*

Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit

Judge for the Fourth Circuit, sitting by designation. 

 1Section 804 of the FHA provides, in relevant part, that

it shall be unlawful—

(a) To refuse to sell or rent ... a dwelling to any

person because of race, [or]

(c) To make ... any statement ... with respect to the

sale or rental of a dwelling that indicates any

preference, limitation, or discrimination based on race

United States Court of Appeals,

Eleventh Circuit.

No. 95-4377.

Annette BANAI, Janos Banai, Petitioners,

v.

The SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT, on Behalf of Steve Ellis TIMES, Betty Brinson and

United States of America, Respondents.

Jan. 7, 1997.

Petition for Review of an Order of the United States Department of

Housing and Urban Development. (HUDALJ 04-93-2060-8).

Before TJOFLAT, Circuit Judge, and RONEY and PHILLIPS*

, Senior

Circuit Judges.

TJOFLAT, Circuit Judge:

This case comes before us on appeal from a Final Decision and

Order of the Secretary of the Department of Housing and Urban

Development ("HUD"), which affirmed the Initial Decision and Order

of an administrative law judge ("ALJ"). After a hearing, the ALJ

determined that the appellants, Janos and Annette Banai, violated

section 804 of the Fair Housing Act (the "FHA"), 42 U.S.C. §

3604(a) and (c), by refusing to rent their house on account of the

prospective lessees' race.1

 The Secretary thereafter issued an in
... or an intention to make any such preference,

limitation or discrimination.

42 U.S.C. § 3604 (1994). 

personam order directing, inter alia, that the Banais pay $70,000

in compensatory damages to Steve Times and Betty Brinson, the

victims of the Banais' discrimination. The Banais concede that

they violated the FHA, but argue that the award of $70,000 is

excessive. Because we find that the award is supported by

substantial evidence on the record, we affirm.

I.

In August 1992, Times and Brinson, an unmarried black couple,

lost their house in Princeton, Florida, to damage caused by

Hurricane Andrew. They began searching almost immediately for a

residence to rent, but the hurricane had created a critical

shortage of residential property. Times and Brinson lived at

Brinson's place of business for a short time, stayed with friends

for a few days, and then moved into a hotel when they began

receiving money from their insurance company for living expenses.

While staying at the hotel, Brinson fell in the shower and was

seriously injured; she was hospitalized as a result. Brinson's

injuries impaired her mobility and required substantial physical

therapy.

Shortly after Times and Brinson began looking for a home to

rent, Annette and Janos Banai, a white couple residing in

Lindhurst, New York, decided to place the house they owned in

Hollywood, Florida, on the rental market. The Banais had learned

that Hurricane Andrew had left many Miami-area residents without
homes and hoped that they could help victims of the hurricane by

renting their house. They contacted Manhattan Group Real Estate,

Inc. ("Manhattan"), and arranged for that company to list their

house for rent. Sylvia Arias, then an employee of Manhattan,

placed an advertisement for the house in a local newspaper.

While Brinson was still hospitalized, Times responded to this

advertisement, and Arias showed him the Banais' house. The house

suited Times and Brinson given Brinson's injuries: its one-story

floor plan would allow Brinson to move around easily, and its

proximity to her physical therapist was convenient. Times told

Arias that he and Brinson wanted to rent the house. Arias believed

that Times and Brinson were fully qualified to rent the house.

Thus, she told Times that she foresaw no problems with the rental,

but needed to confirm it with the Banais. The prospect of an end

to their housing problems was a great relief to Times and Brinson.

Unfortunately for Times and Brinson, Arias' confirmation call

to Annette Banai was not the mere formality she had expected.

Banai asked Arias about Times and Brinson's race; when told that

they were black, Banai responded that she could not rent to blacks

because the neighbors would disapprove. Upon learning of this

conversation, Arias' supervisor at Manhattan called Banai and told

her that Arias should not have responded to Banai's question about

Times and Brinson's race, that a refusal to rent based on race was

unlawful, and that if Banai did not change her mind, Manhattan

would terminate the listing agreement. Banai responded that she

believed that she could rent to whomever she pleased and would not

change her mind. Manhattan terminated the agreement, and Arias
 2

The FHA identifies people who believe that they have

suffered from housing discrimination as "aggrieved persons," 42

U.S.C. § 3602(i), and provides several avenues of redress for

them. See 42 U.S.C. §§ 3610, 3612, 3613, 3614. An aggrieved

person may file an administrative complaint with the Secretary of

HUD, as Times did here. See 42 U.S.C. § 3610(a)(1)(A)(i). In

that case, the aggrieved person becomes the "complainant," and

the alleged discriminator becomes the "respondent." See 42

U.S.C. § 3602(j), (n). The Secretary can also file a complaint

on his own initiative. 42 U.S.C. § 3610(a)(1)(A)(i).

When a complaint is filed, the Secretary must engage in

"conciliation" in an effort to resolve the dispute. 42

U.S.C. § 3610(b)(1). At the same time, the Secretary must

investigate the complaint to determine whether "reasonable

cause" exists to believe a violation of the FHA has

occurred. 42 U.S.C. § 3610(g)(1). If reasonable cause is

told Times the bad news and recommended that he obtain a lawyer.

Times continued to search for a house or an apartment to rent

while Brinson remained hospitalized, but none suited them. Because

the hotel did not accommodate Brinson's special needs resulting

from her injuries, Times and Brinson were forced to move in with

Times' mother and sister. This arrangement was also unsatisfactory

because the apartment was too small for the four of them and

because it was located far from Brinson's physical therapist. This

environment placed stress on Times and Brinson's relationship and

created tension between the couple and Times' family. Some time

later, Times and Brinson received enough money from the insurance

company to purchase a mobile home. This arrangement was also far

from ideal as strong winds would shake the home during storms, and

rats lived beneath it. Eventually, for reasons not related to the

Banais' discrimination, Times and Brinson ended their relationship.

Times filed an administrative complaint against the Banais on

behalf of himself and Brinson alleging housing discrimination in

violation of the FHA.2 After investigating the complaint and
not found, the Secretary must dismiss the complaint. 42

U.S.C. § 3610(g)(3). If reasonable cause is found, the

Secretary must issue a charge setting forth the basis of the

alleged violation. 42 U.S.C. § 3610(g)(2). At that point,

the aggrieved person, the Secretary, or the respondent may

elect to have the case heard in district court, in which

case the Attorney General will file suit in district court

on behalf of the aggrieved person. 42 U.S.C. § 3612(a).

If no election is made, the Secretary must prosecute

his charge in a HUD administrative hearing. 42 U.S.C. §

3612(b). At this hearing, an ALJ receives evidence in

accordance with the Federal Rules of Evidence, 42 U.S.C. §

3612(c), and thereafter makes findings of fact and

conclusions of law. 42 U.S.C. § 3612(g)(3). If the ALJ

concludes that a violation has occurred, he may order the

respondent to pay the claimant his or her actual damages,

may assess a civil penalty, and may provide such other

equitable relief as may be appropriate. 42 U.S.C. §

3612(g)(3). The ALJ's decision is reviewable by the

Secretary within 30 days, after which the decision becomes

final and is appealable directly to the court of appeals for

the circuit in which the FHA violation occurred. 42 U.S.C.

§ 3612(i).

This administrative remedy is not exclusive, however. 

An aggrieved person under the FHA need not file an

administrative complaint with the Secretary. The FHA also

authorizes an aggrieved person to file a civil action in

district court. 42 U.S.C. § 3613(a)(1)(A). Even if an

administrative complaint has been filed, an aggrieved person

may file suit in district court until an ALJ has begun

hearings on the matter. See 42 U.S.C. § 3613(a)(3). The

district court, on a finding that a violation has occurred,

may enter a judgment awarding the plaintiff actual and

punitive damages, and may order such equitable relief as may

be appropriate. 42 U.S.C. § 3613(c).

The FHA confers jurisdiction on the district court in

two other situations. The first is when a party files an

election to "opt out" of the administrative forum, forcing

the Attorney General to file suit in district court to

"prosecute" the alleged violation. 42 U.S.C. §§ 3612(a) &

3612(o)(3). In that case, the aggrieved party may intervene

in the suit. 42 U.S.C. § 3612(o)(2). Upon finding a

violation, the court can award actual and punitive damages,

which accrue to the benefit of the aggrieved party unless

that party has failed to intervene in the civil action or

has failed to comply with the district court's discovery

requests. 42 U.S.C. §§ 3612(o), 3613.

In addition, the Secretary may bypass the
administrative forum and bring suit in district court when

the case involves a "pattern or practice" of discrimination

or affects a group of people and is of "general public

importance," 42 U.S.C. § 3614(a), or when the case arises

out of an agreement entered into as a result of the

conciliation efforts described above. 42 U.S.C. § 3614(b). 

On a finding of a violation of the FHA in that case, the

district court may order appropriate equitable relief and

may assess civil penalties. 42 U.S.C. § 3614(d).

In each of these cases, the district court can award

reasonable attorneys' fees and costs to a prevailing party

other than the United States. 42 U.S.C. §§ 3612(p),

3613(c)(2), 3614(d)(2). 

finding probable cause to believe a violation had occurred, the

Secretary of HUD issued a charge on behalf of Times and Brinson

against the Banais. Because none of the parties filed a demand to

have the case heard in district court, the matter was referred to

an ALJ. See 42 U.S.C. § 3612(b).

The ALJ held an administrative hearing during which several

witnesses gave testimony and other evidence was submitted. In

addition to the facts set forth above, the ALJ found that Times and

Brinson were "devastated" and "angry" when they learned that the

Banais had refused to rent to them because they were black. It was

the first overt discrimination that either had personally

experienced. Brinson could not believe that "in th[is] day and age

... because of my color I cannot rent this house. Not because I am

not qualified. Because I am black." The ALJ found that the pain

caused by this discrimination continued at least through the time

of the administrative hearing. Times continued to worry that the

experience would be repeated when he looked for housing in the

future.

Following the conclusion of this hearing, the ALJ issued an
 3

Section 3612(g)(3) provides that upon finding a violation

of the FHA, the ALJ "shall promptly issue an order for such

relief as may be appropriate, which may include actual damages

suffered by the aggrieved person and injunctive or other

equitable relief." 42 U.S.C. § 3612(g)(3) (1994). In addition

to ordering the Banais to compensate Times and Brinson in money

damages, the ALJ ordered Manhattan and Arias to pay civil

penalties. They have not appealed this decision. 

 4These "actual damages" are compensation for the victim's

injuries, not punishment for the perpetrator's wrongdoing. The

act provides separate punitive remedies. If the case is tried in

district court, punitive damages are available. If, as here, the

case is tried in an administrative hearing, punitive damages are

unavailable, but the ALJ is authorized to assess a civil penalty. 

See supra note 2. 

Initial Decision and Order in which he concluded that the Banais

had violated 42 U.S.C. § 3604(a) and (c). On the basis of this

conclusion, the Secretary ordered the Banais to pay $35,000 to

Times and $35,000 to Brinson as compensatory damages for their

injuries.3 The Banais concede that they violated the FHA; they

argue only that the damages awarded here were excessive.

II.

A.

 We have jurisdiction to hear this appeal pursuant 42 U.S.C.

§ 3612(i). We will reverse an ALJ's factual determinations, and

thus the agency's final decision, only if they are unsupported by

substantial evidence on the record. Secretary, U.S. Dep't Hous. &

Urban Dev. ex rel. Herron v. Blackwell, 908 F.2d 864, 870 (11th

Cir.1990).

B.

 Victims of discrimination in violation of the FHA are

entitled to "actual damages."4

 Although the statute provides

little guidance beyond this statement, anger, embarrassment, and
emotional distress are clearly compensable injuries under this

standard. See Blackwell, 908 F.2d at 872-73. The ALJ found that

Times and Brinson had suffered such injuries. The question before

us, therefore, is whether the record supports those findings.

III.

This is not a case of first impression in this circuit. In

Blackwell, we reviewed an ALJ's decision finding discrimination in

violation of the FHA and awarding damages for injuries sustained as

a result of the discrimination. That case involved a claim that

the defendant, Blackwell, refused to sell his house because of the

prospective buyers' race. Acting through an agent, Blackwell

signed a contract of sale with Terryl and Janella Herron, a black

couple. When Blackwell learned that the Herrons were black, he

found pretextual grounds to refuse to complete the sale. The house

was later leased to Brett and Audrey Cooper, a white couple. The

Coopers also pursued charges against Blackwell. They contended

that the publicity generated by the Herons' claim of racial

discrimination caused them considerable distress and anxiety.

In that case, we held that the ALJ's award of $40,000 to the

Herrons was "rational and fully supported by the record." Id. at

872. These damages served to compensate the Herrons for their

"embarrassment, humiliation, and emotional distress." Id.

(internal quotations marks omitted). In addition, we affirmed the

ALJ's award of $20,000 to the Coopers for their "embarrassment,

humiliation, and emotional distress" and for the "strain on "family

unity' " that resulted from publicity surrounding the episode. Id.

at 873. We found that these injuries were compensable under the
Act and that the damages award was rationally supported by the

record. Id.

In this case, the ALJ's award of damages is for injuries which

closely parallel those in Blackwell. The ALJ found that Times and

Brinson had suffered embarrassment and humiliation, the same

injuries suffered by the Herrons and Coopers in Blackwell. In

addition, a portion of the damages was compensation for the damage

done to Times and Brinson's relationship. This damage closely

parallels the injury to the Coopers' family unity in Blackwell.

The Banais contend, however, that the damages in Blackwell are

justified only because of the particular facts of that case. They

point out that the Herrons' injuries manifested themselves in

physical symptoms and that the Coopers feared for their children's

safety as a result of the public controversy surrounding their

case. While those factors were considered by the ALJ and this

court in affirming the damages in that case, the absence of those

facts in this case does not dictate a reversal of the ALJ's award.

 We note first that in Blackwell we affirmed the award of

damages; nothing in that case suggested a level at which the

damages awarded would have been excessive. The appellant cannot

cite Blackwell as an indication of a ceiling above which a damages

award would be considered excessive. In addition, our affirmance

in Blackwell was not conditioned on the presence of physical

symptoms or on the publicity surrounding the case. We listed these

as factors that the ALJ considered in determining the size of the

damages award. They suggest the seriousness of the injuries in

that case; different facts suggest the seriousness of the injuries
in this case.

The ALJ based his award on his finding that Times and Brinson

suffered "emotional distress for humiliation, embarrassment, anger,

inconvenience, and lost housing opportunity," as well as damage to

their relationship. The record supports the ALJ's decision even in

the absence of physical symptoms or publicity. First, the

hurricane had "devastated [Times and Brinson's] home, ... disrupted

their lives, [and] render[ed] them uncomfortable and insecure."

Given these facts, and the lack of adequate housing alternatives,

the Banais' refusal to rent their house to Times and Brinson was

particularly painful. In addition, the Banais' house offered

exactly the amenities that Brinson's injuries required: it was a

one story structure located close to her physical therapist. When

the Banais turned Times and Brinson away, they were left with the

alternatives of staying in a hotel that could not meet their needs

or moving in with Times' family. Neither arrangement was adequate

and their injuries were exacerbated as a result.

Finally, although Times and Brinson's ultimate decision to end

their relationship was not a direct result of the Banais'

discrimination, the ALJ found that the discrimination had injured

the relationship and accordingly based a portion of the award on

that injury. In short, while Times and Brinson did not suffer

physical manifestations of their injuries and were not subjected to

public scrutiny as a result of the Banais' discrimination, other

equally valid factors support the ALJ's determination.

IV.

For the foregoing reasons, we find that the damages award in
this case is supported by substantial evidence on the record.

AFFIRMED.

 . . . . .