Nos. 96-1712 and 96-1915 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 DIONNE STAPLES, PETITIONER v. MICHAEL P. KELLY, ET AL. MICHAEL P. KELLY, ET AL., CONDITIONAL CROSS-PETITIONERS v. DIONNE STAPLES, ET AL. ON PETITION AND CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assistant Attorney General DENNIS J. DIMSEY MARIE K. MCELDERRY Attorneys Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a court may reduce the amount of actual damages awarded to the victim of housing discrimina- tion in violation of the Fair Housing Act, 42 U.S.C. 3601 et seq., on the ground that delay in the federal administrative processing of the complaint com- pounded the damages. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statement . . . . 2 Discussion . . . . 9 TABLE OF AUTHORITIES Cases: Baumgardner v. HUD, 960 F.2d 572(6th Cir. 1992) . . . . 18 Brock v. Pierce County, 476 U. S .253 (1986) . . . . 16, 17 Curtis v. Loether, 415 U. S. 189(1974) . . . . 10, 14 HUD v. Blackwell, 908 F.2d 864 (llth Cir. 1990) . . . . 13 Kraszewski v. State Farm Gen. Ins. Co., 912 F.2d 1182 (9th Cir. 1990), cert. denied, 499 U.S. 947 (1991) . . . . 12-13 International Bhd. of Elec. Workers, Local 648 v. NLRB, 440 F.2d 1184 (6th Cir. 1971) . . . . 18 Logan v. Zimmerman Brush CO., 455 U.S. 422 (1982) . . . . 15 Mohasco Corp.. v. Silver, 447 U. S.807 (1980) . . . . 16 NLRB v. International Ass'n of Bridge Iron- workers, Local 480, 466 U. S. 720 (1984) . . . . 12 NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258 (1969) . . . . 11, 12 NLRB v. Seligman & Assoc., Inc., 808 F.3d 1155 (6th Cir. 1986), cert. denied, 484 U.S. 1026 (1988) . . . . 18 United States v. City of Birmingham, 727 F.2d 560(6th Cir.), cert. denied, 469 U. S. 821(1984) . . . . 18 United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) . . . . (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979) . . . . 13 United States v. Nashville, C. & St. L. Ry., 118 U.S. 120 (18g6) . . . . 16 Statutes and regulation: Administrative Procedure Act, 5 U.S.C. 1005(a) (1964) (6(a)) . . . . 11-12 Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000 et seq. . . . 10-11,12-13 706(e), 42 U. S.C. 2000e-5(e) . . . . 14 Fair Housing Act, 42U.S.C. 360 et seq. . . . . 3, 10 42 U. S. C. 3602(k)(l) . . . . 4 42 U.S.C. 3604 . . . . 4 42 U.S.C. 3604(a) . . . . 3, 5 42 U.S.C. 3604(b) . . . . 3 ,5 42 U.S.C. 3604(C) . . . . 4, 5 42 U.S.C. 3608(e)(2)(B) . . . . 17 42 U.S.C. 360g(e)(2)(B)(i) . . . . 17 42 U.S.C. 3608(e)(2)(13) (ii) . . . . 17 42 U.S.C. 3608(e)(2)(B) (iii) . . . . 17 42 U.S.C. 3610(a)(l)(A) (i) . . . . 14 42 U.S.C. 3610(a)(l)(B) . . . . 17 42 U.S.C. 3610(a)(l) (B)(iv) . . . . 4, 14 42 U.S.C. 3610(a)(l)(C) . . . . 4, 14 42 U.S.C. 3610(g) . . . . 17 42 U.S.C. 3610(g)(l) . . . . 4, 14, 15 42 U.S.C. 3612(g) . . . . 17 42 U.S.C. 3612(g)(l) . . . . 14, 15 42 U.S.C. 3612(g)(2) . . . . 15 42 U.S.C. 3612(g)(3) . . . . 11 42 U.S.C. 3612(h) . . . . 5, 7, 15 42 U.S.C. 3613(a)(1)(A) . . . . 13 42 U.S.C. 3613(a)(l)(B) . . . . 13 42 U.S.C. 3613(a)(3) . . . . 14 ---------------------------------------- Page Break ---------------------------------------- V Statute and regulation-Continued: Page Fair Housing Amendments Act of 1988, Pub. L. No.100-430, 102 Stat. 1619 . . . . 3, 13 24 C.F.R.103.300(C) . . . . 7 Miscellaneous: H. R. Rep. No. 711, 100th Cong.,2d Sess. (1988) . . . . 13 ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1996 No. 96-1712 DIONNE STAPLES, PETITIONER v. MICHAEL P. KELLY, ET AL. No. 96-1915 MICHAEL P. KELLY, ET AL., CONDITIONAL CROSS-PETITIONERS v. DIONNE STAPLES, ET AL. ON PETITION AND CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1- A16 1) is reported at 97 F.3d 118. An earlier decision of the court of appeals (Pet. App. B17-B33) remanding the case for further proceedings is reported at 3 F.3d ___________________(footnotes) 1 Citations to "Pet. App." are to the appendix to the peti- tion for a writ of certiorari in No. 96-1712. (1) ---------------------------------------- Page Break ---------------------------------------- 2 951. The initial decision of the administrative law judge, United States Department of Housing and Urban Development (ALJ) (Pet. App. C34-C86), and the initial decision of the ALJ on remand (Pet. App. D87-D107) are not reported. JURISDICTION The judgment of the court of appeals was entered on September 30, 1996. Petitions for rehearing were denied on January 24,1997. Pet. App. E109-E110. The petition for a writ of certiorari in No. 96-1712 was filed on April 24, 1997, and placed on the docket on April 28, 1997. The conditional cross-petition for a writ of certiorari in No. 96-1915 was tiled on May 28, 1997. The jurisdiction of this Court is invoked pur- suant to 28 U.S.C. 1254(1). STATEMENT 1. a. In March 1990, petitioner, Dionne Staples, 2 a single mother of twin daughters, inquired about rent- ing a two-bedroom apartment in a complex owned by respondents Michael P. Kelly and John T, Kelly, and their sister-in-law. Pet. App. B18-B19. Petitioner was told by someone from the realty office of respon- dent Michael P. Kelly that only one child was allowed per bedroom. Id. at B 18. Respondents later rented the apartment to a couple with no children. Id. at B 19. Petitioner ultimately rented an apartment in a differ- ent location that was less convenient to public trans- ___________________(footnotes) 2. We use "petitioner" to refer to Dionne Staples who is petitioner in No. 96-1712 and respondent in No. 96-1915. We use "respondents" to refer to Michael P. Kelly and John T, Kelly who are respondents in No. 96-1712 and conditional cross- petitioners in No. 96-1916. The Secretary, United States De- partment of Housing and Urban Development, is a respondent in both matters and is referred to as "HUD." ---------------------------------------- Page Break ---------------------------------------- 3 portation, to her family, to a grocery store, to a drug store, and to a library and parks. Id. at B18-19. Con- sequently, petitioner's commute to work was longer, costlier, and more complicated, and she had to rely on borrowed cars for transportation on the weekends. Id. at C39. b. After her conversation with an individual in respondent's realty office, petitioner contacted a fair- housing organization which investigated respondents' apartment complex by using testers posing as prospective tenants and confirmed that respondents had a policy of permitting only one child per bedroom. Pet. App. B19-B20. On May 17, 1990, petitioner filed a complaint with the United States Department of Housing and Urban Development (HUD), alleging that she had been denied an apartment by respondents because of her familial status, in violation of the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq.3 Pet. App. ___________________(footnotes) 3 The prohibition against familial status (discrimination) was added to the FHA through the Fair Housing Amendments Act of 1988 (1988 Amendments), Pub. L. No. 100-430, 102 Stat. 1619. As amended, the FHA makes it unlawful "[t]o refuse to * * * rent * * * or to refuse to negotiate for the * * * rental of, or otherwise make unavailable or deny, a dwelling to any person because of *** familial status." 42 U.S.C. 3604(a). The FHA also prohibits "discrimination] against any person in the terms, conditions, or privileges of * * * rental of a dwelling * * * because of familial status." 42 U. S.C. 3604(b). And the FHA makes it unlawful for any person engaged in the rental of a dwelling to make any "statement * * with respect to the *** rental of a dwelling that indicates any preference, ---------------------------------------- Page Break ---------------------------------------- 4 B20. Respondents answered the complaint on June 5, and a conciliation meeting with HUD officials was held on July 19, but was not successful. Ibid. The HUD investigator completed his investigation on October 2, 1990. HUD issued a reasonable cause determination and charge of discrimination on March 2, 1992. Pet. App. B20. HUD's completion of its investigation and reasonable cause determination thereby exceeded the 100-day period following the filing of petitioner's complaint within which the Act requires HUD either to complete those tasks or to notify respondents of the reason for the delay. 41d. at C46. 2. HUD's charge alleged that respondents violated the FHA, 42 U.S.C. 3604, and various regulations promulgated thereunder. Pet. App. C35. Petitioner was granted permission to intervene and a HUD administrative law judge (ALJ) held a three-day hearing at the end of May 1992. Id. at B20. After a post-hearing briefing period, the ALJ issued an initial ___________________(footnotes) limitation or discrimination based on * * * familial status * * * or an intention to make any such preference, limitation, or discrimination." 42 U.S.C. 3604(c). "Familial status" is defined as "one or more individuals (who have not attained the age of 18 years) being domiciled with * * * parent or another person having legal custody of such individual or individuals." 42 U.S.C. 3602(k)(l). 4 The Act requires that, within 100 days of the filing of a complaint, HUD complete an investigation of an alleged fair housing violation and make a determination whether there is reasonable cause to believe such a violation occurred, "unless it is impracticable to do so." 42 U.S.C. 3610( a)(l) (B)(iv) and (g)(l). If HUD is unable to meet that deadline, HUD is supposed to notify the complainant and respondent in writing of the reasons for not doing so. 42 U.S.C. 3610(a)(1) (c) and (g')(l). ---------------------------------------- Page Break ---------------------------------------- 5 decision and order on August 26, 1992, which became the final order of the Secretary of HUD "30 days thereafter, pursuant to 42 U. S. C." 3612(h). Pet. App. C34-C86. The ALJ found that respondent Michael P. Kelly, or agents under his direction and control, intention- ally discriminated against petitioner because of her familial status, in violation of 42 U.S.C. 3604(a), and that their conduct violated 42 U.S.C. 3604(b) and (c). Pet. App. C54-C55. The ALJ concluded that respon- dent John T. Kelly was liable by virtue of his joint- ownership of the complex. Id. at C55-C56. The ALJ rejected respondents' contention that the charge should be dismissed based on HUD's proce- dual missteps, including the fact that nearly two years elapsed between the date petitioner's complaint was filed and the date that HUD issued its charge of discrimination. The ALJ acknowledged that HUD had committed several procedural errors, including not notifying respondents that HUD would not be able to complete its investigation and determination of cause within the 100 days provided by statute. Pet. App. C60; but see id. at H145-H146. The ALJ found, however, that respondents were not substantially prejudiced in the preparation of their defense as a result. Id. at C60-C61. The ALJ concluded that respondents were pre- juiced with regard to damages because of HUD's delay in filing the charge of discrimination. Pet. App. C67-C68. The ALJ found that that fact did not con- stitute a legal basis for reducing the amount of dam- ages owed petitioner, however, because "a search of the Act, its legislative history, and the cases * * * reveal[s] no authority for reducing the actual dam- ages of a housing discrimination victim below the ---------------------------------------- Page Break ---------------------------------------- 6 proven amount because HUD has, without explana- tion, delayed presenting the case for- adjudication." Id. at C68-C69. Therefore, the ALJ took HUD's delay into account instead when it considered HUD's request for civil penalties in the amount of $10,000. Id. at C75-C78. The ALJ explained that, under ordi- nary circumstances, he would have imposed a civil penalty less than $3,000, but he refused to impose any civil penalty in the instant case because the administrative delay increased the accrual period for the petitioner's damages and increased the amount of economic damages that respondents were ordered to pay. Id. at C76-C78. The ALJ entered an injunction, ordering respon- dents to refrain from discriminating, to institute internal record keeping procedures, and to report to HUD for a specified period of time. Pet. App. C78- C83. The ALJ awarded Ms. Staples $10,430.76 in actual damages, $6,930.76 of which was for economic damages (compensating for the difference between the cost of respondents' apartment and the alternative housing petitioner obtained, the cost of finding that alternative, petitioner's increased transportation costs to work, increased commuting time, and time spent prosecuting her claim), and $3,500 was for intangible damages (emotional injury and loss of housing opportunity). Id. at C61-C66, C74. The ALJ refused to award damages for future losses because they were too speculative to be determined with reasonable specificity. Id. at C66-C67. 3. The court of appeals affirmed in part, vacated in part, and remanded for further proceedings. Pet. App. B17-B33. The court affirmed the ALJ's finding of unlawful discrimination and the injunction. Id. at B18. The court agreed, however, with respondents' ---------------------------------------- Page Break ---------------------------------------- 7 claim that they were denied the right to an objec- tively reasonable conciliation because the HUD investigator had participated in the conciliation process despite a HUD regulation that provides that, generally, agents should not take part in both the investigation and conciliation of the same case. 24 C.F.R. 103.300(c). Pet. App. B25-B32. The court therefore remanded the case to HUD so that the parties would be given an opportunity to resolve this matter by means of a fair and reasonable conciliation effort." Id. at B32. The court further ruled that, if conciliation failed, the matter was to be returned to the ALJ for further proceedings in light of the court's opinion. In addition, without elaboration, the court specified that "in no case should damages reassessed for the period during which HUD completely neglected this case." Pet. App. B32-B33. The court denied HUD's petition for rehearing. Id. at B 17. 4. On remand, conciliation again failed and the matter was returned to the ALJ who, after further briefing, issued an initial decision which became the final order of the Secretary of HUD 30 days thereafter, pursuant to 42 U.S.C. 3612(h). Pet. App. D87-D108. The ALJ reconsidered the damages award in light of the court of appeals' decision. The ALJ rejected arguments by petitioner and HUD that he lacked authority to reduce the damages, noting that he was constrained to follow the court of appeals' decision. Id. at D90. Because the court of appeals did not identify a period "during which HUD completely neglected" the case, however, the ALJ ordered the parties to identify such a period or periods. Id. at D98. Respondents failed to identify any such period, arguing instead that HUD had completely neglected ---------------------------------------- Page Break ---------------------------------------- 8 the case from the day the complaint was filed. Id. at D99. The ALJ rejected that argument in light of HUD's investigation, attempt to conciliate, and reasonable cause determination, and ultimately con- cluded that, on the original record, he could not identify any specific period of complete neglect. Ibid. He declined to consider evidence submitted by HUD in support of its argument that it had, at no time, "completely neglected" the case. Id. at D99-D100. In order to comply with the court of appeals' order, the ALJ reduced the damages by the nominal amount of 1. See id. at D89, D91, D98-D101. 5. The court of appeals reversed the damages award. Pet. App. A1-A10. The court followed "the mandate of [the initial panel opinion] that a respon- dent in a housing discrimination case cannot be made to pay for the government's neglect," and concluded that the award for economic damages should have been based on an accrual period of one year (instead of 25 months) from the date of the incident. Id. at A5. The court explained that the "reasonable accrual period for damages in this case is twelve months: the period within which Congress intended HUD to carry out its administrative responsibilities and the standard term of a rental lease." Ibid. The court, determined that petitioner's economic damages should be reduced to $3,571.03 based on its one-year limit. Ibid. In addition, the court reduced the amount of damages for emotional distress and loss of housing opportunity from $3,500 to $1,000 to account for the "period during which HUD mishandled the case; on ---------------------------------------- Page Break ---------------------------------------- 9 the basis that it "cannot ask the Kellys to pay for emotional distress caused by HUD." Id. at A6. 5. In a dissenting opinion, Judge Ryan expressed his "strong disagreement" with the majority's reduction of the damages award to petitioner. Pet. App. A10- A16. He found "absolutely nothing in the record to support `twelve months' as the appropriate period for the damage award," and noted that the majority did "not claim there is any record support for what it has done." Id. at A10-A11. He also noted that the parties, the ALJ, and the majority had not identified any period during which HUD completely neglected the case. Id. at Al 1. He concluded, therefore, that "[i]t is unjust in the extreme to penalize the victim, Staples, and reward the discriminators, the Kellys, because the majority is impatient with HUD." Id. at A11.6 DISCUSSION We agree with petitioner that the court of appeals erred. The Secretary, United States Department of Housing and Urban Development (HUD), joined petitioner in seeking rehearing and in suggesting rehearing en banc in the court of appeals. HUD did not file a petition for a writ of certiorari, however, because the decision below appears to be the only ___________________(footnotes) 5 The court of appeals also affirmed the award of attor- neys' fees to petitioner and reversed the denial of fees to re- spondents, ordering HUD to pay respondents $20,000 for fees and expenses. Pet. App. A6-A8, A10. Judge Ryan dissented from the order that HUD pay attorneys' fees to respondents. Id. at A1l-A16. 6 The court of appeals denied petitioner's and HUD's sug- gestions of rehearing en bane and the panel denied their peti- tions for rehearing, with Judge Ryan indicating that he would grant rehearing for the reasons stated in his dissent. Pet. App. E109-E110. ---------------------------------------- Page Break ---------------------------------------- 10 court of appeals decision to hold that HUD's delay can be used to deny full compensation to a victim of housing discrimination and, therefore, is an aberra- tion that other courts of appeals are not likely to follow. Widespread application of the court of appeals' reasoning would, however, undermine substantially the remedial purposes of the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq., to make victims of housing discrimination whole. Thus, if the Court were to grant review, HUD would support petitioner. Also, if other lower courts were to adopt the approach of the court below, we believe that review by the Court could be warranted at such time. Respondents' conditional cross-petition does not, in any event, warrant review. The court of appeals correctly refused to order dismissal of the charges based on respondents' contention (Cross-Pet. 12-20) that procedural missteps by HUD eliminated HUD's jurisdiction. 1. The court of appeals erred in reducing the amount of damages awarded to petitioner based on delay by HUD. Its ruling is inconsistent with the Court's holding in Curtis v. Loether, 415 U.S. 189 (1974), that, with regard to awards of actual damages under the FHA, "[t]here is no * * * discretion [t]here: if a [FHA] plaintiff proves unlawful discrimi- nation and actual damages, [s]he is entitled to judg- ment for that amount." Id. at 197. The Court empha- sized that "[a] damages action under the statute sounds basically in tort-the statute merely defines a new legal duty, and authorizes the courts to compens- ate a plaintiff for the injury caused by the de- fendant's wrongful breach." Id. at 195; see also id. at 196-197 (contrasting legal right to damages under FHA with discretionary award of backpay under Title ---------------------------------------- Page Break ---------------------------------------- 11 VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.). Nothing in the FHA permits the damages awarded to a victim of housing discrimination to be limited to one year from the date a complaint is filed or to any other amount that is less than the actual damages suffered. The FHA requires an ALJ who has found that a respondent has engaged in a discriminatory housing practice, to order appropriate relief, includ- ing actual damages suffered by the aggrieved person. 42 U.S.C. 3612(g)(3). The ALJ in the instant case adhered to that requirement. The court of appeals upheld the ALJ's finding of unlawful discrimination and did not set aside any of the ALJ's findings regarding the injuries actually incurred by petitioner upon which the ALJ's damages amount was based. The court of appeals, therefore, erred in reducing the ALJ's damages award. 2. The court of appeals' ruling is in tension with the decision of the Court in NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969). In that case, the Court made clear that a federal agency's delay in processing an injured person's claim does not justify reducing the compensatory award to that person. The Court held that a court of appeals may not, on account of delay (approximately four years) by the National Labor Relations Board (Board), reduce a backpay award that an employer has been ordered by the Board to pay to certain employees because of the employer's unfair labor practice. Id. at 259. The Court did not disturb the lower court's finding that the Board "had been guilty of `inordinate' delay," in violation of the requirement that it "proceed with reasonable dispatch to conclude any matter presented to it." Id, at 262, 264 (citing former Section 6(a) of the Admin- ---------------------------------------- Page Break ---------------------------------------- 12 istrative Procedure Act, 5 U.S.C. 1005(a) (1964)). The Court assumed that the Board's, delay violated that statutory mandate, but nonetheless concluded that the Board was "not required to place the conse- quences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing employers." Id. at 265. In NLRB v. International Ass'n of Bridge Ironworkers, Local 480,466 U.S. 720 (1984) (per curiam), the Court reaffirmed the now well-established principle of Rutter-Rex Mfg. Co. that the Board cannot "punish[] employees for the Board's nonfeasance." 466 U.S. at 725. The same principle applies in the instant case. As in Rutter-Rex Mfg. Co., the court of appeals found that the federal agency's delay violated a statutory mandate to act expeditiously. On that basis, the court of appeals decreased the amount of the award the agency had ordered the wrongdoer to pay to the victim of the unlawful conduct that prompted the agency review. But, the modification of the admini- strative award left the victim "worse off than [she] would have been but for" the unlawful conduct of the wrong doer. See Rutter-Rex Mfg. CO., 396 U.S. at 263. And, the modification undermined the purposes of the administrative award-"vindicat[ ing] the public policy of the statute by making the [complainant] whole for losses suffered on account of" the conduct that violated the statute. See ibid. Therefore, proper resolution of the instant case would lead to a similar result here reversal of the court of appeals' judg- ment and a ruling that petitioner is entitled to her full damages award. Cf. Kraszewski v. State Farm Gen. Ins. Co., 912 F.2d 1182, 1186 (9th Cir. 1990) (applying Rutter-Rex Mfg. Co. principle in case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 13 2000e et seq., to preclude reduction of backpay awards because of court delay, noting that the remedial provisions of the NLRA and Title VII are analogous and have similar purposes), cert. denied, 499 U.S. 947 (1991); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918,932-933 (l0th Cir. 1979); see also Pet. 14. 3. The court of appeals' decision is inconsistent with the overall enforcement scheme of the FHA. Before. 1988, victims of housing discrimination in violation of the FHA had to file private civil actions in order to vindicate their statutory rights. A gap in enforcement resulted because such private litigation proved to be too costly or time consuming for many housing discrimination victims. In 1988, when Con- gress enacted the Fair Housing Amendments Act of 1988 (1988 Amendments), Pub. L. No. 100-430, 102 Stat. 1619, one of its central purposes was to create more effective remedies for violations of the Act by giving HUD a more active role in enforcement of the Act, including the authority to award actual damages to victims of discrimination, and by creating an administrative process through which victims could vindicate their statutory rights, instead of pursuing private litigation. See H.R. Rep. No. 711, 100th Cong., 2d Sess. 5-7, 13, 16-17 (1988); see also HUD v. Black- well, 908 F.2d 864, 868-869 ( ll th Cir. 1990) (discussing 1988 enactment of administrative enforcement mecha- nism). The court of appeals' decision, however, creates a disincentive to discrimination victims to rely on that administrative process and on HUD's authority to award damages. As petitioner points out (Pet. 20), if she had chosen to vindicate her rights through a private lawsuit instead of the administrative process, she would have had two years within which to bring ---------------------------------------- Page Break ---------------------------------------- 14 her civil action. 42 U.S.C. 3613(a)(l)(A) (two-years' statute of limitations). That limitations period would have been tolled during any period in which HUD had been investigating her complaint. 42 U.S.C. 3613(a)(l)(B). And, petitioner could have chosen to pursue a private lawsuit in lieu of an administrative adjudication up to the beginning of the hearing on the merits before the ALJ. 42 U.S.C. 3613(a)(3). Had petitioner filed a civil action, she would have been entitled, under Curtis v. Loether, supra, to a full award of actual damages. Instead, however, as a result of petitioner's having pursued relief through administrative channels, the court of appeals set an arbitrary one-year accrual period on petitioner's actual damages-an approach which threatens to erode the intended benefit and cost-effectiveness of the administrative process under the FHA, by placing the risk of budgetary constraints or other factors that might cause delay in the administrative process on the victim of discrimination who invokes that process. Moreover, the one-year limit on accrual of actual damages established by the court of appeals conflicts with the period of time within which actual damages may accrue under the FHA's timeframe for a final administrative determination of damages. It is clear from that statutory timeframe that Congress con- templated that actual damages could accrue for longer than 12 months. A victim of discrimination may file a complaint with HUD up to one year after a discriminatory housing practice has occurred or terminated 42 U.S.C. 3610(a)(1)(A)(i). HUD has 100 days to investigate and bring a charge, 42 U.S.C. 3610(a)(l)(B)(iv) and (g)(l), and longer, so long as it notifies the complainant and respondent in writing of ---------------------------------------- Page Break ---------------------------------------- 15 the reasons why it was unable to complete the in- vestigation or make the probable cause determination within 100 days. 42 U.S.C. 3610(a)(l)(C) and (g)(l). The ALJ has a 120-day period following issuance of the charge within which to commence a hearing on the merits or, again, a longer period is permitted so long as the ALJ notifies the parties of the reason for the delay. 42 U.S.C. 3612(g)(l). Thus, the FHA, on its face, anticipates that significantly more than 12 months may elapse from the time the discriminatory housing practice occurred or terminated until the date of an administrative hearing. And the FHA clearly authorizes a longer period of time where the agency notifies the parties of the reasons for any delay, as HUD maintained it did here. See Pet. App. H145-H146. The court of appeals' decision limiting the accrual period for actual damages to 12 months from the date of the incident cannot be reconciled with this statutory scheme. 7 4. Cross-petitioners contend (Cross-Pet. 12-20) that HUD completely neglected this case from the date the complaint was filed and therefore was di- vested of jurisdiction over the matter. The court of appeals' refusal to order the charges dismissed on account of HUD's procedural missteps, which did not prejudice respondents' defense, is in accord with well-established principles and does not ___________________(footnotes) 7 The court of appeals' decision also raises the specter of a two-tiered system of justice that works to the detriment of complainants who need to rely on the federal administrative process because they cannot afford to bring an action in court. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 438-442 (1982) (opinion of Blackmun, J., joined by Brennan, Marshall, O'Connor, JJ.); id. at 443-444 (opinion of Powell, J., concurring in judgment, joined by Rehnquist, J.) ---------------------------------------- Page Break ---------------------------------------- 16 merit further review. The failure of an administra- tive agency to comply with procedural requirements, including statutory time limits, does not automati- cally eradicate its jurisdiction to enforce the statute. In Brock v. Pierce County, 476 U.S. 253, 259-260 (1986), the Court held that failure of the Secretary of Labor to issue a final determination as to the misuse of federal funds by a grant recipient did not preclude the Secretary from recovering the misused funds. In doing so, it relied on the "great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided." Id. at 260 (quoting United States v. Nashville, C. & St. L. Ry., 118 U.S. 120, 125 (1886)). The Court emphasized that statutory language mandating a federal agency to act within a certain time, does not, "standing alone, divest the Secretary of jurisdiction to act after that time." Id. at 266; see United States v. James Daniel Good Real Property, 510 U.S. 43,63 (1993) ("if a statute does not specify a consequence for noncompliance with statu- tory timing provision, the federal courts will not in the ordinary course impose their own coercive sanc- tions"). 8 ___________________(footnotes) 8 Mohasco Corp. v. Silver, 447 U.S. 807 (1980), does not suggest a different result. See Cross-Pet. 20. There the Court held that an action filed by a private plaintiff after the expiration of the 300-day time period specified in Section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e), was time- barred. As this Court noted in Pierce County, 476 U.S. at 261, Mohasco Corp. involved the failure of an individual to comply with a statute of limitations that required only the filing of a complaint within a specified period. In contrast, the statutory time limitations in Pierce County and in this case require a ---------------------------------------- Page Break ---------------------------------------- 17 As in Pierce County, nothing in the present statute or its legislative history indicates that Con- gress intended to terminate HUD's jurisdiction if it failed to meet the statutory time schedule for administrative review. Indeed, the FHA indicates that Congress itself intended to monitor noncom- pliance with the statutory timeframe, and it does not suggest that noncompliance would elimi nate administrative jurisdiction. See 42 U.S.C. 3608(e)(2)(B)(i), (ii) and (iii) (requiring that HUD report to Congress, at least annually, identifying "the number of instances (and reasons there for)" in which HUD did not compIete investigations as required by Section 3610(a)(1)(B), did not make cause deter- minations within the time specified in Section 3610(g), and did not commence hearings or make find- ings and conclusions as required by Section 3612(g)).9 Accordingly, the conditional cross-petition for a writ of certiorari should be denied. 5. Despite the court of appeals' errors, we did not file a petition for a writ of certiorari, as noted above, because the decision below appears to be an aberration that other courts are not likely to follow. Moreover, the decision below seems to be a departure from the court of appeals' own precedent, in which it has held that the purpose of the Fair Housing Act is to make ___________________(footnotes) federal agency to make a substantive legal determination about whether a particular set of facts, developed after investigation, establishes violation of the statute. As the Pierce County Court noted, "[t]his is a more substantial task than filing a complaint, and the Secretary's ability to complete it within 120 days is subject to factors beyond his control." Ibid. 9 Cross-Petitioners also challenge (Cross-Pet. 20-21) the court of appeals' attorneys' fees determinations, but they do not suggest any reason justifying review by this Court. ---------------------------------------- Page Break ---------------------------------------- 18 whole the victims of discrimination, United States v. City of Birmingham, 727 F.2d 560, 566 (6th Cir.), cert. denied, 469 U.S. 821 (1984), and that a reviewing court should not deprive a victim of conduct in violation of federal law of her right to make-whole relief because of purported neglect by a federal administrative agency. International Bhd. of Elec. Workers, Local 648 v. NLRB, 440 F.2d 1184, 1185 (6th Cir. 1971); NLRB v. Seligman & Assoc., Inc., 808 F.2d 1155, 1161-1162 (6th Cir. 1986), cert. denied, 484 U.S. 1026 (1988). The absence of legal analysis and citation to applicable precedent 10. lends credence to the view of the dissenting judge below that the decision appears to have been triggered by concerns unique to this case (Pet. App. A10, A11) and therefore does not reflect a doctrinal shift in the law of the circuit. ___________________(footnotes) 10 Although the panel majority purported to anchor its de- cision in the Sixth Circuit's prior decision in Baumgardner v. HUD, 960 F.2d 572 (1992), the ruling below goes well beyond Baumgardner. Although the Baumgardner court stated that "HUD's delay and handling did have an adverse impact on the question of damages," id. at 580, it did not reduce any damages to the complainant on that basis, The Baumgardner court reduced the compensatory damages award because of lack of proof of economic loss to the complainant, ibid., and, based on "the facts of th[at] case," the lack of necessity for an award of "presumed damages" for loss of civil rights, id. at 583. The perception of the court of appeals below that Baumgardner supported its decision to reduce petitioner's damages award may, in part, be attributable to the fact that the Court in Baumgardner erroneously referred to the civil penalty as a "civil penalty damage award." Ibid. See Pet. App. C77 n.26; id. at D 96 (ALJ explaining confusion between damages and civil penalties underlying Baumgardner). The ALJ here eliminated the civil penalty, however, an action that more appropriately places the consequences of any delay on the entity that caused it. ---------------------------------------- Page Break ---------------------------------------- 19 Respectfully submitted. WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assistant Attorney General DENNIS J. DIMSEY MARIE K. Mc ELDERRY Attorneys JULY 1997