, 331 F.Supp. 1033, which held that the 
injunctive aspects of a case brought under the Fair Housing Act 
became moot when the plaintiff was given the housing sought,

22. Respondent does not contend that the authority granted to 
the Attorney General diminishes the right of a person directly 
aggrieved to seek private enforcement of the Fair Housing Act to 
the extent contemplated by the statutes.

23



& *“ It is the policy of the United States to provide for 
fair housing” (42 U.S.C. § 3601). The national policy can be 
implemented and enforced fully and effectively by the 
extensive procedures and efficient machinery contained in 
the Fair Housing Act itself. In Jones v. Mayer this Court 
described the Act as (p. 417) :

“ * * * a detailed housing law, applicable to a broad 
range of discriminatory practices and enforceable by 
a complete arsenal of federal authority.”

The arsenal need not be augmented to include unnecessary, 
meaningless and inconclusive lawsuits by volunteers.

II
JURISDICTION

A. The Federal Court Does Not Have Subject Matter Jurisdic­
tion Over the Claims Asserted Under the Fair Housing Act.

1. CLAIMS UNDER 5 3610.
§ 3610 of the Fair Housing Act provides:

“ (d) I f within thirty days after a complaint is filed 
with the Secretary or within thirty days after expi­
ration of any period of reference under subsection (c) 
of this section, the Secretary has been unable to obtain 
voluntary compliance with this subchapter, the person 
aggrieved may, within thirty days thereafter, com­
mence 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 he brought in any United States district 
court if the person aggrieved has a judicial remedy 
under a State or local fair housing law which provides 
rights and remedies for alleged discriminatory housing 
practices which are substantially equivalent to the 
rights and remedies provided in this sub chapter. * * *” 
(Emphasis added.)

24



Petitioners Traffieante and Carr elected to pursue the pro­
cedure of filing a complaint with the Secretary of H.IT.D. as 
authorized by § 3610 (R. Ex. A at 5). The State of Cali­
fornia has a comprehensive fair housing law generally 
known as the Rumford Act (Health and Safety Code, 
§ 35700 et seq.) which provides rights and remedies for 
alleged discriminatory housing practices which are sub­
stantially equivalent to the rights and remedies provided 
by the Fair Housing Act.23 The statement of policy in both 
Acts is substantially the same (Federal Act §3601; State 
Act § 35700). Both make unlawful the same practices (Fed­
eral Act §§ 3604, 3605, 3606; State Act § 35720), and both 
allow an aggrieved party to file a complaint with an admin­
istrative agency (Federal Act § 3610(a); State Act § 35731). 
Both State and Federal agencies are required to conduct 
appropriate investigations (Federal Act § 3610; State Act 
§ 35732). Both Acts provide for injunctive relief (Federal 
Aet §§ 3610(d), 3612; State Act § 35734). An award of 
damages is authorized by both Acts under certain circum­
stances (Federal Act § 3612; State Act § 35738) and both 
have judicial remedies (Federal Act §§ 3610(d), 3612; State 
Act §§ 35734, 35738). In many respects the Rumford Act 
confers upon an aggrieved person remedies superior to 
those of the Fair Housing Act but in any event there is 
little, if anything, that could not be accomplished under the 
Rumford Act that could be achieved under the Fair Housing- 
Act. The Rumford Act contains the judicial remedies con­
templated by § 3610(d), such remedies being provided by

25

23. Equivalence is recognized by the H.IT.D. In a letter to 
Metropolitan the Department said (K. Ex. D at Ex. 1) :

* * * we have found that the State law provides rights 
and remedies substantially equivalent to those provided by 
the Federal law.”



California Health and Safety Code §§ 35730 and 35738; 
Government Code § 11523; and Labor Code § 1428.24 25 26

The Unruh Civil Rights Act (Civ. Code §§ 51, 52) pro­
vides further, although alternative,28 remedies to a person 
aggrieved. Like the Fair Housing Act, TJnruh prohibits 
discrimination in housing (Civ. Code § 51), provides a dam­
age remedy (Civ. Code § 52) and authorizes injunctive 
relief (Vargas v. Hampson, 57 C.2d 479; 20 Cal. Rptr. 618; 
370 P.2d 322):28

Congressional concern for deference to State or local 
remedies is pointedly expressed in the congressional history 
of the Fair Housing Act. In commenting on judicial enforce­
ment procedures, Senator Miller stated:

“ It seems to me that if a State or local fair housing 
law provides substantially equivalent rights and reme­
dies, if we are going to let the local agencies of govern­
ment carry out their responsibilities, they should be 
given the opportunity to do so.

# # # # *

“ That is why I provide in the second part of my 
amendment that no civil action may be brought in any 
U. S. district court if the person aggrieved has a 
judicial remedy under a State or local fair housing law 
which provides substantially equivalent rights and 
remedies to this act.

“I believe it is a matter of letting the State and 
local courts have jurisdiction. We in the Senate know 
that our Federal district court calendars are crowded 
enough, without adding to that load if there is a good 
remedy under State law.”

24. To bar a Federal forum, § 3610(d) requires only that there 
be a judical remedy under a State or local fair housing law which 
provides rights and remedies which are substantially equivalent to 
the rights and remedies provided in the Fair Housing Act. It does 
not require that the judicial remedy itself be equivalent to the 
judicial remedy under the Federal statute.

25. Health and Safety Code § 35731.
26. The Unruh and Romford Acts were the subjects of this 

Court’s decision in Reitman v. Mulkey, 387 U.S. 369.

26



to which Senator Hart responded:
“ Mr. President, the Senator from Iowa in making 

the suggestion may very well have improved the Bill. 
It certainly recognizes the desire all of us share that 
the State remedies, where adequate, be availed of 
and that unnecessary burdening litigation not further 
clog the court calendars.

“ The Senator from Iowa in developing this approach 
has made the Bill much more acceptable. The senior 
Senator from Illinois [Mr. Dirksen] whose substitute 
we are actually discussing, shares this opinion.”27

In Colon v. Tompkins Square Neighbors, Inc., 289 
F.Supp. 104 (S.D. N.Y.), the Court refused to assume 
jurisdiction of a cause based on alleged racial discrimina­
tion in housing because of the existence of a State statute 
providing rights and remedies substantially equivalent to 
the Federal Fair Housing Act. The Court noted Congres­
sional intent, viz.: (pp. 109-110)

“However, as this Court pointed out in its original 
decision, the Congress, in Section 810(d) of the 1968 
Civil Rights Act, clearly expressed its intent that any 
person who claims to have been injured as a result of 
an alleged discriminatory housing practice must, as 
a prerequisite to the commencement of a suit in any 
United States district court, pursue his remedy in the 
state forum, assuming such a remedy is available and 
is substantially equivalent to the rights and remedies 
provided by Congress in the 1968 legislation.”

The Federal and State Acts clearly provide substantially 
equivalent rights and remedies and, accordingly, the juris­
dictional proviso of § 3610(d) is operative.

27

27. 114 Cong. Rec. 4987.



28
2. CLAIMS UNDER § 3612.

Petitioners Trafficante and Carr have also proceeded 
under § 3612 of the Fair Housing Act. The latter Section 
does not contain the specific prohibition of Federal juris­
diction appearing in § 3610(d) but the legislative history 
of the Act makes it reasonably clear that Congress intended 
the jurisdictional proviso of § 3610(d) to be applicable to 
any suit brought under the Act. Nothing in the discussions 
or comments relating to jurisdiction indicate an intent to 
provide a broader base of federal jurisdiction under § 3612 
than under § 3610. There is no apparent reason for allowing 
an action to be brought in a Federal Court under § 3612 if 
the same action under § 3610 is prohibited.28

In any event, the remedies provided in §§ 3610 and 3612 
are alternative, not concurrent. On April 10, 1968 Repre­
sentative Ford quoted from a study memorandum, viz.:

“ Section 812 states what is apparently an alternative 
to the conciliation-then-litigation approach above

28. In commenting upon §§ 3610 and 3612, the author of 82 
Harvard Law Review 834 observed (pp. 855-856) :

“ It has been tentatively assumed throughout this Note that 
direct access is available under section 812 of title VIII. This 
assumption may not be easily accepted by courts. Section 812 
may be thought to refer only to those actions properly before 
a federal court after the procedures outlined in section 810 
have been followed. The argument is persuasive for the same 
reasons advanced to deny direct access under title VII. The 
agency procedures under title V III are quite detailed. To 
permit bypassing threatens to render useless the elaborate steps 
taken to promote voluntary compliance and state and local 
participation in eliminating discrimination. In addition, the 
anomalies which apparently result from permitting direct 
access under title V III are even less capable of rationalization 
than those which would result in the context of title VII. For 
example, section 810(d) explicitly requires federal courts to 
defer to appropriate state courts. If section 812, which con­
tains no such requirement, is interpreted as an independent 
and direct route to the court, the concern for deferral is 
abandoned for no apparent reason.”



stated: an aggrieved person within 180 days after the 
alleged discriminatory practice occurred, may, without 
complaining to HUD, file an action in the appropriate 
U. S. district court. * * * If the aggrieved party has 
first sought the assistance of the Secretary and then 
files an action within thirty days of his filing the com­
plaint with the Secretary, then the civil action arises 
under section 810(d), a section to which the expedition 
requirement of section 814 does not apply.” (Emphasis 
added)29

Having availed themselves of the procedures set forth in 
§ 3610, Trafficante and Carr should be held subject to the 
mandates of that Section.30 It was noted in Colon v. Tomp­
kins Square Neight ors, I n c supra that: (p. 107)

“ * * * the Court never intended to provide alternative 
forums, the choice of which depended solely on the 
whim of the plaintiff with total disregard for the 
adequacy of state mechanisms.”

The plaintiffs in intervention, who have proceeded 
directly under § 3612 without prior resort to the adminis­
trative procedures of § 3610, occupy no better jurisdictional 
position than petitioners Trafficante and Carr. Since Cali­
fornia has fair housing laws which provide rights and 
remedies for discriminatory housing practices which are 
substantially equivalent to the rights and remedies of the 
Fair Housing Act, the plaintiffs in intervention should be 
relegated to their State law remedies by reason of § 3610(d)

29

29. 114 Cong. Ree. 9612.
30. Johnson v. Decker, 333 F.Supp. 88 (D.C. Ca.) is distinguish­

able. There an action was filed under § 3612 by several plaintiffs 
after one had filed an administrative complaint under § 3610. 
Unlike this case, no attempt was made to assert claims under § 3610 
and § 3612 at the same time in the same judicial proceeding.



of the Fair Housing Act.31 There appears to be no reason or 
justification for permitting this action to be filed in a 
Federal Court in California. If such action is authorized 
without regard to the adequacy of State remedies the juris­
dictional limitation of § 3610(d) will have been nullified.

B. Under the Circumstances of This Case the Federal Court 
Should Abstain from Exercising Jurisdiction of the Claims 
Under § 1982.

The Federal Court should not accept jurisdiction of the 
causes of action of the Complaint and Complaint in Inter­
vention which are predicated upon an alleged violation of 
42 U.S.C. § 1982. In Hunter v. Erickson, 393 U.S. 385 
(1969), this Court admonished that the (p. 388):

“ * * * 1866 Civil Rights Act considered in Jones [v. 
Mayer, 392 U.S. 409] should be read together with the 
later statute on the same subject (citations) so as not 
to pre-empt the local legislation which the far more 
detailed Act of 1968 so explicitly preserves.” (Emphasis 
added.)

The subject matter of the petitioners’ § 3610, § 3612, and 
§ 1982 claims are exactly the same and they should not be 
allowed to strip the Fair Housing Act’s mandatory defer­
ence to State and local fair housing laws by simply resorting 
to § 1982. The combined rationale of Jones, Hunter, and 
Colon requires that, at the very least, Federal Courts should 
abstain from exercising jurisdiction under the circum­
stances of this case.

30

31. In Brown v. Lo Duca, 307 F.Supp. 102, and Johnson v. 
Decker, 333 F.Supp. 88, direct access to the District Court under 
§ 3612 was allowed. Those decisions, however, appear irreconcilable 
with the combined effect of Jones v. Mayer, Hunter v. Erickson, 
393 U.S. 385, Colon v. Tompkins Square Neighbors, Inc., the con­
gressional history of the Fair Housing Act, and the specific mandate 
and spirit of § 3610(d).



31
III

THE CASE IS MOOT A S  T O  METROPOLITAN

As heretofore noted, on December 21, 1970, Metropolitan 
sold the buildings, structures and improvements consti­
tuting Parkmerced and leased the underlying land to Park- 
merced Corporation for an initial term of thirty years. 
On that date, Metropolitan was divested of all right to 
manage, control or otherwise operate Parkmerced, including 
the rental of apartment units, and it no longer has any 
employees engaged in Parkmerced operations (R. Ex. K 
at 1, 2).

In United States of America v. W. T. Grant Company, 
345 U.S. 629 (1953) this Court stated (p. 633):

“Along with its power to hear the case, the court’s 
power to grant injunctive relief survives discontinu­
ance of the illegal conduct. (Citations.) The purpose of 
an injunction is to prevent future violations, (citation) 
and, of course, it can be utilized even without a showing 
of past wrongs. But the moving party must satisfy 
the court that relief is needed. The necessary deter­
mination is that there exists some cognizable danger of 
recurrent violation, something more than the mere 
possibility which serves to keep the case alive.” 
(Emphasis added.)

Similarly, in United States v. Concentrated Phosphate 
Export Association, Inc., 393 U.S. 199 (1968), the Court 
observed (p. 203):

“A case might become moot if subsequent events made 
it absolutely clear that the allegedly wrongful behavior 
could not reasonably be expected to recur. (393 U.S. 
199, 203.)

See, also:
United States of America v. Alaska Steamship Com­

pany, 253 U.S. 113 (1920);



Textile Workers Union v. Lincoln Mills, 353 U.S. 
448 (1957);

Alejctndrino v. Quezon, 271 U.S. 528 (1926);
Golden v. Zwickler, 394 U.S. 103 (1969);
Alameda Conservation Association, et al. v. State of 

California, et al., 437 F.2d 1087 (Ca. 9) cert. den. 
402 U.S. 928;

McKee d  Co. v. First National Bank of San Diego, 
397 F.2d 248 (Ca9)

In Powell v. McCormack, 395 U.S. 486 (1969), this Court 
capsuled the mootness rale, viz.: (p. 496)

“ Simply stated, a case is moot when the issues pre­
sented are no longer dive’ or the parties lack a legally 
cognizable interest in the outcome.”

This action is now moot as to Metropolitan. There exists 
no “ cognizable danger of recurrent violation” (United 
States of America v. W. T. Grant Company, snpra). The 
fact that the petitioners have claimed damages does not 
save the ease from the mootness doctrine as it did in Powell 
and Textile Workers Union. Petitioners here are not 
entitled to damages in any event.

The prayer for injunctive relief against Metropolitan is 
now academic. While petitioners challenged Metropolitan’s 
claim to mootness in the courts below they did concede that 
“ a court would have difficulty in enforcing an affirmative 
action order against a seller who no longer controlled the 
rental offices or the business operations of the project * * 
Having no control whatever over the operation of Park- 
mereed, Metropolitan would be powerless at this time to 
comply with any injunctive order, either prohibitory or 
mandatory, that a Court might otherwise theoretically 
make.

32



33

CO N CLU SIO N
For the foregoing reasons the Judgment of the Court of 

Appeals should be affirmed.

Dated: July 14, 1972.

Respectfully submitted,

R ichard  J. K il m a r t in  
K n ig h t , B oland & R iordan

Attorneys for 
Respondent 
Metropolitan Life 
Insurance Company



Appendix A.

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

Case No. C-70 1754(RHS)

Paul J. Trafficante, 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 U.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. Hided, 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 chitacke 
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 bane 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 U.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 Appendix
§ 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 subchapter, 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.

(e) 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.
Pnb.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 VIII, § 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 Ms 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 wrhom 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 Ms 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 ont 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 (e) 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) If 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.

Revocation 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 he 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 by 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 ma3? 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 lie 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 subchapter 
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.

C3 RUMFORD ACT
California Health and Safety Code § 35700, et seq.

§ 35700. Discrimination against public policy; police power.
The practice of discrimination because of race, color, 

religion, national origin, or ancestry in housing accommo­
dations is declared to be against public policy.

This part shall be deemed an exercise of the police power 
of the State for the protection of the welfare, health, and 
peace of the people of this State.

§ 35720. Unlawful acts. It shall be unlawful:
1. For the owner of any publicly assisted housing accom­

modation which is in, or to be used for, a multiple dwelling, 
with knowledge of such assistance, to refuse to sell, rent or 
lease or otherwise to deny to or withhold from any person 
or group of persons such housing accommodation because 
of the race, color, religion, national origin, or ancestry of 
such person or persons.

2. For the owner of any publicly assisted housing accom­
modation which is in, or to be used for, a multiple dwelling, 
with knowledge of such assistance, to discriminate against 
any person because of the race, color, religion, national 
origin or ancestry of such person in the terms, conditions 
or privileges of any publicly assisted housing accommoda-



24 Appendix
tions or in the furnishing of facilities or services in con­
nection therewith.

3. For any owner of any publicly assisted housing 
accommodation which is in, or to be used for, a multiple 
dwelling, with knowledge of such assistance, to make or to 
cause to be made any written or oral inquiry concerning 
the race, color, religion, national origin or ancestry of a 
person seeking to purchase, rent or lease any publicly 
assisted housing accommodation for the purpose of vio­
lating any of the provisions of this part.

4. For the owner of any publicly assisted housing 
accommodation which is a single family dwelling occupied 
by the owner, with knowledge of such assistance, to commit 
any of the acts prohibited by subdivisions 1, 2, and 3.

5. For the owner of any dwelling, other than a dwelling 
containing not more than four units, to commit any of the 
acts prohibited by subdivisions 1, 2, and 3.

6. For any person subject to the provisions of Section 
51 of the Civil Code, as that section applies to housing 
accommodations, as defined in this part, and to transactions 
relating to sales, rentals, leases, or acquisition of housing 
accommodations, as defined in this part, to discriminate 
against any person because of race, color, religion, national 
origin, or ancestry with reference thereto.

7. For any person, bank, mortgage company or other 
financial institution to whom application is made for finan­
cial assistance for the purchase, organization, or construc­
tion of any housing accommodation to discriminate against 
any person or group of persons because of the race, color, 
religion, national origin or ancestry of such person or 
persons, or of prospective occupants or tenants, in the 
terms, conditions or privileges relating to the obtaining or 
use of any such financial assistance.



Appendix 25
8. For any person to aid, abet, incite, compel or coerce 

the doing of any of the acts or practices declared unlawful 
in this section, or to attempt to do so.

§ 35731. Filing of verified complaint with commission; con­
tents ; limitation on time for filing; procedure; law 
governing.

Any person claiming to be aggrieved by an alleged vio­
lation of Section 35720 may file with the commission a 
verified complaint in writing which shall state the name and 
address of the person alleged to have committed the viola­
tion complained of, and which shall set forth the particulars 
thereof and contain such other information as may be 
required by the commission. However, no such complaint 
may be made or filed unless the person claiming to be 
aggrieved waives any and all rights or claims that he may 
have under Section 52 of the Civil Code and signs a 
written waiver to that effect.

No complaint may be filed after the expiration of 60 days 
from the date upon which the alleged violation occurred. 
This period may be extended for not to exceed 60 dajrs fol­
lowing the expiration of the initial 60 days, if a person 
allegedly aggrieved by such violation first obtained knowl­
edge of the facts of such alleged violation after the expira­
tion of the initial 60 days from date of its occurrence.

The State Fair Employment Practice Commission may 
thereupon proceed upon such complaint in the same manner 
and with the same powers as provided in Part 4.5 (com­
mencing with Section 1410) of Division 2 of the Labor Code 
in the case of an unlawful employment practice, and the 
provisions of that part which are not inconsistent with this 
part as to the powers, duties and rights of the State Fair 
Employment Practice Commission, its chairman, members, 
attorneys or agents, the comrdainant, the respondent, the



26 Appendix
Attorney General and the superior court, shall apply to any 
proceeding under the provisions of this section. However, 
Section 1430 of the Labor Code shall not apply to this part, 
and the Attorney General may not make, sign, or file a 
complaint under this part.

§ 35732. Preliminary investigation; attempt to eliminate 
unlawful practice or dismissal of complaint; 
notice of dismissal; appeal; written accusation.

(a) If such verified complaint alleges facts, directly or 
upon information and belief, sufficient to constitute a vio­
lation of any of the provisions of Section 35720, the chair­
man of the commission shall designate one of the commis­
sioners to make, with the assistance of the commission’s 
staff, prompt investigation in connection therewith. If such 
commissioner determines after preliminary investigation 
that probable cause exists for believing the allegations of 
the complaint, he shall immediately endeavor to eliminate 
the alleged unlawful practice by conference, conciliation, 
and persuasion.

(b) If, after the preliminary investigation, probable 
cause does not exist for believing the allegations of the 
complaint, the assigned commissioner shall dismiss the 
complaint. Notice of dismissal shall be sent to the respond­
ent and the complainant by registered mail—return receipt 
requested and the complainant then shall have 15 days from 
the receipt day to file an appeal to the dismissal.

If the assigned commissioner fails to eliminate such 
alleged unlawful practice and believes probable cause still 
exists, he may issue and serve in the name of the commis­
sion, a written accusation together with a copy of such 
complaint, as the same may have been amended, requiring 
the owner named in such accusation, hereinafter referred



Appendix 27
to as “ respondent,” to answer the charges of such accusa­
tion at a hearing.

The written accusation, hearings, and all matters pertain­
ing thereto shall be in accordance with the Administrative 
Procedure Act, Chapter 5 (commencing with Section 11500) 
of Part 1, Division 3, Title 2 of the Government Code, and 
the commission shall have all the powers granted therein.
§ 35734. Injunction pending investigation and determina­

tion by commission.
The commission, at any time after a complaint is filed 

with it and it has been determined that probable cause exists 
for believing that the allegations of the complaint are true 
and constitute a violation of this part, may bring an action 
in the superior court to enjoin the owner of the property 
from taking further action with respect to the rental, lease, 
or sale of the property until the commission has completed 
its investigation and made its determination; but a tem­
porary restraining order obtained under this section shall 
not, in any event, be in effect for more than 20 days. In such 
action an order or judgment may be entered awarding such 
temporary restraining order or such preliminary or final 
injunction in accordance with Section 527 of the Code of 
Civil Procedure.

§ 35738. Findings of commission; cease and desist order; 
affirmative action.

If the commission finds that a respondent has engaged 
in any unlawful practice as defined in this part, the com­
mission shall state its findings of fact and shall issue and 
cause to be served on such respondent an order requiring 
such respondent to cease and desist from such practice and 
to take one of the following affirmative actions, as, in the 
judgment of the commission, will effectuate the purpose of 
this part:



28 Appendix
(1) The sale or rental of the housing accommodation to 

the aggrieved person, if it is still available.
(2) The sale or rental of a like accommodation, if one is 

available, or the next vacancy in a like accommodation.
(3) The payment of damages to the aggrieved person in 

an amount not to exceed five hundred dollars ($500), if the 
commission determines that neither of the remedies under 
(1) or (2) is available.

The commission may require a report of the manner of 
compliance.

If the commission finds that a respondent has not engaged 
in any practice which constitutes a violation of this part, 
the commission shall state its findings of fact and shall issue 
and cause to be served on the complainant an order dis­
missing the said accusation as to such respondent. A. copy 
of its order shall be delivered in all cases to the Attorney 
General and such other public officers as the commission 
deems proper.

Any order issued by the commission shall have printed 
on its face references to the provisions of the Administra­
tive Procedure Act which prescribe the rights of appeal of 
any party to the proceeding to whose position the order is 
adverse.

C 4. UNRUH CIVIL RIGHTS ACT 
California Civil Code § 51, 52

§ 51. Equal Rights in All Business Establishments.— 
This section shall be known, and may be cited, as the Unruh 
Civil Rights Act.

All persons within the jurisdiction of this State are free 
and equal, and no matter what their race, color, religion, 
ancestry, or national origin are entitled to the full, and 
equal accommodations, advantages, facilities, privileges,



Appendix 29
or services in all business establishments of every kind 
whatsoever.

This section shall not be construed to confer any right or 
privilege on a person which is conditioned or limited by law 
or which is applicable alike to persons of every color, race, 
religion, ancestry or national origin.

§ 52. Penalty for Denial.—Whoever denies, or who aids, 
or incites such denial, or whoever makes any discrimina­
tion, distinction or restriction on account of color, race, 
religion, ancestry, or national origin, contrary to the pro­
visions of Section 51 of this code, is liable for each and 
every such offense for the actual damages, and two hundred 
fifty dollars ($250) in addition thereto, suffered by any 
person denied the rights provided in Section 51 of this code.



30 Appendix
Appendix D

COMPLAINT FOE 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. Bourse 
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 Bnrbridge,
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



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 Parkmereed 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 Parkmereed within the past 180 days. 
Plaintiff Hensley applied or attempted to apply for an 
apartment at Parkmereed 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 Parkmereed 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 Parkmereed he was a bona fide poten­
tial applicant for such apartment and was interested in 
residing at Parkmereed.

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

Appendix 31



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,

32 Appendix



known as Parkmereed. 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. Parkmereed 
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 Parkmereed Corporation en­
tered into and consummated various transactions relating 
to the Parkmereed property including the following:

(a) Metropolitan leased the underlying real property at 
Parkmereed to Parkmereed 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 
Parkmereed. No option to purchase said underlying real 
property was granted to Parkmereed Corporation.

(b) Parkmereed Corporation purchased all of the build­
ing improvements and personal property at Parkmereed. 
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 Parkmereed.

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

Appendix 33



34 Appendix
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 [RHS]) 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



Appendix 35
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



36 Appendix
available. Defendants have further discouraged minority- 
group members who are potential and qualified applicants 
by making rude 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 37
ments which are substantially more expensive and less de­
sirable than those actually applied for;

(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- 
merced 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:



38 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 39
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 Rights 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.



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

proceedings are, and may he 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 bylaw; and

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

Dated February 25,1971.

George H. Clyde, Jr. 
Stephen V. Bomse 

Margaret D. Brown