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

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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)

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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)

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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

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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

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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)

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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."

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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,

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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).

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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

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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'

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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

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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

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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.

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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

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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-

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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.

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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

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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

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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.)

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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

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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.

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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.

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Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

ISABELLE KATZ PINZLER
Acting Assistant Attorney
General

DENNIS J. DIMSEY
MARIE K. Mc ELDERRY
Attorneys

JULY 1997