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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FAIR HOUSING COUNCIL OF OREGON, 

an Oregon nonprofit corporation,

Plaintiff,

v.

TRAVELERS HOME AND MARINE 

INSURANCE COMPANY, a foreign insurer; 

TRAVELERS INDEMNITY COMPANY OF 

AMERICA, a foreign insurer; PROGRESSIVE 

INSURANCE CORPORATION, INC., an 

Oregon corporation, d/b/a LLOYD PURDY & 

CO., an Oregon assumed business name,

Defendants.

Case No. 3:15-cv-00925-SB

FINDINGS AND 

RECOMMENDATION

BECKERMAN, Magistrate Judge.

Plaintiff Fair Housing Council of Oregon (“FHCO”), a non-profit corporation, filed suit 

on May 28, 2015 against Defendants Travelers Home and Marine Insurance Company and 

Travelers Indemnity Company of America (collectively “Travelers”)

1 and Defendant Progressive 

 1 FHCO also filed suit against Travelers Casualty and Surety Company, Travelers 

Casualty and Surety Company of America, Travelers Casualty Insurance Company of America, 

Travelers Property Casualty Company of America, Travelers Property Casualty Insurance 

Company, Travelers Indemnity Company, and Travelers Casualty Company. The parties later 

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Insurance Corporation, Inc. (“Progressive”), seeking to enforce various provisions of the Fair 

Housing Act, as amended by the Fair Housing Amendments Act of 1988 (“FHA”), 42 U.S.C. 

§ 3601, et seq. (First Claim), and the comparable Oregon statute, ORS 659A.145 (Second 

Claim).

2

FHCO has filed a Motion for Summary Judgment as to liability. (ECF No. 57.) Travelers 

has filed a Motion for Summary Judgment on the grounds that FHCO lacks Article III standing 

to bring this action. (ECF No. 81.) Progressive has joined Travelers’ Motion for Summary 

Judgment, and also filed its own Motion for Summary Judgment on the merits. (ECF No. 86.)

For the reasons that follow, the district judge should grant defendants’ motions for summary 

judgment and deny FHCO’s motion for summary judgment.

BACKGROUND

FHCO is a non-profit organization whose goals include the “elimination of all forms of 

illegal housing discrimination” and “the promotion of equal opportunity in the renting, 

purchasing, financing, and advertising of housing.” (Compl. ¶ 3.) To accomplish these goals, 

FHCO’s activities include investigating reports of housing discrimination, conducting tests of

housing facilities to determine compliance with fair housing laws, taking steps to counteract and 

eliminate discriminatory housing practices, and providing outreach and education to the 

community regarding fair housing. (Id.)

 

stipulated to the dismissal of all claims against these seven entities, as they did not write 

homeowners insurance in Oregon during the relevant time period. (See ECF Nos. 34 and 35.)

2 Oregon’s fair housing law mirrors federal fair housing law, and the Oregon statute is 

generally interpreted consistently with its federal counterpart. Fishing Rock Owners’ Ass’n v. 

Roberts, 6 F. Supp. 3d 1132, 1138 n.1 (D. Or. 2014); Fair Hous. Council of Or. v. Brookside 

Vill. Owners Ass’n, No. 3:08-cv-3127-ST, 2012 WL 8017842, at *27 (D. Or. Oct. 19, 2012). 

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In recent years, FHCO has dramatically increased its enforcement activities. During the 

three-year period from June 30, 2011 through June 2014, FHCO’s annual expenses for its 

enforcement programs rose from $7,955 to approximately $1,150,000, or roughly from 2% to 

91% of its annual budget. (McGuire Dep. at 51:23-52:25; 56:9-67:19; McGuire Dep. Exs. 43, 44, 

45, and 46.) During the same period, FHCO’s expenditures for education and outreach decreased 

from approximately $361,519.93 to approximately $89,000. (Id.) FHCO’s shift in focus from 

education and outreach to enforcement was primarily driven by the government grants it 

received. (McGuire Dep. at 67:20-22.)

As part of its enforcement efforts, FHCO uses testers to determine how persons and 

entities that are subject to fair housing laws treat members of protected classes. (Decl. of Pegge 

McGuire in Supp. of Pl.’s Mot. for Summ. J. (“McGuire Decl. I”) ¶ 5.) Testers are persons who, 

without the intent to buy a house or purchase homeowners insurance, gather information about 

housing and homeowners insurance practices in order to determine whether discriminatory 

housing practices are occurring. (Id.)

In addition, FHCO regularly conducts fair housing training seminars for landlords 

throughout the state. (Id. ¶ 3.) At some of these seminars, landlords informed FHCO 

representatives that they had been told by their liability insurers that their policies would be 

canceled, or their premiums would be increased, if they allowed pit bulls on their property as 

assistance animals. (Id.)

FHCO decided to test companies that offer homeowners insurance in Oregon in order to 

determine if the companies with pit bulls on their breed restriction list would make exceptions to 

those policies if informed that the pit bull in question was an assistance animal. (Id. ¶¶ 4-5.)

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Travelers sells homeowners insurance both directly and through independent agents such 

as Progressive. Prior to initiating testing, FHCO had not received any specific complaints 

regarding Travelers, but selected the company as a testing target because it understood that 

Travelers was one of the larger providers of homeowners insurance in the United States. 

(Bennett Dep. at 40:4-23.) FHCO designed tests in which each tester would call Travelers and 

pose as an individual who suffered from a disability and wished to use a pit bull as an assistance 

animal. (McGuire Decl. I ¶ 5.) FHCO conducted four such tests in this case, and bases its motion 

for summary judgment on the results of two of these tests.3

In the first such test, a tester called an employee of Progressive, an independent insurance 

agent that offers Travelers insurance through an agency contract with Travelers. (Tester Alpha 

Ex. 1 at 2; Progressive’s Interrog. Resp. No. 1.) The tester asked for a quote for a Travelers 

homeowners insurance policy, and stated that he owned a pit bull as an assistance animal. (Tester 

Alpha Ex. 1 at 2.) The Progressive employee called a Travelers underwriter to ask if Travelers 

would make an exception to Travelers’ breed restrictions. (Id.) The underwriter stated that 

Travelers would not make an exception, and the Progressive employee conveyed this to the 

tester. (Id.)

In the second test, a tester attempted to obtain an insurance quote directly from a 

representative of Travelers. (Tester Beta Ex. 1 at 2.) The tester stated that she owned a pit bill as 

an assistance animal, and Travelers declined to offer a quote for homeowners insurance because 

of the presence of a pit bull in the home. (Id.)

 3 In the other two tests, the parties appear to dispute whether the testers adequately 

disclosed the existence of a disability and requested a reasonable accommodation in such a way 

that would trigger the provisions of the FHA. (Compare ECF No. 74 at 11, with ECF No. 92 at 

10 n.1.)

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ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows there is no genuine dispute as to 

any material fact and the movant is entitled to a judgment as a matter of law.” Fed R. Civ. P. 

56(a). The party seeking summary judgment bears the initial burden of demonstrating that no 

genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All 

material facts are resolved in a light most favorable to the nonmoving party. Id. at 331. The court 

must accept all evidence and make all inferences in favor of the nonmoving party. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

II. DISCUSSION

Both Travelers and Progressive seek summary judgment on the basis that FHCO has not 

established “injury in fact” sufficient to confer Article III standing to bring this action. To 

establish constitutional standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that 

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) 

the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as 

opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends 

of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). Courts utilize the same 

analysis to determine standing for both individual and organizational plaintiffs. La Asociacion 

De Trabajadores De Lake v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (citing 

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)). Plaintiff bears the burden of 

establishing standing, and because its standing is challenged at the summary judgment stage, 

plaintiff must set forth specific facts to show each of the elements of standing. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 561 (1992); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 

884-85 (1990).

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In order to satisfy the Article III requirement of injury in fact, a fair housing organization 

suing to enforce the provisions of the FHA must demonstrate more than merely a “setback to 

[its] abstract social interests,” but rather a “concrete and demonstrable injury to the 

organization’s activities” resulting in a “consequent drain on the organization’s resources.”

Havens, 455 U.S. at 379. The Ninth Circuit has interpreted Havens to mean that “an organization 

may satisfy the Article III requirement of injury in fact if it can demonstrate: (1) frustration of its 

organizational mission; and (2) diversion of its resources to combat the particular housing 

discrimination in question.” Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 

2004) (citing Fair Hous. of Marin v. Combs (Combs II), 285 F.3d 899, 905 (9th Cir. 2002)).

A. Frustration of Mission

Defendants claim that their conduct could not have frustrated FHCO’s mission of 

eliminating housing discrimination because FHCO explicitly advances this mission through 

enforcement activities, which consume over 90% of FHCO’s resources. (McGuire Dep. at 67.)

Defendants argue that FHCO’s enforcement activities cannot simultaneously advance and 

frustrate its mission at the same time.

While defendants’ position is appealing at first blush,

4 it does not accurately reflect the 

state of the law in the Ninth Circuit. In Havens, the Supreme Court found organizational standing 

where a fair housing organization alleged that its mission was to “assist equal access to housing 

through counseling and other referral services,” and that defendant’s discriminatory housing 

 4 Indeed, Judge Ikuta’s persuasive dissent in Fair Hous. Council of San Francisco Valley 

v. Roomate.com, 666 F.3d 1216 (9th Cir. 2012) advances a similar argument, noting that while 

the Ninth Circuit has held that “an organization with a social interest in advancing enforcement 

of a law [is] injured when the organization spen[ds] money enforcing that law,” this injury 

“looks suspiciously like a harm that is simply ‘a setback to the organization’s abstract social 

interests,’” the very thing the Supreme Court has held to be insufficient to establish injury in fact. 

Id. at 1226 (quoting Havens, 455 U.S. at 379).

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practices had “impaired [the organization’s] ability to provide counseling and referral services 

for low- and moderate-income home-seekers.” Havens, 455 U.S. at 379. The Ninth Circuit, 

however, has significantly relaxed this prong of the organizational standing analysis, and has 

held that “[a]ny violation of the FHAA” by definition frustrates the mission of a fair housing 

organization whose goals include the elimination of housing discrimination. Smith, 358 F.3d at 

1105. 

FHCO’s organizational goals include the “elimination of all forms of illegal housing 

discrimination” and “the promotion of equal opportunity in the renting, purchasing, financing, 

and advertising of housing.” (Compl. ¶ 3.) FHCO alleges that defendants have violated the FHA 

by, inter alia, refusing to waive Travelers’ breed restriction policy when necessary to provide a 

reasonable accommodation to purportedly disabled testers. (Id. ¶ 25.) These allegations satisfy

the “frustration of mission” requirement for organizational standing as set forth in this Circuit.

B. Diversion of Resources

In addition to demonstrating a frustration of its mission, plaintiff must also establish that 

defendants’ actions required it to divert resources that it would have spent in other ways. Comite 

de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F3d 936, 943 (9th Cir 2011).

FHCO alleges that it has been forced to divert resources toward several different types of 

expenditures, all of which can be grouped into two categories: testing costs (including training 

and compensating testers, paying for staff time to develop and analyze tests, and diversion of 

staff time from other activities to testing-related activities) and anticipated future expenses 

(including anticipated remedial outreach and education efforts, and future monitoring of 

defendants’ actions). (McGuire Decl. I ¶¶ 7-9; Decl. of Pegge McGuire in Supp. of Pl.’s Resp. to 

Travelers Defs.’ Mot. for Summ. J. (“McGuire Decl. II”) ¶¶ 4-6.)

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Defendants contend that plaintiff’s testing costs are actually “litigation costs,” and 

therefore excluded from consideration in the Court’s standing analysis. Furthermore, defendants 

argue that FHCO’s “anticipated” future spending is too speculative and remote to confer Article 

III standing. The Court agrees.

1. Testing Costs

Plaintiff alleges that its resources have been diverted to the cost of training and 

compensating testers, paying for staff time to develop and analyze tests, and diverting staff time 

from other activities to testing-related activities. (McGuire Decl. I ¶¶ 7-9.) Put another way, 

plaintiff claims that it has diverted its resources in order to test defendants to determine their 

compliance with the FHA and gather evidence of FHA violations regarding pit bull service 

animals.

Defendants argue that these testing costs should be excluded from the Court’s standing 

analysis because they are actually “litigation costs.” The Ninth Circuit has followed the Third 

Circuit, Fifth Circuit, and the D.C. Circuit in ruling that a “diversion of resources” toward 

litigation expenses cannot establish Article III standing. Redondo Beach, 657 F.3d at 943

(“[S]tanding must be established independent of the lawsuit filed by the plaintiff.”); La 

Asociacion De Trabajadores, 624 F.3d at 1088 (holding that an organization “cannot 

manufacture [an] injury by incurring litigation costs or simply choosing to spend money fixing a 

problem that otherwise would not affect the organization at all.”).

While the Ninth Circuit has not explicitly analyzed what constitutes “litigation costs” in 

this context, the D.C. Circuit has addressed the issue at length. In Fair Emp’t Council of Greater 

Washington v. BMC Mktg., 28 F.3d 1268 (D.C. Cir. 1994), the D.C. Circuit “explicitly reject[ed] 

the . . . suggestion that the mere expense of testing [a defendant] constitutes ‘injury in fact’ fairly 

traceable to [defendant’s] conduct.” Id. at 1276. The D.C. Circuit went on to explain that a fair 

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housing organization’s diversion of resources in order to test a defendant was a “self-inflicted”

injury and could not confer Article III standing. Id. at 1277. It is worth noting here that the Ninth 

Circuit has not only expressly followed the D.C. Circuit in concluding litigation costs do not

confer standing on an organizational plaintiff, but also specifically cited BMC when it noted that 

“the law of [the D.C. Circuit] is not different from the law” applied by the Ninth Circuit in 

determining standing under the FHA. Combs II, 285 F.3d at 903-904. The D.C. Circuit has since 

elaborated that the critical question when examining a plaintiff’s purported diversion of 

resources is “whether they undertook the expenditures in response to, and to counteract, the 

effects of the defendants’ alleged discrimination, rather than in anticipation of litigation.” Equal 

Rights Ctr. v. Post Props., 633 F.3d 1136, 1140 (D.C. Cir. 2011). A “diversion of resources to 

litigation or investigation in anticipation of litigation does not constitute an injury in fact 

sufficient to support standing . . . .” Id. (emphasis added) (citing BMC, 28 F.3d at 1276-77).

Under this rule, FHCO’s testing costs cannot support Article III standing. This is 

particularly true given that plaintiff appears to have conceded that its testing of defendants was 

conducted exclusively for litigation purposes. 

On May 3, 2016, Travelers moved to compel FHCO to produce the names of all 

insurance companies on which FHCO conducted the same or similar testing regarding insurance 

applicants with pit bull assistance animals, all documents related to such testing, and all 

documents related to any other issue testing that FHCO conducted against Travelers.5 (ECF No. 

51.) While litigating the motion to compel, plaintiff repeatedly averred that its testing was 

conducted in anticipation of litigation and vigorously disputed the notion that FHCO’s testing in 

this case was performed for any purpose other than litigation. (ECF No. 54 at 7) (“The 

 5 On July 18, 2016, the Court denied this motion as moot, in light of the pending motions 

for summary judgment filed by the parties. (ECF No. 90.)

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documents related to testing of other insurance companies and other testing of the Travelers 

Defendants were prepared because of the prospect of litigation. . . . Simply put, if Plaintiff was 

not considering pursuing litigation against the test subject, the documents [relating to testing] 

would not exist.”).

These arguments were supported by the sworn deposition testimony of plaintiff’s 

Enforcement Coordinator, Malia Bennett, who testified that although plaintiff sometimes utilizes 

testing data to informally approach a housing provider in lieu of filing a complaint, no such 

informal resolution was ever considered with regard to plaintiff’s testing on the issue of pit bull 

service animals. (Bennett Dep. at 202:10-203:11) (plaintiff did not consider informal resolution 

because it “believed that filing a case would be the most impactful, efficient way to address the 

issue”).

Given these concessions, plaintiff’s testing was not merely “investigation in anticipation 

of litigation,” Equal Rights Ctr., 633 F.3d at 1140, but investigation exclusively for the purpose 

of litigation, and therefore must be excluded from the standing analysis under Equal Rights 

Center.

In response, FHCO urges the Court to disregard Equal Rights Center and to focus instead 

on two cases that it claims stand for the proposition that testing costs can confer Article III 

standing: Combs II, 285 F.3d 899 and Fair Hous. Council of Or. v. Brookside Vill. Owners 

Ass’n, No. 3:08-cv-3127-ST, 2012 WL 8017842 (D. Or. Oct. 19, 2012). FHCO argues that the 

categories of damages claimed in Combs “are identical to the categories of damages claimed by 

FHCO,” are not litigation costs, and are “damages that give the organization standing to bring a 

claim under the FHA.” (Pl.’s Supp. Br. at 4.) This analysis does not survive closer scrutiny.

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An initial obstacle to plaintiff’s efforts to distinguish between the Ninth Circuit’s 

reasoning in Combs II and the standing analysis outlined by the D.C. Circuit is that Combs II

itself explicitly cites the D.C. Circuit’s decision in BMC when noting that “the law of [the D.C. 

Circuit] is not different” from the law applied by the Ninth Circuit in determining standing under 

the FHA. Combs II, 285 F.3d at 903-04. As previously noted, BMC “explicitly reject[ed] the . . . 

suggestion that the mere expense of testing [a defendant] constitutes ‘injury in fact’ fairly 

traceable to [defendant’s] conduct.” 28 F.3d at 1276.

But there is a more serious flaw in plaintiff’s argument. The Ninth Circuit held that the 

plaintiff in Combs II had standing because its resources were diverted above and beyond 

litigation costs. The Court went on to note that the district court had awarded $14,217 for 

diversion of resources and $10,217 for frustration of mission damages. 285 F.3d at 905. These 

amounts represent all damages won by plaintiff in the district court—not, as FHCO claims, a list 

of the “damages that gave the organization standing to bring a claim under the FHA.” (Pl.’s 

Supp. Br. at 4.) Indeed, the $14,217 awarded by the district court for diversion of resources 

explicitly included litigation costs, which plainly cannot confer standing. Fair Hous. of Marin v. 

Combs (Combs I), No. C97-1247, 2000 WL 365029, at *3 (N.D. Cal. Apr. 3, 2000) (diversion of 

resources damages include $12,179 for “the cost of [plaintiff organization] worker time in 

investigating and litigating” the case, as well as attorney “fees and costs”) (emphasis added). In 

other words, the simple fact that the plaintiff in Combs was awarded compensation for four 

categories of “diversion of resources” damages does not automatically mean that each of these 

four damage categories is sufficient to confer Article III standing.6

 6 The Ninth Circuit does not mention the various damage categories awarded by the 

district court for “diversion of resources,” let alone discuss which of these damages qualify as 

litigation costs, and which do not. See Combs II, 285 F.3d at 905.

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FHCO claims that its alleged damages are “identical” to those in Combs, but this is 

incorrect. The plaintiff in Combs alleged—and was awarded—diversion of resources damages 

for $1,140 that it had already spent participating on the Marin County Board of Supervisors’

Task Force on Housing Discrimination in order to address defendant’s housing practices.7

Combs I, 2000 WL 365029, at *3. Education and outreach programs such as this are clearly not 

associated with litigation, and courts have previously found standing where plaintiffs establish 

that a defendant’s actions forced a diversion of resources toward such programs. See, e.g.,

Roomate.com, 666 F.3d 1216 at 1219 (finding standing where, prior to commencing litigation, 

plaintiffs “started new education and outreach campaigns targeted at discriminatory roommate 

advertising” in response to defendant’s alleged violations). FHCO, however, has not established 

any such pre-litigation diversion of resources, but instead argues that it plans to spend money on 

remedial outreach, education, and monitoring in the future. As the Court explains below, see 

infra Part II.B.2, this is a critical distinction.

FHCO also relies on the fact that it was previously found to have standing in fair housing 

litigation several years ago when it alleged similar damages. See Brookside, 2012 WL 8017842. 

Unlike Combs II, the Court in Brookside specifically addressed the question of whether testing 

expenses should be considered in determining injury in fact for Article III standing. Brookside

ultimately concluded that “time and money spent investigating potential discrimination do not 

negate standing simply because they relate to the development of a lawsuit. They also can be 

regarded as an independent activity associated with the identification and counteraction of the 

defendants’ discriminatory practices.” 2012 WL 8017842, at *13. While this logic might be true 

 7 The district court declined to award damages for plaintiff’s participation on a second 

committee because it found that defendant had not been shown to be the “but for” cause of those 

expenses. Combs I, 2000 WL 365029, at *3.

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in the abstract, it is inapplicable where plaintiff admits that the time and money it spent 

investigating defendants was exclusively for the purpose of litigation. See supra at 9-10. On these 

facts, plaintiff’s testing costs cannot be regarded as an “independent activity” separate from 

litigation costs, and accordingly do not represent sufficient “injury in fact” to confer Article III 

standing.

2. Future Outreach, Education, and Monitoring

The only other damages FHCO claims beyond testing costs are anticipated future 

expenses, including anticipated remedial outreach and education seminars, as well as anticipated 

future monitoring of defendants’ actions. (McGuire Decl. II ¶¶ 5-6.)

In order to demonstrate Article III standing, a plaintiff must establish injury in fact that is 

both “concrete and particularized” and “actual or imminent” at the time it filed suit. Defenders of 

Wildlife, 504 U.S. at 560. A threatened injury that has not yet occurred at the time of filing “must 

be certainly impending to constitute injury in fact,” and “‘[a]llegations of possible future injury’

are not sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (alteration in 

original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).

Here, FHCO has not alleged that it has already been forced to divert its resources toward 

remedial outreach, education, and monitoring efforts, but rather than it “anticipates” doing so on

some unspecified future date. (Pl.’s Opp. to Travelers’ Mot. for Summ. J. at 11; McGuire Decl. II 

¶¶ 5-6.) Therefore, FHCO must set forth specific facts demonstrating that these anticipated future 

expenses constitute an injury in fact that was “actual or imminent” at the time it filed suit. 

Defenders of Wildlife, 504 U.S. at 560.

As an initial matter, FHCO has suggested that it is unnecessary to establish whether its 

planned future expenses were “imminent” or “certainly impending” at the time it filed suit,

because the “injury in fact” that these expenses are designed to remedy—defendants’ alleged 

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discrimination—has already occurred.8 The problem with this argument is that the housing 

discrimination itself is precisely the type of “setback to [plaintiff’s] abstract social interests” that 

the Supreme Court has held does not confer standing. Havens, 455 U.S. at 379. Under Havens

and its progeny, the “injury in fact” that plaintiff must allege and prove to establish standing is a 

diversion of the organization’s resources. It is this diversion of resources—not defendants’

discrimination—that must be “actual or imminent” before plaintiff has standing under Article III.

Despite having the burden to establish standing, plaintiff has identified no evidence in the 

record suggesting that these planned future expenses were “actual or imminent” when it filed suit 

nearly 18 months ago. Instead, FHCO cites two cases as examples where (1) damages for “future 

planned activities” were alleged; and (2) the court found that plaintiff’s resources had been 

diverted. (Pl.’s Opp. to Travelers’ Mot. for Summ. J. at 14) (citing Brookside, 2012 WL 

8017842, at *13; Combs II 285 F.3d at 905; and Combs I, 2000 WL 365029, at *4).

FHCO reads too much into these cases: just because the court ultimately found standing 

in a case where plaintiffs alleged damages for future expenses does not mean that the court found 

standing because of this type of “anticipated future spending.” Both Combs and Brookside are 

silent on the issue of whether future planned expenses are sufficiently “actual,” “imminent,” or 

“certainly impending” as required by Article III. Defenders of Wildlife, 504 U.S. at 560; Clapper, 

133 S. Ct. at 1147. As defendants correctly note, in both Combs and Brookside, the courts found 

that the plaintiffs’ resources had already been diverted, giving the court in each case an 

independent basis to find injury in fact.9 Brookside, 2012 WL 8017842, at *13 (noting that 

 8 At oral argument, FHCO analogized its situation to that of an accident victim, who 

suffers a redressable injury at the moment of collision even if he has not yet paid for car repairs 

at the time he files suit.

9 Indeed, Combs II explicitly categorizes the damages for plaintiff’s envisioned future 

outreach as compensation for “frustration of mission,” and these costs were not counted (by 

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plaintiff’s “past diversion of resources” totaled $4,229); Combs I, 2000 WL 365029, at *3

(awarding $12,179 in past diversion of resources damages, including $1,140 in non-testing, nonlitigation costs).

In short, FHCO asks this Court to conclude that FHCO’s plans for future action on some 

unspecified future date10 are sufficient to establish injury in fact. Neither Combs II nor Brookside

compel such a result, and this Court finds that FHCO has failed to meet its burden to establish 

that these expenses were “actual or imminent” at the time it filed suit. Clapper, 133 S. Ct. at

1147 (noting that “[a]llegations of possible future injury are not sufficient” to confer Article III 

standing) (internal citation omitted); accord Equal Rights Ctr., 633 F.3d at 1141-42 (holding that 

plaintiff’s proposed future testing and monitoring programs were insufficient to confer standing 

where plaintiff made no showing that implementation of the program was “actual or imminent”

when the complaint was filed); Fair Hous. Council of Suburban Philadelphia v. Montgomery 

Newspapers, 141 F.3d 71, 77 (3d Cir. 1988) (“[I]nchoate plans for future programs are 

insufficient to demonstrate injury for purposes of Article III.”).

CONCLUSION

“[A]n organization cannot . . . manufacture the injury necessary to maintain a suit from 

its expenditure of resources on that very suit . . . .” Combs II, 285 F.3d at 905 (quoting Spann v. 

Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (Ginsburg, J.)). Unfortunately, it appears 

that this is what FHCO has done under the somewhat unique facts of this case. Because FHCO

 

either the district court or the Ninth Circuit) as a “diversion of resources” for standing purposes. 

See Combs II 285 F.3d at 905; Combs I, 2000 WL 365029, at *4.

10 Although FHCO’s testing concluded over two years ago, it admits that it has yet to 

undertake any of its planned outreach, education, or monitoring programs.

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has not established an “actual or imminent” diversion of resources to activities other than 

litigation, it lacks standing under Article III to bring this particular action.

The Court therefore recommends that the district judge GRANT Defendants’ Motions for 

Summary Judgment (ECF Nos. 84 and 86), and that the district judge DENY Plaintiff’s Motion 

for Partial Summary Judgment (ECF No. 57). The Court further recommends that the district 

judge enter a Judgment dismissing all claims against defendants.

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, the Findings and Recommendation will go under advisement on that date. If objections 

are filed, a response is due fourteen (14) days after being served with a copy of the objections. 

When the response is due or filed, whichever date is earlier, the Findings and Recommendation 

will go under advisement. 

DATED this ___ day of December, 2016. 

STACIE F. BECKERMAN

United States Magistrate Judge 

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Case 3:15-cv-00925-SB Document 118 Filed 12/02/16 Page 16 of 16