United States v. Barberis
United States v. Barberis
Opinion of the Court
MEMORANDUM AND ORDER
(1) Reference is hereby made to defendants’ motions to dismiss and to all other filings in this case. For the foregoing reasons, defendants’ motions to dismiss are denied.
(2) Plaintiff, the United States of America, filed a complaint on behalf of Mr. Gilmore Thompson, (“Thompson”), a black male, pursuant to § 812(o) of the Fair Housing Act (“FHA”).
(3) On or about June 19,1989, the Barberises signed a “Property Management and Exclusive Rental Agreement” with Lewis &
In October, 1989, Thompson, at the suggestion of Coghill, met with Richard Allen (“Allen”), executive director of Suburban Maryland Fair Housing, Inc., to discuss the events surrounding his attempted rental of the Leonard Court house. In June, 1990, Thompson timely filed a complaint with the United States Department of Housing and Urban Development (“HUD”) pursuant to 42 U.S.C. § 3610(a).
HUD, pursuant to the requirements of 42 U.S.C. §§ 3610(a) and (b), completed an investigation of Thompson’s complaint, unsuccessfully attempted conciliation, and prepared a final investigative report.
(4) This Court, in a Memorandum and Order dated May 2, 1995, notified the parties that due to the presence of materials outside the pleadings, it would treat defendants’ motions to dismiss as motions for summary judgment. Accordingly, the parties were directed to submit materials for this Court to consider in proper Rule 56 form. A party is entitled to summary judgment provided that there is no genuine issue of material fact. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Under the applicable standards, the non-moving party is entitled to have “all reasonable inferences ... drawn in [its] respective favor.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir. 1987). The party resisting summary judgment bears the burden to “go beyond the pleadings and by [its] own affidavits, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
(5) In its motion to dismiss, Lewis & Silverman argues that because it was never named in the administrative complaint, this Court has no jurisdiction over it. While it is true that complainant Thompson never named Lewis & Silverman in the administrative complaint, Roger Dreeben, president of Lewis & Silverman, was named in the amended complaint. Dreeben is not named as a defendant in the within case in this Court. The record clearly indicates that Lewis & Silverman was on notice of the pending action; answered the administrative complaint on behalf of Dreeben; corresponded with HUD; and elected to go forward with the civil action.
(6) Irrespective of whether Lewis & Silverman was named in the complaint, “[u]nder the Fair Housing Act, a corporation ... ‘[is] responsible for the acts of a subordinate employee [in violation of the Act], even though these acts were neither directed nor authorized.’ ” Saunders v. General Services Corp., 659 F.Supp. 1042, 1059 (E.D.Va. 1987) (citing Harrison v. Otto G. Heinzeroth Mortgage Co., 430 F.Supp. 893, 897 (N.D.Ohio 1977)). See also Walker v. Crigler, 976 F.2d 900, 904 n. 5 (4th Cir. 1992). Consequently, Lewis & Silverman can seemingly be held liable under the FHA for the acts of its officers and/or employees, Dreeben and Mueller, even if it cannot be held so liable for the reasons set forth in paragraph (5), supra.
(7) Lewis & Silverman and Mueller argue that they were named as defendants outside the one year statute of limitations period and, therefore, the within action against them should be dismissed. Specifically, Lewis & Silverman and Mueller argue that because Thompson knew, or should have known, about the alleged discriminatory roles of the respective defendants and chose not to add them to the initial administrative complaint, they cannot be added to the administrative complaint at a later date. However,
Defendants’ argument is seemingly based on the one section of the statute which refers to those identified “in the course of investigation.” In United States v. Forest Dale, Inc., 818 F.Supp. 954 (N.D.Tex. 1993), however, the court focused on 42 U.S.C. § 3610(a)(1)(D) and allowed the later named parties to be before the court, even though those parties were seemingly known at the time the initial administrative complaint was filed but were not named therein. Id. at 961-62, 965. The code and its implementing regulations appear to make two references vis-a-vis adding respondents. One reference is to amended complaints in general; the other is to amended complaints which add, as respondents, those identified “in the course of investigation.” While Lewis & Silverman and Mueller imply that the code only permits adding respondents when they are identified during an investigation, there is seemingly nothing in the code or in the regulations to support that approach. The statute and regulations appear to allow the adding of additional respondents who were known at the time when the complaint was filed but were, for some reason, not named at the time of filing.
The facts in this case support allowing Lewis & Silverman and Mueller to be deemed appropriately added. In his affidavit, Thompson states that he intended, at the time he first discussed and filled out his complaint with Allen of Suburban Maryland Housing Authority, Inc. in October 1989, to charge Lewis & Silverman and Mueller.
Lewis & Silverman and Mueller have been formally aware of the case since December 14,1990. They were served official notice by HUD and they participated in the adminis
(8) The FHA requires HUD to issue a reasonable cause charge within one hundred (100) days of filing the administrative complaint. All of the defendants argue that because HUD did not issue its reasonable cause charge until nearly four (4) years after the complaint was filed, this Court has no jurisdiction and the case must be dismissed. The FHA’s 100 day requirement is followed by the words “unless it is impracticable to do so.” 42 U.S.C. § 3610(a)(l)(B)(iv). In a letter, accompanied by an appropriate affidavit, Ira Goldstein (“Goldstein”), the director of HUD’s Fair Housing Enforcement Center, attempts to explain the reasons that it took more than 100 days to complete the investigation.
Under the circumstances, failure to meet the 100 day limit does not deprive this court of jurisdiction.
There is nothing in the language of section 3610 that can fairly be construed as imposing a jurisdictional limit____ The plain language of this section indicates that Congress anticipated situations in which the investigation could not be completed within 100 days, and qualified its mandate (‘shah’) with an exception (‘unless’).
United States v. Beethoven Associates Limited Partnership, 843 F.Supp. 1257, 1261 (N.D.Ill. 1994). Accord Baumgardner v. Secretary, United States Department of Housing and Urban Development, 960 F.2d 572, 578 (6th Cir. 1992); United States v. Nally, 867 F.Supp. 1446, 1451 (N.D.Cal. 1994); and United States v. Forest Dale, Inc., supra at 965-66. See also James A. Kushner, Fair Housing 2d. Ed., § 8.29 at n. 959 (1995). The only case cited against this proposition, United States v. Aspen Square Management Co., 817 F.Supp. 707 (N.D.Ill. 1993), was later vacated. See Beethoven at 1260; United States v. Gorman Towers Apartments, 857 F.Supp. 1335, 1338 (W.D.Ark. 1994). Courts which have addressed the almost identical issue in the context of Title VII have reached similar conclusions. In Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Supreme Court considered and rejected the argument that language limiting time for EEOC action barred that agency from filing suit under Titlé VIL Similarly, in Tuft v. McDonnell Douglas Carp., 517 F.2d 1301, 1307 (8th Cir.
[t]he use of this language — ‘as promptly as possible and, so far as practicable’ — demonstrates that Congress did not set specific administrative deadlines---- [Administrative enforcement of Title "VII does not cease at the end of 180 days, and thus, the 180-day provision does not serve as a deadline for the commission____”
The government argues that the 100 day provision in the FHA is intended to hasten access to resolution, not prevent court access should the administrative agency fail to act, and that if the 100 day limit is read as a time bar, it could effectively cut off the government’s right to enforce the law. Congress seemingly recognized the administrative burden which would be placed on HUD by requiring action within 100 days and added the “unless it is impracticable to do so” language. In Brock v. Pierce County, 476 U.S. 253, 260, 106 S.Ct. 1834, 1839, 90 L.Ed.2d 248 (1986), Justice Marshall stated: “[w]e would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake.” Brock involved the U.S. Department of Labor’s procedural failures with regard to the Comprehensive Employment and Training-Act. See also EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1357 (6th Cir.), cert. denied 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975). Further, in NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265, 90 S.Ct. 417, 421, 24 L.Ed.2d 405 (1969), the Supreme Court stated “the Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the benefit of -wrongdoing employers.” (citations omitted).
Despite the acknowledged delay of more than 100 days, defendants are unable able to show how they are prejudiced by HUD’s failure to act other than by saying that HUD’s delay was unreasonable or that because HUD took so long, the action should be barred under the doctrine of laches. In Baumgardner, supra at 579, the court emphasized the need to show that the defendant was prejudiced by HUD’s failure to meet the statutory and regulatory provisions. In United States v. Casitas Capistrano Ass’n., C.A. No. 92-2723 DWW (C.D.Cal. 1993), the court refused to dismiss an FHA action where HUD waited more than twenty-five (25) months to file a reasonable cause charge because there was no prejudicial effect to the defendant. Similarly, in cases before the Equal Employment Opportunity Commission (“EEOC”), the- showing of prejudice is paramount before a defendant’s motion to dismiss is granted.
When an agency neglects to follow a procedural rule but its failure inflicts no significant injury on the party entitled to observance of the rule, the error does not prevent further administrative or judicial action. Instead, the error should be considered harmless. (citations omitted). This is the rule especially when the agency is not itself adjudicating but is conducting preadjudication activities.
EEOC v. Kimberly-Clark Corp., supra at 1360-61. See also 2 Larson, supra, at § 48.41(a)(3). In the instant case, defendants have not shown any prejudicial effect resulting from HUD’s having taken more than 100 days to issue the reasonable cause charge.
(9) For the reasons set forth, supra, this Court hereby denies defendants’ motions for summary judgment.
(10) It is so Ordered.
. See 42 U.S.C. § 3612(c).
. See Final Investigative Report at 2. See also Determination of Reasonable Cause and Charge of Discrimination at ¶¶ 20 and 21.
. See Government's April 3, 1995 filing at A-l. A companion case was filed by Suburban Maryland Fair Housing, Inc. on August 28, 1990. Through HUD's conciliation process, the companion case was ultimately settled.
. Id. at A-5.
. Id. at B-4.
. Thompson's case and the Suburban Maryland Fair Housing case were consolidated for investigative purposes at about this time.
. Id. at B-6.
. Id. at A-9.
. Id. at A-10 and A-ll.
. Id. at C-16.
. See Id. at C-12; C-14; C-15; C-16; C-29; C-31-34.
. The investigative report contains a detailed synopsis of the investigation into the merits of this case, including, but not limited to, interviews with different witnesses; dates upon which certain letters were mailed and/or received; and
. See notes 10 and 11, supra.
. Lewis & Silverman and Mueller argue that they were not notified within ten days of identification as required by 24 C.F.R. § 103.50. However, the record clearly indicates that Lewis & Silverman and Mueller were notified, in writing, three days after Thompson amended the complaint. See Government’s April 3, 1995 filing at A-10 and A-ll.
. See Thompson affidavit at ¶ 3.
. Id.
. Id. at ¶ 4.
. Id.
. Id. at ¶5.
. Id. at ¶ 7.
. Defendants have moved to strike Goldstein’s affidavit and the accompanying letter on the basis that Goldstein lacks personal knowledge. In reviewing the letter and the documents to which Goldstein refers, it seems that any "discussions” which Goldstein may have had with investigators simply supported items which Goldstein had himself learned from admissible documents contained in the administrative record prior to completing and signing his affidavit. Therefore, defendants' said motions to strike are hereby denied.
. See Goldstein letter at page 1.
Reference
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- United States v. Jaime and Graciela BARBERIS
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