Riga v Alexander Brief in Opposition to Petition Writ of Certiorari

    No. 00-195

IN THE

SUPREME COURT OF THE UNITED STATES
JOSEPH AND MARIA RIGA,

Petitioners

RONALD AND FAYE ALEXANDER and 
FAIR HOUSING PARTNERSHIP OF 
GREATER PITTSBURGH, INC.,

Respondents

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF 
CERTIORARI

Caroline A. Mitchell 
Counsel o f Record 
3700 Gulf Tower, 707 Grant St. 
Pittsburgh, PA 15219 
(412) 232-3131

Timothy P. O'Brien 
1705 Allegheny Bldg.
429 Forbes Avenue 
Pgh. PA 15219 
(412)232-4400 
Attorneys for Respondents



I

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether a fair housing organization which 
proved diversion of its resources for investigating a 
complaint of race discrimination in housing has standing 
to sue for damages caused by the violations of the Fair 
Housing Act which its investigation revealed.

2. Whether landlords who violated the Fair 
Housing Act are liable to the aggrieved parties 
whose rights were violated by their conduct

3. Whether punitive damages can be awarded 
for violations of the Fair Housing Act where the jury failed 
to award actual damages.

4. Whether a principal with a non-delegable 
duty not to discriminate is vicariously liable for punitive 
damages for housing discrimination committed by his 
managerial agent



ii

TABLE OF CONTENTS

Counterstatement Of Questions Presented.................  i

Table Of Contents.............................................................. ii

Table Of Cited Authorities...........................................  iv

CounterStatement of the Case..................................  1

Reasons For Not Granting The Writ............................. 5

I. Courts Of Appeal Have Correctly 
Applied Precedent To Hold That 
Fair Housing Organizations Which 
Proved Diversion Of Resources To 
Investigating A Bona Fide Com­
plaint Of Discrimination and 
Countering its Effects Have Stand­
ing To Sue.........................................................  5

II. The Third Circuit's Decision 
Properly Recognizes That Land­
lords' Violations Of The Fair 
Housing Act Renders Landlords 
Liable For Damages and Does 
not Conflict with Decisions of 
This Court......................................................... 9

IH. The Decision of the Court of 
Appeals Holding that Punitive 
Damages Can Be Awarded For 
Violations Of Federal Civil Rights 
Absent An Award Of Actual 
Damages Is in Conflict only 
with Decisions of Other Courts 
which Wrongly Applied State 
Law , not Federal Law to Federal 
Civil Rights Questions...................... 11



Ill

IV. The Decision of the Court of 
Appeals Holding that a Principal 
is Vicariously Liable for Punitive 
Damages For Discrimination by A 
Managerial Agent Comports with
Agency Law.....................................................  13

Conclusion........................................................................  14



IV

TABLE OF CITED AUTHORITIES

Cases Page

Alexander v. Riga , 208 F.3d 419 (3rd
Cir. 2000)......................................................................... 10,11

Basista v. Weir, 340 F.2d at 87 (3rd Cir.
1965)...................................................................................  13, 14

Bennett v. Spear, 520 U.S. 154, 117 S.Ct.
1154, 1166 (1997)...........................................................  13

Carey v. Piphus, 435 U.S. 247, 98 S.Ct.
1042, 1054, 55 L.Ed. 2d 252 (1978)...........................  11

Fair Employment Council O f Greater 
Washington, Inc. V. BMC Marketing 
Corp., 28 F.3d 1268 (D.C. Cir. 1994)........................  9

Fair Housing Council o f Suburban 
Philadelphia v. Montgomery Newspapers,
141 F.3d 71 (3d Cir. 1998)..........................................  7

Goodman v. Lukens Steel, 482 U.S. 656,
661, 96 L. Ed. 2d 572, 107 S. Ct.
2617 (1987)......................................................................  9

Havens Realty Corp. v. Coleman, 455 
U.S. 363, 102 S.Ct. 1114, 71 L.Ed. 2d.
214 (1982)......................................................................... 6, 7

15

Hooker v. Weathers, 990 F.2d 913 (6th
Cir. 1993).......................................................................... 8

Kolstad v. American Dental Association,
527 U.S. 526 (1999)......................................................  14

Eouisiana ACORN Fair Housing v.
LeBlanc, 211 F.3d 298 (5th Cir. 2000).......................... 8, 9



V

McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).............................................  11

People Helpers Foundation, Inc. v. City of 
Richmond, Va., 12 F.3d 1327 (4th Cir.
1993)...................................................................................  13

Reeves v. Sanderson Plumbing Products,
Inc. , 120 S.Ct. 2097 (2000)......................................... 11

Smith v. Wade, 461 U.S. 30, 75 L.Ed.
2d 632, 103 S.Ct. 1625 (1983).................................... 15

Spann v. Colonial Village, Inc., 283 
U.S.App.D.C. 216 899 F.2d 24 (D.C.
Cir. 1990).......................................................................... 8

The Civil Rights Cases, 109 U.S. 3, 22-23, 27 L. Ed.
835, 3 S.Ct. 18 (1883)...................................................  9

Village o f Bellwood v. Dwivedi, 895 F.2d
1521 (7th Cir. 1990)...................................................  8

Walker v. Anderson Elec. Connectors, 944
F.2d 841 (11th Cir. 1991)............................................... 12

13

Statutes:

The Civil Rights Act of 1968 , Title VIII
The Fair Housing Act, Sec. 801-812, 42 USC 3601
et seq. (1988)

42U.S.C. 3601 ................................................... 12
42 U.S.C. 3604 ................................................... 4, 9

10
42 U.S.C. 3613(c).................................................  9 ,12

The Civil Rights Act of 1964, Title VII 
as amended, 1991

42 USC 1981(a) 11



VI

The Civil Rights Act of 1871

42 U.S.C. 1983......................................................  14

Authorities

Restatement o f the Law, Agency (Second) Sec. 217 
C .............................................................................................  14

D. Dobbs, Law of Remedies, Sec. 3.8, pp. 191-193 
(1973)....................................................................................  10



1

COUNTERSTATEMENT OF THE CASE

Petitioners unfairly characterize themselves in their 
Petition before this Court as a 'mom and pop' Italian- 
American couple who own 'an' apartment building in 
Pittsburgh, Pa. Petitioners' Brief at 3. In fact, Joseph and 
Maria Riga ( hereinafter, 'landlord-Husband' and 
'Landlord-Wife' ) own and operate six multi-unit 
apartment buildings in Pittsburgh, Pa. App. D at 59 a. 
Mrs. Riga admitted that that she served as managerial 
agent doing all tenant applications, check cashing, bill 
payment and dealing with tenants, while her husband was 
in Italy. Landlord Wife advertised in the Sunday 
September 17, 1995 newspaper an apartment for rent in 
one of their buildings, 5839 Darlington Rd., located in a 
predominantly white, wealthy area of Pittsburgh. On that 
same day, Ron and Faye Alexander, an African-American 
couple, telephoned the Rigas' unlisted number stated in the 
ad and set up an appointment with Maria for the 
Alexanders to view the apartment . The Alexanders 
telephoned Maria and changed the time of their 
appointment. At the appointment on Monday 9/18, Mrs. 
Riga saw the Alexanders waiting for her, realized they 
were black , and falsely advised the Alexanders 'they had 
just missed ' the apartment. This apartment remained 
empty and not rented, and was advertised weekly by the 
Rigas, from September 17 until November 20, 1995. 
App.D. at 67a.

The next Sunday 9/25/95, the same ad appeared 
again. Seeing the same advertisement Mr. Alexander 
asked a white friend, Robin McDonough to call about it. 
Robin reported to the Alexanders that she was told that 
the apartment was available. Mrs. Alexander then called 
again, identifying herself as Stacy, and was asked by 
Maria where she was then living. Faye replied 
'Homewood', a predominantly poor and black area of 
Pittsburgh; Faye was falsely told by Maria the apartment 
was not available. After consulting with a lawyer, 
Caroline Mitchell, Mr. Alexander complained about the 
way he and his wife had been treated to the Fair Housing 
Partnership of Pittsburgh (hereinafter 'FHP'.) Attorney 
Mitchell hired a private white detective Jeff Lang, to 
investigate.



2

Using a different name, Mr. Alexander telephoned 
to see the apartment, received an appointment from Maria 
for 9/30, and called Maria twice the morning of 9/30 to 
confirm his appointment. When he met Maria at the 
building, she falsely stated that she had forgotten her keys, 
and could not show him the apartment, as her hand 
covered up her keys. Mr. Alexander "couldn't believe it, it 
made him angry," he thought she was lying. When he 
asked to reschedule, Mrs. Riga refused to reschedule and 
said that he could call her. He was feeling "a little bit too 
sick to say anything else . . . .  He walked away, then 
turned and saw her entering the building.." At trial, the 
Alexanders described in detail the deceptions to which 
they were subjected, and the consequent mortification they 
suffered. Mr. Alexander continued to try to contact Mrs. 
Riga after the 'key' incident, and also had friends call. He 
testified at trial that he felt "hurt and discouraged, it is 
sort of degrading, it discourages you from trying . . .  to 
find a place for your family to live, it is just sickening, I 
really can't describe it. It is terrible . .

After filing a complaint with FHP , Ron Alexander 
called the Riga number, leaving numerous messages from 
9/30 through 10/8 to reschedule, but did not receive any 
responding telephone call from Mrs. Riga. When he did 
'catch ' Maria personally answering the phone, she refused 
to deal with him, falsely telling him ' the unit has been 
rented' 'the ad was placed prematurely, the old tenant had 
n't moved yet'; ' 'the apartment is not available.' From 
September 17, 1995, through October 8, 1995, on ten 
separate occasions, Ronald and Faye Alexander, inquired 
about availability of the apartment and were lied to by 
Maria Riga. During the same time, whites had their calls 
returned, were truthfully told the apartment was available, 
and were granted a view.

Ron Alexander complained about Mrs. Riga's 
behavior to Fair Housing Partnership of Pittsburgh, a fair 
housing organization funded by the Federal government 
whose mission and purpose is to investigate complaints of 
housing discrimination. To investigate the Alexanders' 
complaint, FHP staff ' dropped everything else ' to set up 
a tester program for 5839 Darlington. FHP staff was 
concerned because the Riga's refusal to deal with blacks in



3

Squirrel Hill exacerbated the segregation that already 
existed in Allegheny County, r. 232. FHP staff prepared, 
structured and monitored the tests, and found and 
assigned black tester Daria Mitchell and white tester , 
Dennis Orvosh. Daria Mitchell, an African-American 
"tester" for the FHP, telephoned Maria for an appointment 
and was deliberately given a nonexistent and incorrect 
address ('583' Darlington Rd. instead of '5389') by Maria 
, who also falsely identified herself as 'Maria Ianotti ' to 
Daria. As Daria walked up to the building, Maria Riga 
and Jeff Lang ( the white detective hired by counsel for 
the Alexanders) had just finished viewing the apartment. 
As Maria saw Daria, she told Jeff that ' this woman 
(Daria) is driving me up a wall' as she rolled her eyes . 
Daria was then falsely told by Maria , in front of Jeff, that 
' Jeff was getting the apartment.' Maria Riga never replied 
to Daria Mitchell's request to call Daria if the apartment 
became available.

From Sept. 30 through Oct. 4, FHP then structured 
tests, assigned testers, and monitored additional tests to 
see if whites were still being told the truth about 
apartment availability while blacks Daria Mitchell and 
Ron Alexander did not even get return phone calls. FHP's 
investigation disclosed that beginning September 18 1995, 
on ten separate occasions, Mrs. Riga returned phone calls 
to whites, and truthfully told whites that the apartment 
was available, allowed each white a view, and promptly 
returned whites' phone calls. As of Nov. 20, 1995, Maria 
had never replied to the requests of Daria Mitchell or Ron 
Alexander. (In their petition, Respondents unfairly 
characterize this testing and investigation by FHP as 
FHP's 'minimal and gratuitous..' involvement.)

The inability of blacks to rent in Squirrel Hill was of 
concern to FHP. FHP believed that because the segregation 
was in Squirrel Hill, a predominantly white area, an 
unchecked act of discrimination had a strong negative 
impact. To counter the Riga's discrimination, and as a 
result of the Alexanders' Complaint, FHP diverted staff 
resources and funding from other projects to 
investigate the complaint, then undertook activities of 
education and outreach to counter the effects of the 
Rigas' discrimination.



4

FHP joined Ron and Faye Alexander as plaintiffs 
in suing the Rigas for race discrimination for Landlords' 
violations of their rights to truthful information as 
guaranteed by the Fair Housing Act , 42 USC 3604(d). 
Contrary to Respondents' description of the relief sought, 
all Plaintiffs sought compensatory, nominal and punitive 
damages , declaratory, equitable and injunctive relief, and 
presented evidence in support of damages at trial. In 
defense of the claims, Mr. Riga claimed he was in Italy, 
and Mrs. Riga variously claimed that she had never 
met, seen or spoken to the Alexanders, that her answer 
machine was broken, that she received no messages from 
the Alexanders, that Apartment #2 was not vacant or 
available for rent, that the tenant had not moved yet and 
that the apartment had been advertised 'prematurely.'

A jury found in favor of each Plaintiff, 
returning special verdicts that Maria Riga had 
discriminated and had violated the Fair Housing Act. 
App. B at 33a. Because Landlord-Wife conceded that she 
was managerial agent for her co-principal, her husband, 
the discriminatory acts of the agent were imputed to the 
principal and the jury was charged with determining only 
whether Maria Riga as agent had discriminated and 
violated the Fair Housing Act. If so, Joseph as principal 
was liable by law for the discriminatory acts of his agent . 
The learned trial court committed plain error in the jury 
instructions, when it instructed the jury that it must find ' 
legal harm' as prerequisite to an award of compensatory or 
nominal damages. The jury found no 'legal harm' to the 
Alexanders, and awarded zero damages to each, despite 
testimony that both Alexanders were embarrassed and 
humiliated and that the services of the private detective 
had cost $450.00.

The jury found ' legal harm' to FHP, but awarded 
no damages despite FHP's testimony of $2250 in expenses 
incurred in investigating the Alexanders' complaint, App. 
at 76a . The trial court refused to send punitive damages 
to the jury, because no award of compensatory damages 
had been made for any plaintiff. App. B at 41 a. The trial 
court entered judgment for Landlords as prevailing parties 
against all Plaintiffs then reversed its entry of judgment 
for Landlords against FHP. App. B at 45a-46-a. The



5

trial court refused to tax costs for plaintiff FHP , or for 
Defendants against Plaintiffs, App. B at 51a-52a, 
reasoning that each party should bear its own costs, and 
that 'there should be some consequence to the Rigas for 
such conduct. ' The result of the trial was thus that all 
Plaintiffs spent their own funds and were out of pocket for 
proving Landlords had committed violations of the Fair 
Housing Act in refusing to deal with Afro-Americans at 
their Darlington apartment.

On appeal, the court of appeals affirmed the 
standing of FHP to sue , App. A at 11a, and found that 
once the jury found discrimination, it was plain error for 
the District court to require Plaintiffs to also prove ' 'legal 
causation and harm ' to be entitled to compensatory 
damages. App. A at 13a, 14a. The Court of Appeals also 
found that the jury was erroneously instructed that an 
award of nominal damages requires a finding of 
'insubstantial actual damages or ' legal harm. '

A plaintiff need not prove that a violation of the 
Fair Housing Act caused 'legal harm or actual injury.' 
App. A 14 a . The Court of Appeals reversed the entry of 
judgment for the Landlords against the Alexanders, 
assigned judgment for the Alexanders, declared the 
Alexanders and FHP to be prevailing parties against 
Landlords, and remanded for assessment of attorney fees 
and costs against Landlords and a new trial on punitive 
damages against both Landlord Husband and Landlord 
Wife . A principal (Joseph Riga) who has violated his non 
delegable duty not to discriminate by acts of his 
managerial agent is liable for punitive damages under 
Restatement Second Agency 217 C(c) . App A at. 30a.

REASONS FOR NOT GRANTING THE WRIT

I.

Courts of Appeal Have Correctly Applied Precedent to 
Hold that A Fair Housing Organization Which Proved 
Diversion Of Its Resources For Investigating A Bona 
Fide Complaint of Race Discrimination In Housing Has 
Standing To Sue For Violations Of The Fair Housing Act 
under Havens Realty v. Coleman



6

The Court of Appeals properly applied Havens 
Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 
L.Ed. 2d. 214 (1982), to uphold the trial court's decision 
that FHP had standing to sue as an aggrieved person who 
suffered damages by its diversion of resources to 
investigate a complaint, and action to counter the 
Landlords' discriminatory acts. App A at 7a. In their Brief 
at p. 6, Petitioners misstate the record below by stating 
that the only basis for FHP's suit is the ' litigation expense' 
incurred by FHP. Petitioners further mislead this Court by 
claiming that the court below erroneously' held that merely 
incurring litigation expense' confers standing.

FHP sought damages flowing from Landlords' 
violations of the Fair Housing Act which FHP's 
investigation revealed. 'Litigation expense' alone was 
never sought by FHP; the record discloses FHP's 
spending money for investigation of the Alexanders' 
complaint and FHP staff's 'dropping everything else' and 
diverting time and money from other projects to 
formulate, prepare, assign and conduct tests to see if 
Landlords were refusing to deal with black applicants at 
Darlington. Finding discrimination, FHP then countered 
the effects of the Rigas' discrimination by education and 
outreach, diverting more money and staff time from its 
other programs. FHP based its standing to sue on its 
status as an aggrieved person statutorily entitled to sue to 
redress Landlords' violations of the law and its incurring 
damages of expenses for its investigation and outreach 
caused by Landlords' violations. App. D, at 75 a-76a.

In an effort to obtain certiorari, Petitioners not only 
misstate the record on 'litigation expense' but also 
mischaracterize the Court of Appeals decision on standing 
as 'undermining' Havens. Havens involved a fair housing 
organization who assigned two testers to investigate a bona 
fide complaint that Havens was lying to blacks about 
apartment availability in violation of 3604(d). Havens 
established the rights of the organization to sue based 
upon deprivation of statutory rights guaranteed by the Fair 
Housing Act, because invasion of those rights constitutes 
an injury . Damages to a fair housing organization may 
include damages for diversion of its resources and 
impairment of its mission. Havens, Id. at 372.



7

Petitioners argued to the Third Circuit that its 
panel decision in Fair Housing Council o f Greater 
Philadelphia v. Montgomery Newspapers , 141 F. 3d 71 (3rd 
Cir. 1998) 'has created confusion within the Circuit../ Brief 
at 8. However, the court of appeals unanimously rejected 
Landlords' contention that frustration of mission and/or 
diversion of resources to investigation are each insufficient 
to confer standing. In Fair Housing Council, The Third 
Circuit cited to Havens stating, "Havens made clear that 
where discriminatory practices have perceptibly impaired 
an organization's ability to carry out its mission, there can 
be no question that the organization has suffered an injury 
in fact." The court then noted that FHC's claim based on 
diversion of resources to investigation 'fails for lack of 
proof.' ".... Thus, in both Alexander and FHC , the Third 
Circuit correctly ruled that diversion of resources to 
investigation can constitute injury in fact. The 'confusion 
in the third Circuit' claimed by Landlords simply does not 
ex ist.

Petitioners also seek certiorari, and cite a 
number of court of appeals decisions applying the 
established principles of Havens to the complicated factual 
records in these cases. The mere fact that lower courts 
applying Havens come to different results as to 
organizational standing is not per se evidence of a 'split in 
the circuits.' In Spann v. Colonial Village, 283 
U.S.App.D.C. 216 899 F.2d 24 (D.C. Cir. 1990) the 
Court found that 'the fact that the alleged harm affects 
the organization's non-economic interest - for example, its 
interest in encouraging open housing— does not deprive the 
organization of standing ' and that the organizations allege 
such injury here: 'resources devoted to checking the ads 
and then neutralizing the ads' adverse impact on buyers 
and renters ...'

The Petitioner's Brief mis-cites the holding in 
Village o f Bellwood v. Dwivedi, 895 F. 2d 1521 (7th Cir. 
1990). The holding in that case was not that a mere 
'deflection of time and money from counseling to legal 
efforts is sufficient injury to confer standing.' Rather the 
Seventh Circuit held that the organization's efforts to 
investigate steering were sufficient injury in fact to confer 
standing. Hookers v. Weathers , 990 F. 2d 913 ( 6th Cir.



8

1993) did not hold that a mere 'deflection of time and 
money from counseling to legal efforts alone is sufficient 
injury to confer standing.' Rather, the appeals court 
reversed the trial court's margin order, noting , "From the 
meager record before us we see no evidence that plaintiffs 
lack standing.'

Last, petitioners cite Louisiana Acorn Fair Housing v. 
LeBlanc, 211 F.3d 298 (5th Cir. 2000) as evidence of a 
'split.' There, $10,000 in punitive damages were awarded 
to the individual plaintiff denied an apartment because of 
race. The Court of Appeals vacated the punitive damages 
award, noting that under state law, punitive damages are 
prohibited when there is no compensatory damages 
award. The appeals court vacated the compensatory 
damages awarded to ACORN for its expenses of 
investigating the complaint of discrimination and noted 
that an ' organization can have standing if it has proven a 
drain on its resources', but ruled that ACORN did not 
prove'drain on its resources'and thus had no standing 
to sue.

Respondents contend that ACORN was wrongly 
decided by the Fifth Circuit's failure to properly apply the 
Havens standard of diversion of resources to the facts of 
the case. The Fifith Circuit's coming to a different result 
as to ACORN's standing, on different facts, does not 
mandate a grant of certiorari in Alexander.

As further proof of a split, Petitioners cite to an 
inapposite Title VII case, Fair Employment Council o f Greater 
Washington v. BMC Marketing 28 F. 3d 1268 (D. C. Cir.
1994) ( fair employment organization has no standing to 
sue under 42 USC 1981 and Title VH for its sua sponte 
'self-referred' investigation of racially motivated refusals 
to h ire.) Petitioners fail to point out to this Court that the 
appeals court noted "...neither of the federal (employment) 
statutes that (plaintiffs) invoke give tester plaintiffs a 
cause of action for damages, and they lack standing to 
seek other forms of relief in this case..."



9

The Third Circuit's Decision Properly Recognizes that 
Landlords' Statutory Violations of the Fair Housing Act 
renders Landlords Liable for Damages Caused by the 

Violations of Plaintiffs' Rights

Racial discrimination is a "fundamental injury to 
the individual rights of a person," Goodman v. Lukens Steel, 
482 U.S. 656, 661, 96 L. Ed. 2d 572, 107 S. Ct. 2617 
(1987), and the inability to buy or lease real property can 
be considered one of the badges and incidents of slavery. 
See The Civil Rights Cases, 109 U.S. 3, 22-23, 27 L. Ed. 
835, 3 S. Ct. 18 (1883) The complaints filed by 
respondents Alexander and FHP are statutory forms of 
action alleging statutory violations. The Fair Housing Act 
provides that "an aggrieved person may commence a civil 
action... to obtain appropriate relief with respect to such 
discriminatory housing practice or breach." 42 U.S.C. @ 
3613(a)(l)(a).The Fair Housing Act defines 
"discriminatory housing practice," 42 U.S.C. @ 3604, as 
follows:

(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, sex, familial status, or national origin.

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

The plain language of the Fair Housing Act thus 
permits an 'aggrieved person' to obtain damages and relief 
for the discriminatory housing practice or breach. Such 
person must prove only that a landlord did one of the 
unlawful acts listed in section 3604 , then prove the 
damages suffered. Dobbs on Remedies , Sec. 3.11 at 279 
notes, '...Damages means harm or loss suffered by a 
Plaintiff. The harm may be more or less than the damages 
awarded ...' "...Substantial damages may be permitted in 
dignitary torts such as batteries .. or for denial of 
important rights like the right to vote ...' Dobbs, Sec. 7.4.

II.



10

The Third Circuit held that proof of a violation of 
the Fair Housing Act is sufficient to impose liability on the 
landlord-petitioners for whatever damages were caused to 
each Plaintiff. Absent a plaintiff's proof of 'actual in jury', 
nominal damages are mandatory to recognize a violation 
of a civil right. The jury found that Landlords violated 
Plaintiffs federal rights to be free from housing 
discrimination. This entitles each Plaintiff to be awarded 
such actual damages as are proven, and punitive 
damages.

Petitioners misapprehend what the Court of 
Appeals opinion says in Alexander , App. A at 12a. The 
court merely states that a statutory violation of the Fair 
Housing Act is a 'harm' which renders Landlord liable for 
damages caused thereby . A Plaintiff who proves a 
violation of the Fair Housing Act need not then also prove 
'legal harm: ' he or she need only prove that the statute 
was violated, and then prove what damages were caused 
thereby. In so ruling, the Court of Appeals was faithful to 
its own precedent in Basista v. Weir, 340 F. 2d 74, 87 
(allowing punitive damages without actual damages' for 
false arrest in violation of 42 USC 1983, rejecting a state- 
law tort requirement that Plaintiff prove ' actual harm' or 
actual injury before being entitled to punitive damages)

Petitioners erroneously imply that Alexander is 
inconsistent with Carey v. Piphus , 435 U. S. 247, 266- 
267 (1978). The Carey Court held that nominal damages 
could be awarded to recognize violation of the right to due 
process, without proof of actual injury, because the right to 
procedural due process is absolute . . . "Under the Fair 
Housing Act, the right to fair housing opportunity is 
absolute. If Plaintiff proves that Defendant violates the 
Fair Housing Act, the aggrieved persons is entitled to 
recover the damages which are proved to be caused 
Such a result is completely consistent with the Supreme 
Court's analysis in Carey.

Petitioners then call the Court's attention to a string 
of old and new Title VII cases such as McDonnell Douglas 
v. Green , 411 U.S.792 (1973) through Reeves v. Sanderson 
Plumbing Products , Inc. 120 S.Ct. 2097 (2000) and claim 
without further explanation that Alexander 'contradicts all 
of these decisions of this Court ... ' Brief at 12.



11

Petitioners then claim that Alexander 'severs the causation 
link' in discrimination cases , resulting in 'unprecedented 
expansion of liability' . Brief p. 17

This excoriation of the third Circuit's opinion is 
perplexing and uncalled for. Upon proof of a violation 
of Title VII, Plaintiff adduces proof that Employer's 
discrimination caused Plaintiff some damages such as 
lost promotion , back pay or emotional distress . The 
recent 1991 amendments to title V II, 42 USC 1981a (1991) 
create a claim for compensatory and punitive damages for 
violation of Title VH , and render Employer liable for 
violation of the law even if Employer proves it would have 
made the ' same decision' . Under either Title VH or Title 
Vin, proof is is the same: once Plaintiff proves that a 
Defendant commits unlawful discrimination in violation of 
the statute, Plaintiff proves what damages are 'caused 
by' the discriminatory act and what redress is 
appropriate. The Alexander Court held that it is plain 
error to require a Title VUI plaintiff to prove ' legal 
harm' or 'insubstantial actual injury' before being entitled 
to compensatory or nominal damages.

In a last effort to show a 'split within the Circuits/ 
the defendants cite an inapposite Title VH case, Walker 
v. Anderson Elec. Connectors, 944 F. 2d 841 (11th Cir. 
1991) a Title VH sexual harassment case arising prior to 
the 1991 amendments . In Walker, under then-existing law, 
a plaintiff subject to sexual harassment had no entitlement 
to compensatory or punitive damages . Walker failed to 
prove any back pay loss 'caused' by Employer's 
discrimination. Walker merely stands for the proposition 
that where Walker failed to request nominal damages at 
trial, failed to prove actual damages, and failed to file 
post trial motions claiming a entitlement to nominal relief, 
Plaintiff had waived claims for nominal relief, and was not 
entitled to a verdict.

DL
Punitive Damages Can Be Awarded for 

Violations of Federal Civil Rights Absent an 
Award of Actual Damages

Petitioners challenge the decision of the Third 
Circuit Court of Appeals remanding for a new trial on



12

punitive damages. This matter is not ripe for issuance of a 
writ of certiorari to the Third Circuit until after the trial on 
punitive damages. Should Landlords prevail and defeat 
punitive damages , the punitive damages question in this 
case will be moot.

The decision of the Third Circuit Court of Appeals 
remanding for a new trial on punitive damages properly 
relies upon the legislative history and the plain language of 
the Civil Rights Act of 1968, 42 USC 3601 et seq. Plain 
language of the damages provision of the Fair Housing 
Act. 42 U.S.C. @ 3613(c) is as follows:

(1) In a civil action under subsection (a) of this 
section, if the court finds that a discriminatory 
housing practice has occurred . . . , the court may 
award to the plaintiff actual and punitive damages, 
and . . . may grant as relief, as the court deems 
appropriate, any permanent or temporary injunction, 
temporary restraining order, or other order (including 
an order enjoining the defendant from engaging in 
such practice or ordering such affirmative action as 
may be appropriate).

A Court has the duty to "give effect, if possible, to 
every clause and word of [the] statute. . . . "  Bennett v. 
Spear, 520 U.S. 154, 173, 117 S. Ct. 1154, 137 L. Ed. 2d 
281 (1997). An award of punitive damages is not 
conditioned upon an award of actual damages under the 
plain language of this statute, and the third Circuit so 
found.

Petitioners cite two circuit opinions, the 5th 
Circuit's Louisiana ACORN , supra at 8, and the 4th 
Circuit's People Helpers Foundation v. City o f Richmond , 12 
F. 3d 1321, 1327 (4th Cir. 1993) Both courts set aside 
punitive damage awards under title VUI because no 
compensatory damages were awarded. The court in 
Louisiana ACORN concluded that punitive damages were 
not available for mere 'statutory violations ' of Title VUI 
civil rights. People Helpers refused to allow punitive 
damages for a Title VIII civil rights violation , noting that 
Virginia state law precluded an award of punitive 
damages without actual damages. The ACORN panel 
rejected the logic of Peoples Helpers, noting that the basis



13

for its holding is 'flawed.' Quoting the 'flawed logic' 
rejected by ACORN, Petitioners now argue that state law 
controls entitlement to punitive damages for federal civil 
rights violations.

Petitioners unfairly accuse the Third Circuit ' 
without explanation' of finding that punitive damages 
can be awarded without compensatory damages, and then 
omit all mention of the Court's discussion at App. A, at 
18a of Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965) 
(upholding award of punitive damages for violation of due 
process rights under 42 U.S.C. 1983 without any award of 
compensatory damages.)

Petitioners argued in their Brief to the 3rd Circuit 
that punitive damages can never be awarded at all, absent 
compensatory damages, for any federal civil rights 
violations whatsoever. App A at 18a. But Petitioners then 
conceded before the 3rd Circuit that under Basista it is 
appropriate to award punitive damages without 
compensatory damages for 'constitutional' violations 
under 42 USC 1983. ACORN applied 5th Circuit 
precedent to hold that punitive damages are 
unavailable for mere 'statutory' violations of Title VIE. 
That holding, while erroneous, does not provide 
grounds for granting a writ of certiorari in this case.

IV.

Vicarious Liability of a Principal for Punitive 
Damages for His Managerial Agent's Discrim­
ination in Derogation of a Non-delegable Duty

Petitioners make a peculiar argument that the issue 
here is 'whether a husband is vicariously liable for acts of 
his wife.' Petitioners fail to mention Section 217C(c), 
Restatement o f the Law (Second) o f Agency which sets forth 
the liability of a principal for punitive damages for acts of 
his managerial agent which violate a nondelegable duty. 
The Court of Appeals applied this standard tenet of 
agency law, holding that the principal Joseph Riga is liable 
for punitive damages for violations of his nondelegable 
duty not to discriminate by acts committed by his 
managerial agent, Maria. The Court of Appeals found that 
Maria Riga's conduct displays sufficient 'malice and



14

reckless indifference' to support punitive damages. App. 
A at 20a.

The Third Circuit noted that the defenses to 
liability under Title VH enunciated in Kolstad v. American 
Dental Association, 527 U.S. 526 (1999) do not even pertain 
to this case. Petitioners nevertheless claim that the 
Circuit's decision ' takes Kolstad to an unwarranted 
extreme..'; Petitioners beg the Supreme Court to intervene 
'before it is too late.'

Petitioners cite to Smith v. Wade, 461 U.S. 30, 56 
(1983) and argue that Maria Riga did not display 
sufficient' reckless or callous indifference' to federal rights 
by lying and refusing to deal with Afro-Americans on ten 
separate occasions for two months. In fact far less 
egregious conduct has supported an award of punitive 
damages under civil rights law. In this case, the record is 
replete with evidence that landlord-husband delegated his 
all managerial authority to his wife. She was authorized 
to sign his letters , deposit all checks and make all 
decisions dealing with rental of their six apartment 
buildings including decisions to repeatedly refuse to deal 
with Afro-Americans. Under 217C(c) Restatement o f 
Agency, acts of a managerial agent in derogation of a 
nondelegable duty can render a principal liable. This 
question is not one which is necessary for this Court to 
review.

CONCLUSION

A panel of the Third Circuit Court of Appeals 
correctly held that a fair housing organization which 
proved diversion of its resources for investigating and 
countering race discrimination in housing has standing to 
sue for damages and redress for violations of the Fair 
Housing Act which its investigation revealed. The Third 
Circuit's conclusion does not warrant review because it 
correctly applied the Supreme Court's decision in Havens 
Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 
L.Ed. 2d. 214 (1982). The cases relied upon by
Petitioners to justify grant of the writ of certiorari on 
grounds of conflict in the Circuits can be differentiated 
from the instant case based upon the particular facts of 
record.



15

Petitioners' misreading of the Third Circuit's 
opinion causes them to claim that the Third Circuit has 
enunciated a new rule on causation, when in fact the lower 
Court's decision is in completely in accord with years of 
precedent. The Court of Appeals also correctly applied 
precedent to hold that under the plain language of the Fair 
Housing Act, an award of punitive damages need not be 
preceded by any award of actual damages. A writ of 
certiorari is premature in this case, because no trial on 
punitive damages has been held, and the punitive 
damages issue may be moot after a trial.

Last, a writ of certiorari is inappropriate where the 
Court of Appeals, applying well-established agency 
principles, held that a principal with a non-delegable duty 
not to discriminate under the Fair Housing Act can be 
vicariously liable for punitive damages for acts of housing 
discrimination committed by his managerial agent. The 
petition for writ of certiorari to the Court of Appeals for 
the Third Circuit should be denied.

Respectfully submitted,

Caroline A. Mitchell
Counsel o f Record
3700 Gulf Tower, 707 Grant St.
Pittsburgh, PA 15219
(412) 232-3131
cmitcpghpa@aol.com

Timothy P. O'Brien 
1705 Allegheny Bldg.
429 Forbes Avenue 
Pgh. PA 15219 
412-232-4400 
Attorneys for Respondents

mailto:cmitcpghpa@aol.com