Alexander v. Riga Brief for the United States as Amicus Curiae Supporting Appellants Urging Reversal

    No. 98-3597

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

RONALD ALEXANDER, et al.,
Plaintiffs-Appellants 
v.

MARIA A. RIGA, et al.,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING APPELLANTS URGING REVERSAL

BILL LANN LEE
Acting Assistant Attorney General

JESSICA DUNSAY SILVER 
REBECCA K. TROTH 

Attorneys
Department of Justice 
P.O. Box 66078
Washington, D.C. 20035-6078 
(202) 514-4541

AS FILED NO.—
A -.I3 -IJX  b y !

memrt



Caroline M itchell
Attorney & Counsellor at Law 

3700 Gulf Building 

707 Grant Street

Pittsburgh, P  ennsylvama U.S.A . 15219-1913

412-232-3131 
Fax 412-456-2355

email - cmitcpghpa@aol.com

Ju n e  14, 1999

Steve R alston, E squire  
NAACP Legal Defense and  

E ducationa l F und , Inc.
99 H udson  Street, Suite 1600 
New York, NY 10013

D ear Mr. R alston an d  Ms. Troth:

Rebecca K. T roth, E squire  
D epartm en t of Ju s tic e  
P.O. Box 66078 
W ashington, DC 20035-6078

I am  pleased to enclose for Legal Defense F u n d ’s u se  a copy of the  
am icus filed by the  U.S. D epartm ent of Ju s tic e  and  I am  forw arding a 
copy of the  Legal Defense F u n d ’s b rief to Rebecca Troth. T h an k  you so 
m u ch  for your respective briefs. I am  su re  the  Third C ircuit will be m ost 
in te res ted  in  the  am ici’s  views on these  im portan t issues.

Best regards,

Caroline M itcfiett

Caroline Mitchell

cm /p ink

E nclosure  - Copies of Brief

mailto:cmitcpghpa@aol.com


TABLE OF CONTENTS

PAGE
STATEMENT OF THE I S S U E S ......................................... 1
IDENTITY AND INTEREST OF THE UNITED STATES AS

AMICUS CURIAE .............................................. 1
STATEMENT OF THE C A S E ..............................................2

A. Proceedings Below .....................................  2
B. Statement Of F a c t s .................................... 4

SUMMARY OF ARGUMENT............................................11
ARGUMENT:

I. THE DISTRICT COURT ERRED AS A MATTER OF LAW
IN REFUSING TO SUBMIT THE ISSUE OF PUNITIVE 
DAMAGES TO THE J U R Y ................................... 13
A. Punitive Damages Serve Important Statutory-

Purposes .......................................... 1 3

B. No Finding Of Outrageous Conduct Is
Required For A Jury To Consider Punitive 
D a m a g e s .......................................... 1 4

C. Punitive Damages Can Be Awarded Absent An
Award Of Compensatory D a m a g e s .................. 18

II. PLAINTIFFS ARE ENTITLED TO A HEARING ON
INJUNCTIVE R E L I E F ................. •.................  22

C O N C L U S I O N .................................................... 2 5
CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES
CASES:

Asbury v. Brougham. 866 F.2d 1276 (10th Cir. 1989) ......... 18
Basistfl V. Weir, 340 F .2d 74 (3d Cir. 1965) . . .  15, 19, 20, 21 
Beacon Theatres. Inc, v. Westover, 359 U.S. 500 (1959) . . .  24

i



CASES (continued): PAGE
Bolden v. Southeastern Pennsylvania Transo. Auth_.__(..SEPTA) ,

21 F . 3d 29 (3d Cir. 1994) ..............................  15
Burnett v. Grattan. 468 U.S. 42 (1984) ...................... 15
Campos-Orrego v. Rivera. No. 98-1318, 1999 WL 254470

(1st Cir. May 4, 1 9 9 9 ) ................................... 21
Fountila v. Carter. 571 F.2d 487 (9th Cir. 1978) ........... 20
Hennessv v. Penril Datacomm Networks._Inc •, 69 F.3d 1344

(7th Cir. 1995)   20
Keenan v. Philadelphia. 983 F.2d 459

(3d Cir. 1 9 9 2 ) ............................................ 17
LeBlanc-Sternberg v. Fletcher. 67 F.3d 412 (2d Cir. 1995),

cert, denied, 518 U.S. 1017 (1996) ...............  21, 23
Louisiana v. United States. 380 U.S. 145 (1965).............  22
Marable v. Walker. 704 F.2d 1219 (11th Cir. 1 9 8 3 ) ........... 23
Miller v . Apartments & Homes of New Jersey._Inc.,

646 F . 2d 101 (3d Cir. 1981) ........................19, 22
People Helpers Found.._Inc. v. Richmond,

12 F . 3d 1321 (4th Cir. 1 9 9 3 ) ..........................  21-22
Raain v. Harry Macklowe Real Estate Co., 6 F.3d 898

(2d Cir. 1 9 9 3 ) ............................................ 18
Rogers v. Loether. 467 F.2d 1110 (7th Cir. 1972),

aff'd on other grounds, sub nom Curtis v. Loether,
415 U.S. 189 (1974) ................................. 19, 20

Rowlett V. Anheuser-Busch,_Inc.,, , 832 F.2d 194
(1st Cir. 1987)   17

Samaritan Inns, Inc, v. District of Columbia. 114 F.3d
1227 (D.C. Cir. 1997)   18

Sandford v. R. L, Coleman Realty Co.. 573 F.2d 173
(4th Cir. 1978)   23

Savarese v. Acriss. 883 F.2d 1194 (3d Cir. 1989) . . 15, 16, 17
Smith v. Wade. 461 U.S. 30 (1983)...........................passim

li



CASES (continued): PAGE
Sullivan v. Little Hunting Park. Inc.. 396 U.S. 229

(1969)....................................................  15
Temple Univ. v. White. 941 F.2d 201 (3d Cir. 1991),

cert, denied, 502 U.S. 1032 (1992).....................  23
Timm v. Progressive Steel Treating. Inc.. 137 F.3d 1008

(7th Cir. 1998)   21
United States v. Balistrieri. 981 F.2d 916 (7th Cir. 1992),

cert, denied, 510 U.S. 812 (1993) .................  17, 18
United States v. Yonkers Bd. of Educ.. 837 F.2d 1181

(2d Cir. 1987), cert, denied, 486 U.S. 1055 (1988) . . .  22
United States v. Paradise. 480 U.S. 149 (1987) .............  22

STATUTES:

Fair Housing Act, 42 U.S.C. 3601, seq................. passim
42 U.S.C. 3612 (a)  2
42 U.S.C. 3612 (c)  2
42 U.S.C. 3612 (o* ( 3 ) ........................................ 2
42 U.S.C. 3 6 1 3 ...............................................2
42 U.S.C. 3613 (c) .................................2, 12, 14
42 U.S.C. 3 6 1 4 ...............................................2
42 U.S.C. 3614(d)   2

Social Security Act, 42 U.S.C. 1396, £t seq. ............... 23
42 U.S.C. 1982 ................................................  22
42 U.S.C. 1983 ............................................ passim

LEGISLATIVE HISTORY:

H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988) ......... 13, 14

RULES:
Fed. R. App. P. 2 9 ( a ) .......................... ................. 2

- iii -



MISCELLANEOUS: PAGE
Robert G. Schwemm, Housing Discrimination: Law and

Litigation § 25.3(2)(b) (1990 & Supp. 1997) . 12, 14, 22-23
9 WRIGHT & MILLER, Federal Practice and Procedure:

Civil 2d § 2338 (2d ed. 1994) ..........................  24

IV



IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

No. 98-3597
RONALD ALEXANDER, et al.,

Plaint if fs-Appe Hants 
v .

MARIA A. RIGA, et al.,
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING APPELLANTS URGING REVERSAL

STATEMENT OF THE ISSUES
The United States will address the following issues:
1. Whether the district court erred in refusing to submit 

the issue of punitive damages to the jury after the jury found 
that defendants had discriminated on the basis of race in 
violation of the Fair Housing Act, 42 U.S.C. 3601, £t seq.. but 
awarded neither compensatory nor nominal damages.

2. Whether the district court erred in refusing to hear 
evidence on plaintiffs' request for injunctive relief after the 
jury found that defendants had discriminated on the basis of race 
in violation of the Fair Housing Act, 42 U.S.C. 3601, seq.

IDENTITY AND INTEREST OF THE UNITED STATES AS AMICUS CURIAE
The Attorney General is responsible for all federal court 

enforcement of the Fair Housing Act by the United States. Under



- 2 -

42 U.S.C. 3614, the Attorney General is authorized to bring an 
action alleging a pattern or practice of discrimination in 
violation of the Fair Housing Act. In such an action, the United 
States is authorized to seek injunctive relief and monetary 
damages on behalf of persons aggrieved by such discrimination.
See 42 U.S.C. 3614(d). In addition, if an individual elects 
under 42 U.S.C. 3612(a) to pursue a charge of discrimination in a 
civil action, pursuant to 42 U.S.C. 3612(o), the Secretary of 
Housing and Urban Development shall authorize the Attorney 
General to file a civil action on behalf of the aggrieved person. 
In such a case, the United States is authorized to seek the same 
equitable and monetary relief on behalf of any aggrieved person 
that such individual could obtain in a private suit under 42 
U.S.C. 3613, including "actual and punitive damages." 42 U.S.C. 
3612(o)(3), 3613(c). The issues in this case involve the scope 
of relief available under the Act and their resolution will 
affect the Attorney General's enforcement program. The United 
States files this brief pursuant to Fed. R. App. P. 29(a).

STATEMENT OF THE CASE
A. Proceedings Below
In January 1996, plaintiffs Ronald and Faye Alexander and 

the Fair Housing Partnership of Greater Pittsburgh, Inc. (FHP) 
sued apartment owners Joseph and Maria Riga for discriminating 
against them in the rental of an apartment in violation of the



-3-
Fair Housing Act, 42 U.S.C. 3601 (App. 19-30).17 The complaint 
sought compensatory and punitive damages, along with declaratory 
and injunctive relief. Plaintiffs repeated their request for the 
various forms of relief in Plaintiffs' Amended Pretrial Narrative 
Statement (filed May 23, 1997) (R. 33). The Statement contains a
one-page description of the equitable relief sought, including an 
order requiring the posting of fair housing notices and a cease 
and desist order prohibiting defendants from discriminating on 
the basis of race.

After eight days of trial, on May 22, 1998, the jury
answered a set of special interrogatories and found that 
defendant Maria Riga had discriminated against the Alexanders 
(Tr. 902-903).2/ The jury, however, declined to award 
compensatory or nominal damages and found that Maria Riga's 
discriminatory conduct was not "a legal cause of harm to the 
plaintiff [s] " (Tr. 902-904). The jury also found that Maria Riga 
had discriminated against the FHP but again declined to award any 
damages, although it did find that Maria Riga's actions were "a 
legal cause of harm" to the FHP (Tr. 903-904) . The court, having 
bifurcated the deliberations for the purpose of considering 
punitive damages, then refused to submit to the jury the issue of

i7 "App. __ " refers to the appendix filed by appellants.
"Tr. __" refers to the trial transcript. "Mem. Op. __" refers to
the Memorandum opinion the district court entered on October 13, 
1998, which is found at page 940 of appellants' appendix.
"R- __ " refers to entries in the district court docket sheet.

J  Maria Riga's husband, Joseph, is the co-owner of the 
apartment building but was out of the country during the events 
at issue in this case (Tr. 509).



-4-
punitive damages (Tr. 907). The court entered judgment in favor 
of the defendants (R. 80).

On May 28, 1998, plaintiffs filed post-trial motions:
M) to enter a judgment notwithstanding the verdict, to issue an 
additur of nominal damages in the amount of one dollar for each 
plaintiff, or to grant a new trial on compensatory, punitive, and 
nominal damages or, in the alternative, award punitive damages as 
a matter of law against both Maria and Joseph Riga; (2) for a 
hearing on injunctive relief; (3) for attorney's fees, costs and 
expenses; and (4) to grant plaintiffs judgment as a matter of law 
(App. 921-938). Defendants moved to 'tax costs against the 
plaintiffs (R. 87).

On October 13, 1998, the district court denied the 
plaintiffs' motions except for the FHP's motion to have judgment 
entered in its favor, denied defendants' motion to tax costs, and 
entered judgment (App. 939, 961-962). Plaintiffs filed a timely 
notice of appeal on November 5, 1998 (App. 3).

B . Statement Of Facts
1. Ronald and Faye Alexander are a black couple who began 

apartment hunting in September 1995 (Tr. 8, 367-369) . On 
September 17, 1995, Faye Alexander saw an advertisement in the 
Sunday newspaper for an apartment at 5839 Darlington Road in the 
Squirrel Hill area of Pittsburgh, which is a predominantly white 
neighborhood (Tr. 9-10, 15, 697). After making an appointment to 
see the apartment at noon on Monday, September 18, the Alexanders 
changed the appointment to 1:00 (Tr. 9-18). The Alexanders



-5-
arrived a few minutes early and waited for the apartment's co­
owner, Maria Riga, who is white (Tr. 16-17, 375-376). Ms. Riga 
and her husband owned the entire building on Darlington Road, 
which had four apartments in addition to the one at issue here 
(Tr. 506-507). When Ms. Riga arrived, she walked up to the 
Alexanders' car and said they should not have changed the 
appointment since they had "just missed the apartment" (Tr. 18). 
Although Ms. Riga said she had tried to call to tell them, there 
was no message on their answering machine or a number on the 
Caller I.D. when they got home (Tr. 19-20, 379).

Over the next several weeks, Maria Riga continued to 
advertise the apartment at 5839 Darlington Road in the Sunday 
newspapers. At the same time, Ms. Riga repeatedly denied the 
apartment was available in response to the Alexanders' inquiries. 
After seeing the same advertisement in the newspaper on Sunday, 
September 24, 1995, they began to suspect that Maria Riga had
lied to them about the apartment's availability (Tr. 21-22, 381- 
382). On Tuesday, September 26, Ronald Alexander called a 
friend, Robin McDonough, to see if she would check on the 
apartment (Tr. 383-384). Robin McDonough is white (Tr. 202-204) 
Ms. McDonough reported to Alexander that when she called the 
number in the advertisement, Ms. Riga told her the apartment was 
available and made an appointment to show it to her, which 
McDonough later canceled (Tr. 202-205, 383).

On that same Tuesday, September 26, Ronald Alexander called 
Maria Riga and left a message using a different name, James



- 6 -

Irwin, because he thought it would allow him to determine if Riga 
was being honest with him (Tr. 383-384) . A woman called back and 
Alexander made an appointment, as James Irwin, to see the 
apartment on Friday, September 29, at 11:30 (Tr. 384-385). When 
he got to the apartment building that morning, Alexander saw an 
"Apartment for Rent" sign in front and Maria Riga sitting on the 
top porch step (Tr. 389-391). As he walked up to her, Alexander 
said he was James Irwin and that he had an 11:30 appointment (Tr. 
391). Maria Riga responded that she had come "all this way" but 
had forgotten her keys (Tr. 392). Alexander asked if he could 
reschedule and Maria said yes, and that he had her number (Tr. 
392-393). Alexander, however, could see that she had covered up 
a set of keys with her hand as he was standing there and as he 
walked away, he heard the keys scrape as she got up and entered 
the building (Tr. 392-394). Alexander called and left messages 
asking to reschedule but Riga never called back (Tr. 395-397).

Before his appointment at the apartment that morning, 
Alexander had met with an attorney, Caroline Mitchell (Tr. 385). 
After the incident with the keys, Alexander called Mitchell to 
report what had happened (Tr. 394). Alexander and Mitchell spoke 
later in the afternoon with Andrea Blinn, the testing coordinator 
of the Fair Housing Partnership of Pittsburgh, Inc. (FHP) (Tr. 
48-49, 60, 394) .

As a result of that conversation, Andrea Blinn of the FHP 
arranged to have a test of Ms. Riga's practices to see whether 
she was discriminating against potential renters on the basis of



-7-
race (Tr. 60-61). FHP was concerned about the report of alleged 
discrimination in Squirrel Hill, a predominantly white area, 
because such an "unchecked act of discrimination, though it may 
be small, can have a very strong impact upon the overall 
S0gi-ega.tion in our community" by discouraging other black people 
from seeking housing in that area (Tr. 697-698).

One of the testers was a white male, Dennis Orvosh, and the 
other was a black female, Daria Mitchell (Tr. 62). Both testers 
made appointments for the next day, September 30 (Tr. 67-69). 
Dennis Orvosh appeared for his appointment at 11:00 (Tr. 264- 
265). He met Maria Riga, who showed him the apartment and said 
it was available immediately (Tr. 268). Orvosh told Maria Riga 
that he would talk to his wife about the apartment and would get 
back to her if they wanted to rent the apartment or see it again 
(Tr. 268). At Andrea Blinn's request, he called Maria Riga back 
on Monday, October 2, to make another appointment to see the 
apartment (Tr. 269-270). Ms. Riga confirmed it was still 
available (Tr. 270). Orvosh then called the next day to cancel 
the appointment, after confirming again that it was still 
available (Tr. 271).

Daria Mitchell, the black tester, made an appointment to see 
the apartment at 1:00 on Saturday, September 30, but arrived at 
1:24 because she had the wrong address (Tr. 295-302) . Ms. 
Mitchell called and rescheduled the appointment for 5:30 that 
afternoon (Tr. 302). When Daria Mitchell arrived at the 
apartment at 5:30, she saw Maria Riga talking with a white male



- 8 -

(Tr. 303). Maria Riga told Daria Mitchell that the man's name 
was Jeff and that he had filled out an application for the 
apartment (Tr. 303). Riga showed Mitchell the apartment but told 
her that Jeff was "going to get the apartment" (Tr. 304). Riga 
promised Mitchell that "if anything became available, she would 
call [her]" (Tr. 304-305).

The man with whom Maria Riga was speaking when Daria 
Mitchell arrived was Jeffrey Lang, a private detective Caroline 
Mitchell had hired (Tr. 139-147, 197-198). On that Saturday, 
September 30, 1995, Lang called the number in the September 24 
advertisement for the Rigas' apartment and a woman, who 
identified herself as Carla, returned his call (Tr. 143-145) .
He made an appointment to see the apartment and when he arrived 
at about 5:00, the woman who had said she was "Carla" admitted 
her name was Maria Riga (Tr. 151-156) . Riga showed him the 
apartment (Tr. 151-156) . Although he had not asked for one, Riga 
gave Lang a rental application and said she wanted him to move in 
(Tr. 157-162) . Lang never said he intended to rent the apartment 
but said only that it was nice and that he would like his wife to 
see it (Tr. 169, 183-184).

As Lang was leaving, he and Riga saw Daria Mitchell coming 
toward the building (Tr. 166). Lang asked Riga "if this was the 
5:30 appointment and Maria rolled her eyes and went on to state 
that it was and that this woman was, quote, driving me up a wall, 
unquote" (Tr. 166). Maria Riga then said that she would "have to 
tell" Ms. Mitchell that she had given him an application (Tr.



-9-
166). When Ms. Mitchell walked up onto the porch, Maria Riga 
told Ms. Mitchell in a "harsh" tone that "I'll show you the 
apartment, but I already gave this gentleman an application" (Tr. 
167-168). Even though Daria Mitchell had asked Maria Riga to let 
her know if the apartment became available, Riga never called 
Mitchell to let her know that Lang had not rented the apartment 
and that it was still available (Tr. 303-305) .

An advertisement for the apartment was again in the 
newspaper on Sunday, October 1 (Tr. 397-398). Ronald Alexander 
called again, identified himself as James Irwin and asked if the 
apartment was still available (Tr. 398). Maria Riga said it had 
been rented (Tr. 398), contrary to her representations to Orvosh 
on October 2 and 3 (Tr. 270-271). When Alexander said he liked 
the building and asked her to call him if space became available, 
Riga said she would take his number but that she did not 
anticipate any apartments becoming available soon (Tr. 399).
After leaving several more messages that were .not returned, 
Alexander reached Riga later that week. She again denied there 
was an apartment available (Tr. 404-408) .

The Alexanders saw yet another advertisement for the 
apartment in the Sunday paper on October 8, and Ronald Alexander 
called using his real name (Tr. 410). This time, Maria Riga said 
that she had placed the ad prematurely since the people had not 
vacated the apartment and it was not available to be seen (Tr. 
410). At Ronald Alexander's request, Robin McDonough called Riga 
about the apartment to see if Riga was "discriminating against the



- 10 -

Alexanders because they were black (Tr. 411). McDonough called 
Maria Riga and arranged to see the apartment on October 9 (Tr. 
206-207, 412-413). Maria Riga showed Robin McDonough the vacant 
apartment the next day and said that it was available immediately 
(Tr. 208). Maria Riga's treatment of McDonough was "cordial"
(Tr. 208) .

Maria Riga continued to place ads for the apartment through 
the first week of November (Tr. 595). She finally rented the 
apartment to a couple on November 18, 1995 (Tr. 363-364, 748;
Exh. 23). Mr. Sinha, the husband, was from India, and the wife 
evidently was not a member of any minority group (Tr. 742). At 
trial, Maria Riga denied she had ever seen the Alexanders or had 
any appointments with them (Tr. 556-560, 596, 738)

2. In denying the Alexanders' request to submit the 
punitive damages issue to the jury, the district court found that 
punitive damages were precluded because the jury's refusal to 
award damages showed that it "did not consider the conduct of 
Mrs. Riga to have been the result of an evil motive or intent or 
to have involved .reckless or callous indifference to the 
federally protected rights of plaintiffs." Mem. Op. at 10 (App. 
949). In the court's view, it thus "would be inappropriate to 
permit the jury to award punitive damages to them." Mem. Op. at 
10 (App. 949). The court also held that more than intentional 
discrimination is required for the jury to enter punitive damages 
-- that "outrageous conduct on the part of Mrs. Riga 'beyond that 
which may attach to any finding of intentional discrimination'"



- 11 -

was required. Mem. Op. at 11 (App. 950). It was significant in 
the court's view that "Mrs. Riga's conduct did not cause [Faye 
Alexander] to cry, to become ill, to suffer any emotional 
distress or to seek medical or psychological care, and Mr. • 
Alexander testified that, although he suffered emotional distress 
as a result of Mrs. Riga's conduct, he sought no medical 
attention or psychological counseling." Mem. Op. at 11 (App.
950) .

The court denied plaintiffs' request to present evidence on 
the need for injunctive relief, asserting that plaintiffs had 
waived the request because, although it had been a significant 
portion of the complaint and the pretrial statement, plaintiffs 
had not repeated the request until six days after the jury trial. 
Mem. Op. at 15 (App. 954). The court also found that even if 
plaintiffs had not waived the request, there was no need for 
injunctive relief since there was no evidence of a continuing or 
recurrent violation. Mem. Op. at 16 (App. 955). Plaintiffs 
filed a notice of appeal on November 5, 1998 (App. 3).

SUMMARY OF ARGUMENT
The jury found here that Maria Riga had intentionally 

discriminated against Faye and Ronald Alexander because they were 
black, and the evidence showed a calculated pattern of repeatedly 
refusing to show the apartment or give truthful information to 
black potential renters. Despite the jury verdict of liability 
for this pattern of blatant racial discrimination, the defendants 
will suffer no adverse consequences for the actions of Ms. Riga



- 12 -

because the district court refused to consider further relief. 
Thirty years after Congress declared racial discrimination 
unlawful and ten years after Congress amended the Act to 
strengthen enforcement (in part by eliminating the cap on 
punitive damages), this is an untenable result.

Punitive damages and injunctive relief are two of the most 
effective means of enforcing the Act and are intended to change 
the behavior of violators, as well as those who might violate the 
Act in the future. They are especially important in the context 
of the Fair Housing Act since " [m]ost fair housing cases do not 
involve major economic losses." Robert G. Schwemm, Housing 
Discrimination: Law and Litigation § 25.3(2) (b) at 25-19 (1990 & 
Supp. 1997). Under the language of the punitive damages 
provision of the statute, 42 U.S.C. 3613(c), and the standards 
governing the award of punitive damages under civil rights 
statutes, see Smith v. Wade. 461 U.S. 30 (1983), the court erred
in refusing to submit the issue of punitive damages to the jury. 
Similarly, the purposes of the Fair Housing Act to prevent and 
deter housing discrimination are frustrated by the court's 
erroneous refusal to even hear evidence on the need for equitable 
relief after a jury finding of intentional discrimination.



-13-
ARGUMENT

I
THE DISTRICT COURT ERRED AS A MATTER OF LAW 

IN REFUSING TO SUBMIT THE ISSUE OF 
PUNITIVE DAMAGES TO THE JURY

A. Punitive Damages Serve Important Statutory Purposes
In amending the Fair Housing Act in 1988, Congress found 

that, twenty years after the Act's passage, "discrimination and 
segregation in housing continue to be pervasive." H.R. Rep. No. 
711, 100th Cong., 2d Sess. 15 (1988). Congress cited several
regional studies that demonstrated that blacks continue to face a 
significant probability of being discriminated against in both 
housing sales and rentals. H.R. Rep. No. 711 at 15. Congress 
also cited a national study by the Department of Housing and 
Urban Development that concluded that "a black person who visits 
4 agents can expect to encounter at least one instance of 
discrimination 72 percent of the time for rentals and 48 percent 
of the time for sales." H.R. Rep. No. 711 at 15.

Congress concluded that in spite of the clear national 
policy articulated in the Act since 1968, the Act provided "only 
limited means for enforcing the law," which Congress viewed as 
"the primary weakness in existing law." H.R. Rep. No. 711 at 15. 
Weaknesses in the Act's enforcement by private parties included 
"lack of private resources" and "disadvantageous limitations on 
punitive damages." H.R. Rep. No. 711 at 16. As the House Report 
stated: " [t]he Committee believes that the limit on punitive 
damages served as a major impediment to imposing an effective



-14-
deterrent on violators and a disincentive for private persons to 
bring suits under existing law." H.R. Rep. No. 711 at 40. As a 
result, Congress amended the Act to remove the $1000 limitation 
on the award of punitive damages that had been part of the Act 
originally. The Act now provides, under 42 U.S.C. 3613(c), that 
"the court may award to the plaintiff actual and punitive 
damages." Such damages are intended to ensure effective 
enforcement and deterrence -- major purposes of the Fair Housing 
Act. These purposes are distinct from Congress' intent to 
compensate individuals for actual damages incurred as a result of 
discriminatory housing practices since it is often difficult to 
prove that substantial losses were caused by such discrimination. 
See Robert G. Schwemm, Housing Discrimination: Law and Litigation 
§ 25.3(2)(b) (1990 & Supp. 1997).

B. No Finding Of Outrageous Conduct Is Required For A Jury 
To Consider Punitive Damages_____________________________

The district court misconstrued the statutory provision 
allowing punitive damages when it held that such damages could 
not be awarded absent a showing of "outrageous" conduct that, for 
example, caused Faye Alexander to "cry, to become ill, [or] to 
suffer any emotional distress or to seek medical or psychological 
care." Mem. Op. at 11 (App. 950). The court confused the sort 
of evidence that would justify compensation for actual injury 
with the evidence required to support an award of punitive 
damages.

It is well-established that where a cause of action arises 
out of a federal statute, federal, not state, law governs the



-15-
scope of the remedy available to plaintiffs. Burnett v. Grattan.
468 U.S. 42, 47-48 (1984); Sullivan v. Little Hunting Park._Inc.,
396 U.S. 229, 240 (1969). The rationale for the rule is that 
Congress did not intend to subject the rights of individuals 
under federal remedial legislation to the vagaries of various 
state laws, which "would fail to effect the purposes and ends 
which Congress intended." Basista v. Weir. 340 F.2d 74, 86 (3d 
Cir. 1965) . Consistent with this principle, this Court has a 
"policy of striving for federal uniformity in the area of damages 
in civil rights cases." Savarese v. Agriss. 883 F.2d 1194, 1207 
(3d Cir. 1989). As they strive for such uniformity, courts "must 
bear in mind that the civil rights laws are intended in part to 
provide broad, consistent recompense for violations of civil 
rights." Bolden v. Southeastern Pennsylvania Transp. Auth.. 21 
F.3d 29, 35 (3d Cir. 1994) (citing Basista. 340 F.2d at 74).

In Smith v. Wade. 461 U.S. 30, 51 (1983), the Supreme Court
established the standard for the award of punitive damages for a 
deprivation of a federally protected civil right, and rejected 
the claim that the threshold showing required to submit the issue 
of punitive damages to a jury is higher than the standard for 
liability and compensatory damages. In an action under 42 U.S.C. 
1983, the Court held that a "reckless or callous disregard for 
the plaintiff's rights, as well as intentional violations of 
federal law, should be sufficient to trigger a jury's 
consideration of the appropriateness of punitive damages."



-16-
461 U.S. at 51 . 11 A plaintiff need not show ill will, evil 
purpose, or malicious intent to be entitled to punitive damages. 
See 461 U.S. at 48 ("punitive damages * * * may be awarded not 
only for actual intent to injure or evil motive, but also for 
recklessness [and] serious indifference to or disregard for the 
rights of others"); 461 U.S. at 51 (the district court did not 
err in not requiring "actual malicious intent"). Importantly, 
punitive damages, unlike compensatory damages, are "never awarded 
as of right, no matter how egregious the defendant's conduct."
461 U.S. at 52. The question whether to award such damages is 
left to the discretion of the jury. Ibid.

This Court has applied Smith v. Wade to requests for 
punitive damages under federal civil rights statutes and reversed 
a district court for applying a standard similar to the one the 
district court applied here. In Savarese v. Agriss. 883 F.2d
1194, 1204 (3d Cir. 1989), a 42 U.S.C. 1983 action, the district
court instructed the jury that plaintiffs had to show by a 
preponderance of the evidence that " [d]efendants have engaged in 
conduct that was so outrageous, so vicious, so intentionally 
harmful that they should be punished for that conduct." 883 F.2d 
at 1205. This Court reversed and held that the instructions

17 Application of the standard announced in Smith v. Wade in 
the context of punitive damages under 42 U.S.C. 1981a(b)(1) is at 
issue in the Supreme Court in Kolstad v. American Dental Ass'n. 
No. 98-208 (argued March 1, 1999). The United States filed an 
amicus brief in that case supporting petitioner and arguing that 
the standard of reckless indifference to federal rights contains 
no "outrageousness" requirement.



-17-
could have led the jury to believe that a reckless disregard of 
an individual's federally protected rights was insufficient to 
support an award of punitive damages. 883 F.2d at 1205.A/
In Keenan v. Philadelphia, 983 F.2d 459, 469-470 (3d Cir. 1992), 
this Court applied Smith v. Wade and upheld punitive damages in a 
Section 1983 action for discrimination, retaliation, and 
violation of First Amendment rights. This Court determined that 
defendants' repeated deliberate acts of discrimination based on 
sex "exhibited a reckless or callous disregard of or indifference 
to the rights of [the plaintiffs]" justifying the imposition of 
punitive damages. 983 F.2d at 470. This Court thus has rejected 
a requirement of egregious or outrageous conduct, finding that 
acts of intentional discrimination in deliberate or reckless 
disregard of plaintiffs' civil rights are sufficient to warrant 
punitive damages. Cf. Rowlett v. Anheuser-Busch. Inc.. 832 F.2d
194, 206 (1st Cir. 1987) ("[a]fter all, can it really be disputed 
that intentionally discriminating against a black man on the 
basis of his skin color is worthy of some outrage?").

While this Circuit has not had occasion to apply Smith v. 
Wade in the context of the Fair Housing Act, other courts of 
appeals have found its application appropriate there as well.
In United States v. Balistrieri. 981 F.2d 916 (7th Cir. 1992), 
cert, denied, 510 U.S. 812 (1993), the Seventh Circuit held in a

- Thus, although the district court here cited Savarese to 
support its refusal to submit the punitive damages issue to the 
jury, Mem. Op. at 10 (App. 949), the case in fact supports 
reversal of its ruling.



-18-
case involving housing testers that the district court erred in 
directing a verdict for the defendant on punitive damages where 
there was evidence of intentional racial discrimination. The 
court found that "[t]he jury could reasonably find from the 
defendants' systematic practice of treating black apartment 
seekers less favorably than whites that the defendants 
consciously and intentionally discriminated against potential 
black renters." 981 F.2d at 936. See also Samaritan Inns. Inc. 
v. District of Columbia. 114 F.3d 1227 (D.C. Cir. 1997) (applying
Smith v. Wade to claims for punitive damages under the Fair 
Housing Act); Ragin v. Harry Macklowe Real Estate Co.. 6 F.3d 898 
(2d Cir. 1993) (same); Asbury v. Brougham. 866 F.2d 1276, 1282
(10th Cir. 1989) (same).

Discriminating against potential renters on the basis of 
race has been illegal for over thirty years. There was never any 
suggestion in this case that Ms. Riga did not understand what 
discrimination was or that it was illegal to discriminate (see 
Tr. 741-743) . Under the correct standard, a jury would be fully 
justified in awarding punitive damages to the Alexanders in 
response to Maria Riga's systematic, deceitful, and repeated 
refusal to show the apartment to black potential renters.

C. Punitive Damages Can Be Awarded Absent An Award Of 
Compensatory Damages________________________________

The language of the Fair Housing Act does not limit the 
availability of punitive damages to cases in which compensatory 
damages have been awarded. Imposing such a requirement on the 
award of punitive damages would frustrate Congress's purpose in



-19-
allowing punitive damages and in removing the limit on such 
awards when it amended the Act in 1988. The issue whether to 
award punitive damages is distinct from the issue whether the 
plaintiffs have suffered compensable harm. The purpose of 
punitive damages is to punish and deter, whereas the purpose of 
compensatory damages is to compensate the plaintiffs for any 
actual harm they have suffered. See Smith v. Wade. 461 U.S. at 
54 (when considering punitive damages, the court should focus on 
the character of the defendant's conduct and whether it calls for 
deterrence and punishment over and above that provided by 
compensatory awards).

As a threshold matter, whether punitive damages can be 
awarded absent an award of compensatory damages in a case arising 
under a federal statute is, as noted above, an issue governed by 
federal law. See Miller v. Apartments & Homes of New Jersey.
Inc.. 646 F.2d 101, 108 (3d Cir. 1981) (federal law governs
availability of contribution under the Fair Housing Act); Basista 
v. Weir. 340 F.2d 74, 86-87 (3d Cir. 1965) (federal common law
governs issue of punitive damages in case under 42 U.S.C. 1983). 
Applying federal law, the courts of appeals for the Ninth and 
Seventh Circuits have found that punitive damages are recoverable 
under the Fair Housing Act absent an award of actual damages.
In Rogers v. Loether. 467 F.2d 1110 (7th Cir. 1972), aff'd on 
other grounds, sub nom Curtis v. Loether. 415 U.S. 189 (1974), 
the district court found in a Fair Housing Act case that the 
plaintiff had suffered no actual damages, but assessed punitive



- 20 -

damages of $250. The court of appeals, although reversing 
because the trial court had incorrectly denied defendant a jury 
trial, considered the language of the Fair Housing Act and 
concluded that it "does not require a finding of actual damages 
as a condition to the award of punitive damages." 467 F.2d at 
1112 & n .4. In Fountila v. Carter. 571 F.2d 487, 491-492 (9th 
Cir. 1978), also a Fair Housing Act case, the Ninth Circuit, 
citing Rogers v. Loether. similarly concluded that actual damages 
are not a prerequisite for entry of punitive damages.

Other courts, including this Court, have reached the same
conclusion under other federal civil rights statutes. In Basista
v. Weir. 340 F.2d 74, 85-88 (3d Cir. 1965), this Court held that
actual damages were not required for an award of punitive damages
in a 42 U.S.C. 1983 case alleging illegal arrest and wrongful
incarceration by police officers. The court noted that:

* * * there is neither sense nor reason in the 
proposition that such additional damages may be 
recovered by a plaintiff who is able to show 
that he has lost $10, and may not be recovered by 
some other plaintiff who has sustained, it may be, far 
greater injury, but is unable to prove that he is 
poorer in pocket by the wrongdoing of defendant.

340 F.2d at 88, quoting Press Pub. Co. v. Monroe. 73 F. 196, 201
(S.D.N.Y), appeal dismissed, 164 U.S. 105 (1896). In Hennessy v.
Penril Datacomm Networks._Inc.. 69 F.3d 1344, 1351-1352 (7th Cir.
1995), the court held that compensatory damages were not required
for an award of punitive damages under Title VII, finding that
the state common law rule that " [pjunitive damages may not be
assessed in the absence of compensatory damages" had no



- 21 -

applicability to a federal civil rights action. See also Timm v.
Progressive Steel Treating._Inc.. 137 F.3d 1008, 1010 (7th Cir.
1998) (jury's award of punitive damages in Title VII sexual 
harassment suit may stand despite no compensatory or back pay 
award; “[e]xtra-statutory requirements for recovery should not be 
invented”); cf. Campos-Orrego v. Rivera. No. 98-1318, 1999 WL
254470, at *6-*7 (1st Cir. May 4, 1999) (citing Basista v. Weir 
and allowing punitive damages without an award of compensatory 
damages as long as plaintiff made a proper request for nominal 
damages)

The only Fair Housing Act case in which a court of appeals 
has held that compensatory damages are required for an award of 
punitive damages is People Helpers Foundation. Inc, v. Richmond. 
12 F.3d 1321 (4th Cir. 1993) . In that case, the court conceded 
that, in enacting the Fair Housing Act, Congress “did not limit 
punitive damages to situations in which compensatory damages have 
been first awarded” and that “[t]here is no established federal

^  The jury did not award nominal damages in this case, 
although plaintiffs requested nominal damages before and after 
the jury returned its verdict (Tr. 841, 905-906; App. 926-928). 
The jury instruction on nominal damages here, to which the 
plaintiffs did not object, provided that "if you find that the 
plaintiffs are entitled to verdicts in their favor * * * but you 
do not find that the plaintiffs sustained substantial actual 
damages, then you may return a verdict for the plaintiffs in some 
nominal sum, such as one dollar on account of actual damages." 
Mem. Op. at 5 (App. 944) (emphasis added). The court of appeals 
for the Second Circuit has held that "it is plain error for the 
trial court to instruct a jury only that, if the jury finds such 
a violation [of the Fair Housing Act], it "may" award such 
damages, rather than that it must do so." LeBlanc- Sternberg v. 
Fletcher. 67 F.3d 412, 431 (2d Cir. 199-5), cert, denied, 518 U.S. 
1017 (1996) .



- 22 -

common law rule that precludes the award of punitive damages in 
the absence of an award of compensatory damages.” 12 F.3d at 
1326. Nevertheless, the court adopted the state common law tort 
rule and vacated the district court's $1 punitive damages award. 
The district court here did not purport to adopt state common law 
tort rules, but in any event, as explained above, application of 
state common law to damages under the Fair Housing Act is 
inappropriate because it undermines the statute's purposes. See 
generally Miller v. Apartments & Homes of New Jersey. Inc.. 646 
F.2d 101, 106-108 (3d Cir. 1981) (under Fair Housing Act and 42
U.S.C. 1982, courts are to adopt rules "to further, but not to 
frustrate, the purposes of the civil rights acts").

II
PLAINTIFFS ARE ENTITLED TO A 
HEARING ON INJUNCTIVE RELIEF

The plaintiffs also asserted claims for injunctive relief 
but the district court refused to hear evidence on the claims 
after the jury decided the legal issues. That ruling was 
erroneous. Once illegal discrimination has been proved, "[a] 
district court has 'not merely the power but the duty to render a 
decree which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future.'" United States v. Yonkers Bd. of Educ.. 837 F.2d 1181, 
1236 (2d Cir. 1987), cert, denied, 486 U.S. 1055 (1988) (citing
United States v. Paradise. 480 U.S. 149, 171 (1987) (plurality),
citing Louisiana v. United States. 380 U.S. 145 (1965)); see also 
Robert G. Schwemm, Housing Discrimination: Law and Litigation



-23-
§ 25.3(2) (b) (1990 & Supp. 1997) ; cf. Temple Univ. v . White. 941
F .2d 201, 215 (3d Cir. 1991), cert, denied, 502 U.S. 1032 (1992)
(court required to order equitable relief that cures the 
violation of the Social Security Act, 42 U.S.C. 1396 seq.. but 
is no "broader than necessary to correct the violation"). While 
injunctive relief is normally left to the district court's 
discretion, the court's refusal here to hold a hearing or 
consider injunctive relief after the jury found a violation of 
the Fair Housing Act was an abuse of discretion. LeBlanc- 
££.grnberg v. Fletcher. 67 F.3d 412, 432 (2d Cir. 1995) (reversing
district court decision refusing to enter injunctive relief after 
the jury found that defendants had violated the Fair Housing Act, 
42 U.S.C. 1983, and 42 U.S.C. 1985(3)); see also Sandford v. R .
L. Coleman Realty Co.. 573 F.2d 173 (4th Cir. 1978) (district 
court's refusal to award injunctive relief against realty company 
with policy of discriminating against blacks in rentals and sales 
reversed as “clear error’’); Marable v. Walker. 704 F.2d 1219, 
1220-1221 (11th Cir. 1983) (district court's injunction, which 
merely prohibited landlord from applying rental criteria in a 
racially discriminatory manner against plaintiff or anyone else, 
was inadequate and did not afford relief required).

Contrary to the district court's finding, the plaintiffs' 
complaint and the pretrial memorandum explicitly preserved their 
claim for equitable relief. It would have been improper for the 
court to consider the claims for equitable relief before the jury 
decided the legal claims, and " [a]fter the legal claim has been



-24-
determined the court, in the light of the jury's verdict on the 
common issues, may decide whether to award any equitable relief." 
9 Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure: Civil 2d § 2338 at 223 (2d ed. 1994), citing Beacon
Theatres. Inc, v. Westover. 359 U.S. 500 (1959). The fact that 
plaintiffs waited six days after the jury verdict to seek a 
hearing on equitable relief should in no way be viewed as a 
waiver of such claims, and we know of no case in which a waiver 
was found under similar circumstances.

The district court's conclusion that such relief was in any 
event unnecessary also is not supported by the record since 
plaintiffs sought to introduce evidence of other violations by 
Maria Riga in renting other apartments (Tr. 801-815) . The 
district court excluded such evidence at trial because, in the 
court's view, the case "was a disparate treatment, not a 
disparate impact, case." Mem. Op. at 14 (App. 953). The 
district court obviously was confused about the sort of evidence 
relevant to a claim of discrimination, but even if the district 
court properly excluded such evidence at the liability stage, 
evidence of other discriminatory acts was clearly relevant to the 
need for injunctive relief.

Consideration of injunctive relief is important in cases 
such as this in which the jury does not award compensatory 
damages and defendants suffer no adverse consequences as a result 
of their illegal conduct. Andrea Blinn, now the executive 
director of the Fair Housing Partnership of Greater Pittsburgh,



-25-
Inc., testified that the area in which the Alexanders sought to 
find an apartment was predominantly white (Tr. 697). An 
"unchecked act of discrimination" in a white neighborhood such as 
the discrimination proved here can have a snowball effect and 
perpetuate segregation by discouraging not only the actual 
victims of the discrimination from seeking housing in that area, 
but others who learn about it (Tr. 697). The district court had 
a duty to consider equitable relief, and its failure in this 
regard requires a remand for proper consideration of the 
evidence.

CONCLUSION
The district court's judgment should be reversed and the 

case remanded for consideration of appropriate relief.
Respectfully submitted,
BILL LANN LEE

Acting Assistant Attorney General

JESSICA DUNSAY SILVER
REBECCA K. TROTH 

Attorneys
Department of Justice 
P.0. Box 66078 
Washington, D.C. 20035-6078 
(202) 514-4541



CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned 

certifies that this brief complies with the type-volume 
limitations of Fed. R. App. P. 32(a)(7)(B). Based on the word- 
count in the word-processing system, the brief contains 6545 
words. If the court so requests, the undersigned will provide an 
electronic version of the brief and/or a copy of the word 
printout.

Rebecca K. Troth



CERTIFICATE OF SERVICE

I hereby certify on June 3, 1999, that I caused to be served
two copies of the foregoing Brief for the United States as Amicus
Curiae Supporting Appellants Urging Reversal by first-class mail,
postage prepaid, on:

Caroline Mitchell 
3700 Gulf Building 
707 Grant Street 
Pittsburgh, PA 15219-1913
Timothy O'Brien 
1705 Allegheny Building 
429 Forbes Avenue 
Pittsburgh, PA 15219
Thomas M . Hardiman 
Titus & McConomy 
20th Floor 
Four Gateway Center 
Pittsburgh, PA 15222

REBECCA K. 
Attorney

TROTH



\

i