William H. Rehnquist: We'll near argument next in No. 87-1882, Dean Neitzke or Neitzke v. Harry Lawrence Williams. You may proceed whenever you're ready, Mr. Spear.
Robert S. Spear: Mr. Chief Justice, and may it please the Court: This case was initiated by Mr. Williams, a prisoner at the Indiana State Reformatory, a maximum security institution, tendering the complaint for filing to the United States District Court for the Southern District of Indiana. This complaint was tendered pro se and pursuant to 28 U.S. Code, Section 1915 as a pauper's petition. It was a 42 U.S. Code, Section 1983 action. There were five defendants. The complaint alleged violations of the Eighth Amendment and also due process violations. The district court dismissed the entire case as frivolous, pursuant to Section 1915(d). Thereafter, the district court allowed on amendment and again dismissed the case. The Seventh Circuit affirmed this dismissal as to three of the defendants under both theories, and also as to the remaining two defendants under the due process theory, but revived the action as to the Eighth Amendment against Mr. Neitzke, the hospital administrator, and Dr. Chol, the medical director. In establishing this case, the Seventh Circuit set forth the following standard: "A frivolous complaint is one in which the petitioner can make no rational argument in law or facts to support his or her claim for relief. " And in making this holding, the court relied on the D.C. Circuit case of Brandon v. District of Columbia Board of Parole. The Seventh Circuit, therefore, clearly held that 28 U.S. Code, Section 1915 (d) is not synonymous with the test under 12(b)(6). The court specifically agreed with the district court that the Eighth Amendment allegations in this case failed to demonstrate the level of indifference necessary to survive the 12(b) motion under Estelle v. Gamble but nevertheless held that the case should be filed. It is the Petitioners' contention in this case that a complaint which fails to state a claim upon which relief can be granted is frivolous within the meaning of 28 U.S. Code, Section 1915(d). Section 1915 allows access to the federal courts for the poor, as set forth in decision of this Court in Adkins v. DuPont. There is an already established standard for 12(b)(6) for pro se complaints which is, when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This Court set forth this standard in Conley, reaffirmed it in Halnes, and indeed in Estelle v. Gamble. It's Petitioners' contention that this standard is low enough. The issues in this case deal with how the district courts should handle the congressional mandate of Section 1915(d) not to permit frivolous or malicious complaints under pauper's petitions. We are not addressing here the variety of methodology by which various circuit courts have tried to handle this problem. We are talking about the lowest permissible standard as opposed to another standard that may be established in a different circuit. It is Petitioners' contention that a complaint which does not meet the pro se test for a 12(b)(6) motion is a minimum beneath which no complaint should be allowed to be filed.
Speaker: When you say it doesn't meet the pro se test, Mr. Spear, you're talking about the rule that pro se complaints are liberally construed in favor of the plaintiff?
Robert S. Spear: Yes, Your Honor. The Petitioners in this case would submit that instead a test should be establishing using 12(b)(6) as the standard beneath which the legal sufficiency of the complaint should not be allowed to go for purposes of Section 1915(b).
Speaker: Mr. Spear, at least on, on the face of the language there appear to be differences between the two provisions, and it isn't really clear to me that they would necessarily be the same. Do you think that Rule 11, which is designed, according to the notes, to help eliminate frivolous claims, is implicated every time a complaint is dismissed under Rule 12(b)(6)?
Robert S. Spear: No, Your Honor, it is not. But it is a showing under Rule 11 that you must show, in order to avoid this sanction as a plaintiff, that you have a basis in fact and in law. If you do not have a basis in law, Rule 11 sanctions would apply in a situation where the standard was not closed, but not... would only apply... would not apply in those rare cases where it is not clear-cut whether or not the complaint fails to state a claim. In short, although many cases, perhaps most that reach this Court, there is a serious question of the sufficiency of the legality. At the district court level, the vast majority of complaints are fairly readily apparent whether they meet the 12(b)(6) standard.
Speaker: Well, do you think that the frivolous and malicious standard under the statute applies to factual as well as legal aspects of the complaint?
Robert S. Spear: Yes, Your Honor.
Speaker: You do?
Robert S. Spear: We'd submit, however--
Speaker: Does the district court have the power on its own sua sponte to inquire behind the fact of the complaint under 1915?
Robert S. Spear: --Apparently it does, Your Honor. We note in our brief that several circuits, specifically in at least one instance in the Second, and the Eleventh and the Fifth and the Fourth, rather frequently do this. Now, we are not suggesting--
Speaker: Could they refer it to a magistrate to find out some facts on whether to dismiss under 1915?
Robert S. Spear: --Yes, Your Honor, we believe they have that power... in fact, do so right now. That is not, however, the case that is in front of the Court today and we'd also point out, Your Honor, that probably when it talks about frivolous--
Speaker: Well, do you think under Rule 12(b) that one does that, or does one look just to the face of the complaint?
Robert S. Spear: --The face of the complaint, Your Honor. And we are only dealing with with the legal sufficiency here under a frivolous test. Normally one would suspect that since the language of the statute isn't disjunctive of frivolous or malicious... malicious may very well tend to be factual. For instance, if a party were to bring a hundred lawsuits within a period of a few weeks or multiple lawsuits against the same person for the same facts, that would tend to fall under the malicious side of the test. That's not what we have here. This is on the frivolous side of the test, and in front of us we have a pure legal test. We would submit further that the Rule 11 standard, which has been proposed by the Respondent in this case, is particularly inappropriate for use in this context. Rule 11 is used by the district courts as a sanction and a deterrent to paying plaintiffs and to their lawyers for filing complaints which are either not based correctly in the law or not based correctly factually. They have to meet both tests. It is not appropriate to use such a standard for plaintiffs who on their face cannot be deterred or, or punished in any fashion for bringing a frivolous complaint when they have, on their face, tendered a proper pauper's petition and literally have no assets upon which to levy. The test that we are attempting to have this Court establish, although it has not reached this Court yet, has already been established in our opinion in eight of the circuits, and only the Seventh Circuit and the D.C. Circuit have found that a complaint can go lower than a 12(b)(6) motion standard and still survive in some viable fashion. The test, in fact, is broader in both the Eleventh Circuit and, at least in one case, in the Second. We are not contending that here today because it has not simply reached this basis in this case. The standard method in the Southern District of Indiana and the Northern District is that a complaint is referred to a magistrate. The magistrate makes findings that, in fact, it states a claim. He has the power to order a file and then process is served.
Speaker: Well, Mr. Spear, you say that in the Southern District of Indiana the complaint is referred to a magistrate and the magistrate makes findings as to whether it states a claim?
Robert S. Spear: Your Honor, the magistrate examines the complaint and if it, in his opinion, states a claim, he has the power to order a file and process it, sir. If in fact in his opinion it does not state a claim, or is frivolous under the 1915(d) standard, he makes a recommendation and sends it to a district judge. And the district judge makes the determination of whether or not the complaint is filed or not filed.
Speaker: So, the magistrate in either of those situations doesn't make what are... what would normally be called factual findings?
Robert S. Spear: No, Your Honor. They're not factual findings. These are legal findings. And, in fact, in the Seventh Circuit the only test... there is no factual test prior to filing... the only test is the legal test.
Speaker: I thought you responded to me that it was perfectly proper under 1915 to make a factual inquiry?
Robert S. Spear: Yes, it is, Your Honor. But that is not the test the Seventh Circuit uses. The test that is used in other circuits makes those factual inquiries. In... in an adversarial proceeding in front of a magistrate sometimes... with lawyers on both sides. We're not suggesting that procedure here today. We... We have not reached that question. We have a single issue on the legal sufficiency at the single complaint under the current standards used by the Seventh Circuit. And we would submit that they have dropped below the permissible standard for 1915(d) in... contrary to what eight other circuits have held. So, there are multiple ways to deal with 1915(d). We're not suggesting there are not.
Speaker: Mr.--
Robert S. Spear: We're suggesting this is below--
Speaker: --Mr. Spear, can I just a... get a little bit more about the procedure you actually follow in the, in the Southern District of Indiana. You say the pro se complaint is filed. It's automatically referred by the clerk to a magistrate. Or does it go through the judge's office first?
Robert S. Spear: --It is tendered in the clerk's office, and from the clerk's office it goes to the magistrate.
Speaker: All right. And then the magistrate screens it and he decided whether it states a cause of action or not. And does he... does he--
Robert S. Spear: And also pauper's petition about whether those--
Speaker: --Whether the financial requirements.
Robert S. Spear: --Yes, sir. Yes, sir.
Speaker: And that no service is made on the defendant while this is being done?
Robert S. Spear: That's correct, Your Honor.
Speaker: And what is... is there a rule that prescribes how promptly he must do this?
Robert S. Spear: No, Your Honor, although it is my understanding that it is done very promptly because from the time of tendering by, by a prisoner case, for instance--
Speaker: Is it stamped--
Robert S. Spear: --'til it's filed is within days.
Speaker: --Is it stamped when it's delivered to the clerk's office and then... is there a docket entry made and a case file opened on the case?
Robert S. Spear: Your Honor, it is not... it is not filed at that time and I--
Speaker: It's not filed. So I take it there's no time stamp on when it comes in or--
Robert S. Spear: --No, Your Honor, there's not.
Speaker: --And then if the... then when the... when the magistrate gets through with it and he says, "I don't think this is worth filing. " what do they do? Mail it back to him or do they keep a copy in the file?
Robert S. Spear: Your Honor, he... he lacks the authority to be able to make that decision himself. He--
Speaker: But he sends it to the judge.
Robert S. Spear: --Sends it to the judge.
Speaker: The judge says, "I agree with you". And I imagine routinely the judge would probably agree with the magistrate because there's no point in saying the magistrate... if the judge is going to do all the same work all over again.
Robert S. Spear: Yes, sir.
Speaker: I mean, just knowing how judges work. So, the judge gets with the magistrate's recommendation. And what does the judge do?
Robert S. Spear: The judge looks... looks at it, and assuming the judge agrees with the magistrate--
Speaker: Right.
Robert S. Spear: --issues effectively legal findings... not factual findings, but legal findings... with effect of a two or three page written opinion if it is not going to be filed, and sends... that is filed with cause number with the complaint. And--
Speaker: It's then given a cause number? It's given a number after the judge says it should not be filed?
Robert S. Spear: --Yes, Your Honor.
Speaker: And then--
Robert S. Spear: It's given a number and sent back to the pro se petitioner, a copy of the judge's opinion.
Speaker: --And when does... when does the time for the pro se petitioner to appeal from that action start to run out?
Robert S. Spear: Thirty days, as it would be in any other appeal.
Speaker: From the time it's mailed back to him or... 'cause I gather there's no... is there an order entered by the district judge then?
Robert S. Spear: Yes, Your Honor. There is an order entered showing that it is dismissed under 1915(d).
Speaker: I see.
Robert S. Spear: So that at that point the case is actually docketed. From there it goes to the Seventh Circuit. Courtesy copies in the case of state defendants in 1983 actions are ordinarily sent to the Indiana Attorney General's Office, and the Seventh Circuit routinely in such a case, when it is docketed there, sends us notice... or, actually, the Attorney General's Office, notice that such a case is now pending on appeal. So, strangely enough, it is briefed on appeal as if the parties had already filed the complaint; 1915(d) allows the dismissal of the complaint either before or after filing. But if--
Speaker: But if it automatically goes to the state. Attorney General's Office, what is saved by not sending it to your office in the first instance?
Robert S. Spear: --Your Honor, the... that is a courtesy copy. Only about two-thirds of these cases deal with, with the State of Indiana. A 1983 action may very well deal with a small county official--
Speaker: Oh, I see.
Robert S. Spear: --and it also may deal with a state employee who does not wish to be represented by the Attorney General. That's totally optional. Now, they normally do because it's free, frankly, Your Honor. But they can have their own counsel. And they are unaware... they are unaware that the complaint has ever been tendered. The rule in this case that we are contending for is simply a de minimus rule, not a rule that would change what we believe the standard to be before the Seventh Circuit entered the, the instant opinion. And we are again arguing that Spears v. McCotter, Harris v. Menendez, and Martin-Trigona v. Stewart rules of the circuits should be adopted by this Court. And, again, we've listed many other cases in our brief, as the standard beneath which a pro se tendered complaint cannot proceed under Section 1915. That's the only issue in front of the Court. It's the issue that we believe the Seventh Circuit has violated. In conclusion, Your Honors, it is the position of the Petitioners in this case to established a familiar and identifiable standard under Section 1915(d) to determine when a pauper's petition should be dismissed as frivolous, and we would submit that that standard should be equivalent to the 12(b)(6) standard.
Speaker: May I just ask one other question. It's kind of a... maybe it's kind of a silly in a way. But the procedure that you follow deprives the defendant of knowledge that he or she has been sued.
Robert S. Spear: Yes, Your Honor.
Speaker: Or has been attempted to be sued.
Robert S. Spear: Yes, Your Honor.
Speaker: Maybe that's good and maybe it's bad.
Robert S. Spear: Yes, it does, Your Honor. But it also gives them the advantage of Section 1915(d), that they are not... they're not harassed or, or subject to the--
Speaker: They don't have to hire a lawyer or come into court or anything.
Robert S. Spear: --Yes, Your Honor. That's exactly right. And for most defendants it's probably a privilege to be deprived of the right to be sued.
Speaker: Yeah.
Robert S. Spear: They probably don't want to have that right.
Speaker: Yeah.
Robert S. Spear: Thank you, Your Honor.
Speaker: Thank you, Mr. Spear. Mr. Rutherglen.
George A. Rutherglen: Mr. Chief Justice, and may it please the Court: This case concerns the question of whether the standard for dismissal of frivolous actions under Section 1915(d) is the same as the standard for dismissal for failure to state a claim under Rule 12(b)(6). Respondent submits that it is not, for two reasons. First, Federal Rules of Civil Procedure, and other principles of our adversary system, sharply distinguish between frivolous actions to warrant the imposition of sanctions in a complaint that simply fails to state a claim. In particular, a motion to dismiss for a failure to state a claim raises a pure question of law. This question of law may not be frivolous. Petitioners propose that the district courts should always routinely resolve these questions of law, even when they present major questions of constitutional law, without the benefit of an adversary presentation by either party. Second, the literal terms of Section 1915(d), its legislative history, and the prior decisions of this Court, require the same standards of frivolousness to apply in actions by litigants as... in actions by indigents as in actions by ordinary litigants. When Congress used the phrase 1915(d), it did not mean failure to state a claim.
Speaker: Mr.... Mr. Rutherglen, when was... 1915 was... it's a pretty old statute. It's older than the Civil Rules by a good deal, isn't it?
George A. Rutherglen: Yes, Your Honor. It was enacted in 19... in 1892.
Speaker: So, you know, what... what Congress had in mind concerning frivolousness for purposes of dealing with the federal rules doesn't really... there's no reason to think it had anything to do with what Congress had in mind in the 19th century when it decided who would have the privilege of proceeding in litigation without paying ordinary court costs.
George A. Rutherglen: Yes, Justice Scalia. The legislative history does not speak to the content of the phrase frivolous. The single most common use of the word frivolous in the opinions of this Court before 1892 concerns the procedure for dismissing an appeal for failure to present a substantial federal question. And, indeed, the rules of this Court in their 1878 version, Supreme Court Rule 6, specifically allowed a motion to affirm on the ground that the question on which jurisdiction depends is so frivolous as not to need further argument. If Congress was aware of any standard usage of the word frivolous, it was aware of its equivalence with failure to state a substantial federal question. Moreover, that's exactly what this Court held much later in Coppedge against United States. This Court held that a pauper's appeal could be dismissed only when a paying litigant's appeal could be dismissed, only when it failed to state a substantial federal question. Respondent submits that failure to state a substantial federal question is virtually identical to the standard adopted by the court of appeals in this case. Is there a rational basis in fact and in law for the complaint that the plaintiff has submitted?
Speaker: Just as a matter of English usage, Mr. Rutherglen, failure to state a substantial federal question does not sound a great different to me than failure to state a claim on which relief can be granted.
George A. Rutherglen: Your Honor, there are numerous decisions of this Court, for instance, the famous decision in Bell against Hood which established precisely this distinction. This Court held in Bell against Hood that the question whether there was a claim directly under Fourth Amendment presented a substantial federal question, even though the district court might on an adversary presentation dismiss because the complaint failed to state a claim after the district court held that there was no such cause of action.
Speaker: Do you think that kind of hair-splitting that we have in Bell against Hood is a good model to pattern a system that's going to process an awful lot of indigent complaints?
George A. Rutherglen: I do, Your Honor, so long as the procedures and the burdens that are put upon the federal district courts and that are put upon the defendants in these cases are clearly set forth. All we are seeking today is the basic minimal procedures which any paying litigant gets in federal court. Just notice of the supposed defects in the complaint and an opportunity to respond to those defects before the complaint is dismissed. Moreover, Your Honor, we only defend the judgment of the court of appeals in this case. The court of appeals said that it was perfectly appropriate for a dismissal under Section 1915(d) to be done sua sponte if there was no rational basis in law or fact for the plaintiffs' claims. And, indeed, in this very case the court of appeals affirmed the dismissal of almost all of the plaintiffs' claims. Only two claims were sent back down to the district court.
Speaker: Do you think courts can sua sponte dismiss under Rule 12(b)(6)?
George A. Rutherglen: Your Honor, courts can sua sponte dismiss under Rule 121(b)(6). My understanding of standard federal practice, as reflected in the federal rules, is that ordinarily they don't.
Speaker: But some circuits do, do they not?
George A. Rutherglen: Courts in some circuits do? I believe it is the exceptional practice, Your Honor. Bear in mind that Petitioners' claim is not to do this in exceptional cases. Petitioners' claim is that as an ordinary practice in indigent litigation a complaint will be dismissed without giving any notice to anybody. Now, of course, Respondent in this case cannot complain about the absence of notice to the Defendants. But Respondent himself got no notice until judgment was entered against him. We submit that this practice is both contrary to the ordinary procedures under the Federal Rules, deprives the plaintiff of notice and opportunity to be heard on the sufficiency of his complaint and works to the detriment of the efficient administration of justice in the federal system. We believe that the federal courts will do a better job in handling these cases, and we admit they pose problems for the federal districts courts if it asks the defendants simply to submit a motion to dismiss for failure to state a claim under the Federal Rules.
Speaker: Well, then you have to grant the motion to proceed in favor of paupers, the case has to be docketed, and you go through that whole procedure.
George A. Rutherglen: Yes, Your Honor. Those are fairly minor administrative expenses. But, bear in mind, under the court of appeals' decision, it is only when there is a close case, only when there is some rational basis in law and fact, that we even go through that minimal procedure?
Speaker: Well, I... yeah, but your submission is that any time that it isn't frivolous you go through that procedure.
George A. Rutherglen: Well, Your Honor, I think that the statute virtually requires--
Speaker: No.
George A. Rutherglen: --that conclusion.
Speaker: That's... your position is that unless it's frivolous you go through that procedure.
George A. Rutherglen: Yes. I think the statute requires the federal district courts to--
Speaker: Well, Mr.... Mr.... the statute says, "may authorize the filing". It doesn't say "shall".
George A. Rutherglen: --That's right, Your Honor. The--
Speaker: That would appear to give discretion to the district court.
George A. Rutherglen: --Yes, Your Honor. It would appear to give discretion to the district courts. However, I know of no decision in the lower federal courts that leaves this issue entirely to the unfettered discretion of the district judges.
Speaker: Well, you answered... you agreed with Justice O'Connor. I thought that that some districts do. Some... in some circuits they do have sua sponte dismissals for a failure to state a cause of action.
George A. Rutherglen: In cases involving paying litigants. I thought that was the gist of her question. But if I misinterpreted it, I apologize.
Speaker: Well, what's the difference? A paying litigant, he's in court and the judge just says, "I don't think you stated a cause of action. " and he dismisses it sua sponte.
George A. Rutherglen: Yes. Our position on those circuits, Your Honor, is that their standard is the incorrect standard and should not be adopted by this Court. Instead, we advocate that the... our courts of appeals--
Speaker: The paying client ought to have notice that he's about to be dismissed.
George A. Rutherglen: --Except in clear cases. Except in clear cases, we think that--
Speaker: What are those?
George A. Rutherglen: --Well, Your Honor--
Speaker: Frivolous ones?
George A. Rutherglen: --Yes, those are frivolous ones. We submit that the definition of a frivolous case, both for indigent litigants and for paying litigants, is that the complaint is clearly insufficient.
Speaker: What's the difference between a complaint that is clearly insufficient and one that fails to state a claim? Why set up a brand new standard?
George A. Rutherglen: Well, Your Honor, the standard under Rule 12(b)(6) serves a quite different purpose than the standard that is appropriate under Section 1915(d) or under the standards for imposing sanctions against paying litigants. The purpose of a motion to dismiss for a failure to state a claim under Rule 12(b)(6) is to isolate a dispositive issue of law at the beginning of the lawsuit before there has been factual investigation and factual findings by the district court and terminate the proceedings if those factual investigations are no longer necessary. If... even though all the allegations that the plaintiff puts in his complaint are true, the law denies the plaintiff relief. Now, that's one purpose served by Rule 12(b)(6).
Speaker: And that applies even if the law is pretty hard to figure out?
George A. Rutherglen: That's right, Your Honor.
Speaker: You can still figure it out without getting into any further factual inquiry?
George A. Rutherglen: That's right, Your Honor. And there are any number of cases... we cite them in our brief... in which this Court has decided major questions of federal law in cases that came up on a motion to dismiss for a failure to state a claim. We believe that that standard, which perfectly well suits that purpose, cannot be transplanted to do double duty under Section 1915(d). In particular, if there is some doubt, and only when there is some doubt about the sufficiency of the complaint, we believe that the minimal procedures required by the court of appeals, service of process upon the defendants and an adversary presentation on the sufficiency of the complaint, will, first, protect the rights of indigent litigants, and, secondly, lead to the efficient administration of justice. This case, we believe, illustrates exactly how these hasty procedures in the district court translate into wasteful procedures overall in the federal judicial system. There were no adversary procedures whatsoever in this case in the district court. We believe that it is better to have the adversary procedures in the district court before the case gets to the court of appeals. In this case, because the district court did not serve process upon the Defendant, there was no adversary presentation on the sufficiency of the complaint. It was only in court of appeals that three federal judges had to take the time to figure out whether this complaint stated a claim.
Speaker: Mr. Rutherglen, do you have any guess as to what percentage... I'm trying to think of, of how many cases in the circuits that adopt the, the rule you're arguing against would be affected by the, by the rule that you would have us adopt. How many of these pro se complaints that are dismissed without further proceedings would have to go through further proceedings.
George A. Rutherglen: Your Honor, I don't have those statistics at my--
Speaker: Well, I understand.
George A. Rutherglen: --my fingertips. But my--
Speaker: Are you--
George A. Rutherglen: --I suspect--
Speaker: --How many would be clear in, in your estimation? Eighty percent or closer to 20 percent?
George A. Rutherglen: --My experience with prison litigation leads me to believe that this case is typical. Most or all of the claims are clearly insufficient in most complaints drafted by prisoners by themselves. But I cannot give you any numerical indication. I think the best evidence of the burden that the procedure in the court of appeals... the procedure adopted by the court of appeals would put on the district court is revealed in this case, a simple need to serve process upon the defendant and then a filing of a motion to dismiss for failure to state a claim.
Speaker: Well, then, there's an argument on the motion to dismiss?
George A. Rutherglen: There would be no need for argument. The rules, Federal Rule 12(d), provides that a hearing must be held on any motion filed under Rule 12. But my understanding is that hearings are rarely held in the district courts and that these motions are often decided on the paper record.
Speaker: So then what you want is the, the... in addition to the plaintiff's complaint, the defendant would presumably file a motion to dismiss, and the district court, which apparently would have felt beforehand that the complaint failed to state a claim for relief, is now given additional ammunition to reach that conclusion, and really nothing from the plaintiff.
George A. Rutherglen: Well, the plaintiff is then given an opportunity to file a brief in support of the sufficiency of the complaint.
Speaker: But the plaintiff is pro se, presumably. I gather that brief may not be a whole lot of help to the court.
George A. Rutherglen: It is true, Your Honor, that the brief may not be a whole lot of help to the court, but with pro se litigants the courts, the federal courts, just must take them as they find them. There is no question in this case about appointing counsel to represent these indigent litigants. Our position is that given the disabilities, the practical disabilities that pro se litigants typically labor under, the procedures should be enforced against them so that they at least have an opportunity to respond to the alleged defects in the complaint before the judge has already made up his or her mind and entered judgment against the plaintiff. That's what happened in--
Speaker: Well, why isn't--
George A. Rutherglen: --this case.
Speaker: --Haines against Kerner enough for you?
George A. Rutherglen: Haines against Kerner is not enough, Your Honor, because it is a standard that is designed to implement motions to dismiss for failure to state a claim. Haines against Turner asks the court in very traditional fashion simply to assume that all the allegations stated in the complaint are true.
Speaker: Well, also to liberally construe the complaint, doesn't it?
George A. Rutherglen: But it's... Your Honor, it nevertheless just says... I believe the exact words are that a court can grant a motion to dismiss for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts at trial that would entitle him to relief. Haines against Kerner, like any standard for dismissal for failure to state a claim, doesn't give the plaintiff the benefit of the doubt on the law. That is precisely what the court of appeals said was appropriate in these cases in which there was some question about the sufficiency of the complaint. Moreover, I believe that as a matter of judicial administration it would only confuse the lower federal courts if the standard, which is perfectly suitable for one purpose under 12(b)(6), is suddenly transplanted to be used to determine what constitutes frivolous actions under Section 1915(d). This Court would never take that step with a paying litigant, risking the confusion that might arise from confusing Rule 12 with Rule 11. Nor would this Court take this step with respect to assessing attorney's fees against civil rights plaintiffs. This Court has clearly said in Christianburg Garment, case decided under Title 7 but now applied under the Civil Rights Attorney's Fees Statute, generally, that attorney's fees can be assessed against a civil rights plaintiff only if the plaintiff's action was frivolous, unreasonable, or without foundation. Moreover, in a prior decision, this Court has squarely held in Hughes against Rowe that a prisoner's complaint could fail to state a claim, yet would not justify the imposition of sanctions under Section 1988. Your Honor, the Petitioners rely quite heavily upon the statement in the court of appeals opinion that the complaint failed to demonstrate the level of deliberate indifference necessary to survive a motion to dismiss under Rule 12(b)(6). We contend that this statement is simply a dictum, that what the court meant was that there was some doubt about the sufficiency of the complaint, as it went on to state explicitly in the very next sentence in its opinion. Moreover, the overall order of the court of appeals is consistent with this interpretation of its statement. The court of appeals sent the case back down to the district court for further adversary proceedings on this issue. To the extent that Petitioners rely upon this statement, we contend, for reasons elaborated in Part IV in our brief, that the complaint specifically alleges, often with supporting evidence in exhibits attached to the complaint, that Respondent suffered a deliberate indifference to serious medical needs. In any event, this dictum is just another example of the procedural complications that ensue from sua sponte dismissal of a complaint for failure to state a claim. In its opinion, the court of appeals plainly meant to establish an orderly procedure for disposition of actions brought by indigent litigants, to have the district court first consider sua sponte whether a complaint has any rational basis in law or fact. If it does, then to have process served upon the defendant and entertain a motion to dismiss. If the court then granted the motion to dismiss, the case would come to the court of appeals, as it does in ordinary appellant practice, with the benefit of the district court's considered judgment after a presentation of the issues on the sufficiency of the complaint by both sides. It is that procedure, not the effect of an unconsidered dictum of the court of appeals, that constitutes the only question of general significance before this Court today. We believe that the court of appeals decided it correctly. If the Court has no further questions, Respondent respectfully requests that the judgment of the court of appeals be affirmed.
Speaker: Thank you, Mr. Rutherglen. Mr. Spear, do you have anything more?
Robert S. Spear: Yes, Your Honor. Very briefly. The Petitioners in this case still contend that the pro se 12(b)(6) rules set out in Estelle v. Gamble and in Haines v. Kerner is in fact the appropriate standard and is a low enough standard to protect the rights of--
Speaker: Mr. Spear, can I ask you this question on the... referring especial... specifically to Estelle against Gamble and the complaint against the medical people in that case--
Robert S. Spear: --Yes, Your Honor.
Speaker: --which the district court had dismissed the complaint and under your view it should have found it frivolous because ultimately the dismissal was upheld, even though the court of appeals thought there was merit to the, to the claim. So that, in your view, the standard of being frivolous means that no matter serious and close the argument may be, if the ultimate determination is that it doesn't state a claim, it's still frivolous?
Robert S. Spear: Yes, Your Honor, although I would submit that in close cases, as we learned from Conley, Haines and Estelle, in pro se litigation in close cases they are decided in favor of the plaintiffs. So, realistically that issue simply was--
Speaker: Well, it wasn't in Estelle. It wasn't in the district court or in this Court.
Robert S. Spear: --Your Honor, I would--
Speaker: And that was a close case. I think everyone would agree to that.
Robert S. Spear: --I think it was, Your Honor, but I would submit that that is an unusual situation.
Speaker: Well, if you think that's the case, then what... what harm is there to adopt... t adopt the rule that Mr. Rutherforn... Rutherglen suggests?
Robert S. Spear: Because, Your Honor--
Speaker: If you think it's only in a rare case anyway that anything other than a clear complaint is going to be dismissed this way, you're really not losing anything.
Robert S. Spear: --Your Honor, we would submit that there the Seventh Circuit has adopted a much lower standard and an unenforceable standard when it differed from the other circuits. You had earlier asked the question about when the statute was originally adopted. It was, in fact, originally adopted in 1892 and recodified in 1948 after the rules, of course, had been adopted. But in 1892 Congress was locking at a system where the courts refused to cemure a system, and even learned lawyers had difficulty stating a cause of action. Cases would go back, would be repled two or three times. The different situation we have today with the modern rules and with the standard established under Haines and under Conley, that, that we would submit that in fact the current standard of 12(b)(6) is in fact, as interpreted by this Court for pro se plaintiffs, the equivalent of a frivolous standard as it would have existed in 1892. There is a practical aspect to this case. As the record shows, the court had already gone through this procedure, and had to go through this procedure under the Seventh Circuit no matter what the outcome was below. That is to say, the district court had already examined the complaint and weeded out three of the defendants and half the claims against the remaining two defendants. And it would have to do that under 1915(d) even if it had filed the complaint as the Seventh Circuit ordered it to do. It's still going to go through the same test. The magistrate is going to examine it. The district court is going to examine it at that level. What the test that's argued for by the respondent in this case, however, would do was cause the same process to happen twice because, assuming the complaint is then filed, the defendants are brought into court and they are penalized in effect... they are sued... they must defend themselves. At that point, the pro se petitioner files his response and the district court goes through the same analysis to determine whether or not the case states a claim. The identical analysis that it underwent before it allowed the case to be filed. We would submit that that does not cause a judicial economy and it makes no rational sense to have that kind of a test when you have to do exactly the... the courts do exactly the same thing twice. Plus, it burdens the defendants, plus it burdens the other potential plaintiffs in the whole system, which is now clogged, to say the least. That kind of a standard does not assist the district court in following what Congress has told it it must do, and that is winnow out these cases, and, in fact, the Seventh Circuit has said they must do. We would continue to submit, Your Honors, that a system that causes the same complaint to be examined for the same standard twice by the district court is not the system that should be adopted by this Court. Rather, this Court should adopt the familiar and identifiable standard of 12(b)(6) as instructions for the district courts and the circuit courts, to allow them to implement the congressional policy of Section 1915(d) in a way that they can define and get a handle on. The questions of this Court to learned counsel here show that in a specific case it was very difficult for him to define a rule that shows well, yes, it's below 12(b)(6), but how far below is it before it still must be dismissed because there's no... any question of any of the parties in this case or the courts that at some point 1915(d) does kick in and there is a dismissal. The question is not whether there is any standard prior to filing. The question is what is that standard. And we would submit that the way to handle that in a method that's enforceable by the courts is to use 12(b)(6) because it is a standard that the lawyers, the courts, the judges are familiar with. Thank you, Your Honors.
William H. Rehnquist: Thank you, Mr. Spear. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.


Warren E. Burger: We will hear arguments next in Havens Realty Corporation against Coleman. Mr. Allen, I think you may proceed whenever you are ready.
Everette G. Allen, Jr.: Mr. Chief Justice, and may it please the Court, this action arose pursuant to a complaint filed in the Eastern District of Virginia alleging that Petitioners, Havens Realty and its employee, Rose Jones, violated the Fair Housing Act and Section 1982. As to these Respondents, the complaint was dismissed on grounds of lack of standing and the statute of limitations. The Fourth Circuit reversed, and this Court granted certiorari. The complaint here provided the sole facts before the Fourth Circuit and provide the sole facts before this Court. Havens Realty operates two adjacent apartment complexes in Henrico County, Virginia, and is alleged to have engaged in racial steering at just these two apartment complexes. Respondent HOME is a Richmond-based fair housing organization with the avowed purpose of making fair housing in Richmond a reality. Its activities include counseling, investigating complaints, and testing to ensure compliance with the fair housing laws. Its only contact with Petitioner Havens was through its employee testers to determine if Havens was complying with the fair housing laws. Its injury is alleged as a frustration to its counseling.
Speaker: Before you get too far along, counsel, I hope at some point that you will discuss the amicus representation to the Court that there were certain developments after the granting of cert in this case.
Everette G. Allen, Jr.: Yes, Your Honor. I will speak to that.
Speaker: Because that might have something to do with the ultimate disposition.
Everette G. Allen, Jr.: Yes, sir. Let me speak to that. One of the plaintiffs in this case, Paul Allen Coles, was a bona fide renter. He was a party to this complaint. His complaint withstood the motion to dismiss. He went to trial, and a consent order was entered in his favor, in which Havens was found to have been engaged in racial steering. That consent order, Your Honor, was addressed to Coles and his class, which was a class consisting of all black persons deemed to have been monetarily injured by those practices. It can in no way, shape, or form affect the relief being requested by these Respondents, which is damages, other injunctive relief in the form of affirmative action, attorneys' fees, which will be substantial. We submit that under this Court's stringent test of mootness, this case can't be moot. As to the contention that the writ was improperly granted, Your Honor, we submit that for the same reasons evidenced in the cert petition, which are things not dealt with by this Court before, the tester qua tester issue, the dispute... the conflict between the Fourth Circuit and the Seventh Circuit as to organizational standing, that those are questions of important federal and constitutional law that are still in this case and are in no manner affected by the relief granted below. HOME's membership... as to HOME's membership, we are told only that it is multi racial and numbers 600. We are told nothing else about them, or where they live, only that Havens' conduct denied them the benefit of interracial associations. The two individual Respondents, Sylvia Coleman, a black woman, and Kent Willis, a white man, are HOME employees. They were not in any way bona fide apartment seekers, and their sole reason for contacting Havens was testing. While we are not told precisely where they live, the complaint says that they lived somewhere in the city of Richmond or Henrico County, and that Havens's steering of these two apartment complexes deprives them of the benefit of interracial associations. All acts as between Havens and these testers took place more than 180 days before the complaint was filed. Respondents complain that the district court's dismissal was precipitous, and that they should have been allowed to go forward and demonstrate their standing. We submit that this is without merit. They knew the facts before they filed the complaint, and if those facts aren't in that complaint, that is no one's fault but theirs. Further, in--
Speaker: But, Mr. Allen, they did allege that... you say we don't know where in Richmond they live, but they did allege that wherever they lived, they were denied the benefit of interracial community live because of your client's practices.
Everette G. Allen, Jr.: --Yes, Your Honor.
Speaker: Don't we have to assume that was true?
Everette G. Allen, Jr.: Yes, Your Honor. They... Well, Your Honor, we can assume... we can assume that Havens steers, and we can assume that they have properly alleged the injury, but let me speak to that particular aspect of the standing, and why we think their standing fails on that count. All that these Respondents allege is, Havens steers at two apartment complexes in Henrico County. We live in either Richmond or in Henrico County. Consequently, we have been denied the benefit of interracial association. Your Honor, we--
Speaker: And don't we have to assume that is true, because we take the allegations of the complaint as true?
Everette G. Allen, Jr.: --Your Honor, we would disagree that you have to assume any essential element of standing. We submit that there has to be, as required by Article 3, a plausible connection between the defendant's acts, between the defendant's acts and the plaintiff's harm. It is implausible to assume that racial steering directed to two apartment complexes can affect two individuals that live somewhere in a metropolitan area of 400,000 people or in fact that they can affect the entire metropolitan area.
Speaker: Maybe it is, but why don't we have to assume it is true when they allege it, and then you prove it isn't true?
Everette G. Allen, Jr.: Your Honor, in Bellwood, essentially the same allegations that these Respondents made were in the complaint, as noted in the footnotes in Bellwood, the city of Bellwood, in pleading the harm, had said that the actions of the defendants affect all the citizens of this community. This Court looked at that complaint and said, well, you have alleged a harm to one society, and that is really not right, that is a generalized grievance, and it can't possibly be the defendant's fault. The way we are going to interpret that is, you have alleged harm to the residents of a very carefully described 12 by 13 block target area, and for those... for those plaintiffs that live in that target area, we are going to assume that you have pled a proper cause--
Speaker: You assume they can prove what they have pleaded.
Everette G. Allen, Jr.: --That's right.
Speaker: Well, why don't we do that here?
Everette G. Allen, Jr.: Well, Your Honor, but in Bellwood, for those--
Speaker: You think it is much more unlikely here?
Everette G. Allen, Jr.: --It is implausible. It is implausible--
Speaker: Well, is there a rule of pleading that we do not take as true implausible allegations?
Everette G. Allen, Jr.: --Your Honor, I believe that the language of this Court in Warth and in Bellwood, that the standard to apply to a complaint is that the plaintiff is to be given the benefit of all material allegations, and the complaint is to be construed in his favor. We think the Connelly v. Gibson standard is wrong, and that to allow that standard is for a federal judge to assume that he has got the power to act, and it is not unreasonable, not only not unreasonable, it just makes sense to say, if you have got standing and you are going to invoke the power of the federal fiduciary, plead it. Plead the causal connection. And it is for that reason that we don't think that this Court has to accept the conclusory allegation of pleading that two apartment complexes... we live in a big metropolitan area. We have been denied the benefit of interracial association.
Speaker: Mr. Allen, the complaint in this case was filed before the Bellwood case.
Everette G. Allen, Jr.: Yes, it was, Your Honor.
Speaker: So possibly the Respondents in this case should have an opportunity to conform their complaint to Bellwood, would you not think?
Everette G. Allen, Jr.: I would agree with that. I think the standard--
Speaker: I mean, what you are saying makes some sense, but under the circumstances here, maybe they are entitled to conform to Bellwood.
Everette G. Allen, Jr.: --Your Honor, I think it is very clear that the district judge employed the reasoning of TOPIC, which is wrong, and that under what the Court did in Bellwood, with the district court, had employed an erroneous standard... standing, that I can't stand here and say in a final judgment for the Petitioner so they could--
Speaker: What about the United States' position that the statute really is aimed at protecting anybody who is given misinformation?
Everette G. Allen, Jr.: --Your Honor, let me comment on the--
Speaker: And that you could be from Chicago, and make these same inquiries in this county, and you would be a person aggrieved, entitled to an adjudication.
Everette G. Allen, Jr.: --Let me respond to the latter part of the question first. I don't think a person from Chicago can get on the phone just for the heck of it and decide that he is going to call and some apartment complex--
Speaker: Well, he can do it. He can call them, and he can be given--
Everette G. Allen, Jr.: --Let's say he does it.
Speaker: --and he can be given misinformation.
Everette G. Allen, Jr.: Yes, and it is because of race. Let's assume because of race.
Speaker: Yes.
Everette G. Allen, Jr.: Your Honor, I believe that the government is correct that one has the right not to be given false information because of his race pursuant to 804(d). But for--
Speaker: Wherever he lives.
Everette G. Allen, Jr.: --Wherever he lives. Yes, Your Honor. But for him to have standing, he has got to satisfy Article 3, and addressing that particular point within the framework--
Speaker: I know, but if the statute is aimed at saying, look, it is illegal to give people false information--
Everette G. Allen, Jr.: --Yes, Your Honor.
Speaker: --now, if somebody is giving false information, then the only question is, is the statute constitutional.
Everette G. Allen, Jr.: Well, Your Honor, it is not criminal. It is not a criminal statute. It makes it unlawful to give false information. One can have the right to receive--
Speaker: Well, is it true that these people were given false information?
Everette G. Allen, Jr.: --I think that is a fair assumption.
Speaker: And does the statute forbid that?
Everette G. Allen, Jr.: It does.
Speaker: Is the statute constitutional?
Everette G. Allen, Jr.: Your Honor, I think the statute is constitutional. Notwithstanding that, I don't believe that a tester qua tester can demonstrate any injury under Article 4.
Speaker: Well, he suffered the very injury the statute forbids.
Everette G. Allen, Jr.: Your Honor, the statute--
Speaker: He got false information.
Everette G. Allen, Jr.: --Your Honor, he wasn't looking for accurate information. The only thing he was looking--
Speaker: He was given false information. The statute forbids it.
Everette G. Allen, Jr.: --Well, he was. I can't deny that. Let me speak to another aspect of the 804(d) claim, Your Honor. This right under Section 804(d) was not plead, and in fact, in the brief that Respondent submitted before the district court at Page 43 of the appendix, they said, we are not suing as testers. We are only suing as persons denied the benefit of interracial associations. That is a disavowal of a right under Section 804(d).
Speaker: Well, you are really making a jurisdictional argument, an Article 3 argument.
Everette G. Allen, Jr.: Yes, Your Honor, we are.
Speaker: And if despite what... if that is the issue here, are we really bound by the jurisdictional claims that your opponents made below?
Everette G. Allen, Jr.: Your Honor, I don't think that there is anything that you can plead to satisfy Article 3 except facts.
Speaker: Well, they plead a fact. We asked and we were given false information. That is apparently admitted.
Everette G. Allen, Jr.: That wasn't raised in the pleadings. It was disclaimed before the district court. Before the Fourth Circuit it was never argued, and Your Honor, what will confirm that the Fourth Circuit never relied on Section 804(d) is, they found standing in Kent Willis, the white man, as a tester qua tester, notwithstanding the fact that he hadn't received any false information.
Speaker: You think the Respondent here is entitled to support the judgment on that ground, on an accurate ground, or--
Everette G. Allen, Jr.: I do not think he is entitled to enlarge upon his rights from the Fourth Circuit. I do not think he is entitled to not plead a Section 804(d) violation--
Speaker: --That is not going to enlarge his rights. He is just going to say, there is jurisdiction.
Everette G. Allen, Jr.: --Well, Your Honor, let me tell you what it would have been like. In the Perry... in Bellwood, two of the individuals, Perry and Sharp, lived outside of the target area. They were black testers. They had been given false information, and they... and they claimed denial of the benefits of interracial association. I don't think they should have been allowed to come into this Court for the first time and say, we want to claim a Section 804(d) violation, because that is essentially what the testers here did. I would like to comment on the issue of HOME's representational standing. In order for HOME to sustain representational standing, it must plead specific facts to enable a determination to be made that the three part test specified in Warth and Hunt v. Washington Apple Advertising Commission has been satisfied. This complaint is completely devoid of any fact necessary to even try to make that determination, much less to make it. Consider only the first part of the test, which is that at least one HOME member must have standing in his own right to maintain this cause of action, whereas the injuries plead, they... that, that is, denial of the benefit of interracial associations. How can you determine that that one HOME member has standing to sue when we don't know where he lives, we don't know how Havens' acts affect him, and we don't know whether the... individual was... will assist? We submit that the district court's... that the Fourth Circuit's finding in this regard is plainly wrong and must be reversed.
Speaker: Mr. Allen, was there discovery in this case at all?
Everette G. Allen, Jr.: No, Your Honor, there was not. Insofar as HOME's standing to sue in its own right, it alleges, as Mr. Justice White has been discussing, a Section 804(d) claim also. Again, not plead, not briefed, not argued in the Fourth Circuit, up before this Court for the first time. HOME actually... now its primary standing argument has become Section 804(d). 804(d) is the right to receive accurate information, and if you receive false information, your rights have been violated. It ought to be very clear that Havens has not violated HOME's Section 804(d) rights. He didn't even know HOME was involved. And he cannot be held to have violated those rights because he didn't give HOME any false information based on rights. This point is noted in the government's brief, where it says if HOME had contacted Havens and said, I am HOME, or a HOME employee had contacted Havens and said, I am a HOME employee, and it got false information, it would have been a different--
Speaker: Mr. Allen, was Coleman an employee of HOME?
Everette G. Allen, Jr.: --Absolutely, Your Honor.
Speaker: You said yes?
Everette G. Allen, Jr.: Absolutely, yes.
Speaker: Does that affect the interest of HOME in this case, an employee was given false information?
Everette G. Allen, Jr.: Your Honor, if that false... if the information had been sought--
Speaker: Had been what?
Everette G. Allen, Jr.: --Sought for a bona fide purpose, in other words, if Sylvia Coleman and Kent Willis, who were HOME's... I didn't get a chance to introduce them. Coleman and Willis were HOME employees. They were not bona fide apartment seekers. They were just testing agents. That was their sole--
Speaker: Both of them were HOME employees?
Everette G. Allen, Jr.: --Yes, sir. That was their sole involvement.
Speaker: And HOME had a contract with the city of Richmond?
Everette G. Allen, Jr.: Yes, Your Honor, it did.
Speaker: And what were the terms of that contract?
Everette G. Allen, Jr.: Well, Your Honor, the terms of that contract was that HOME was to counsel so many people with respect to the city, provide services to the city--
Speaker: As to where housing could be obtained?
Everette G. Allen, Jr.: --Generally, Your Honor, that is correct.
Speaker: And wouldn't that give HOME an interest in the question that was put by Coleman, its employees?
Everette G. Allen, Jr.: Your Honor, it could have if it had been plead.
Speaker: If it had been plead?
Everette G. Allen, Jr.: If it had been plead. The facts that are plead are that Coleman and Willis never sought, nor did HOME, to obtain any bona fide information from Havens. They never at any time called Havens--
Speaker: Mr. Allen--
Everette G. Allen, Jr.: --and said, tell me what you have got available. All they did was test.
Speaker: --Mr. Allen, Paragraph 16 of the complaint alleges plaintiff HOME had been frustrated by defendant's racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Isn't that pleading exactly what Justice Powell asked you about?
Everette G. Allen, Jr.: Your Honor, yes. Let me comment upon that. Here is what HOME pleads. HOME says, we thought Havens was... this is the complaint. This is no extrapolation. We tested Havens. We found he was steering therefore, we are damaged. Now, what is the causal connection? Because again it is a conclusory pleading. Does it follow that just because Havens is steering, there is damage to HOME's counseling service? And the answer is, of course not. Consider that you have a--
Speaker: I would have thought the answer was, of course. 0 [Generallaughter.]
Everette G. Allen, Jr.: --Let me explain, and maybe I can change your mind. Consider a bona fide black apartment seeker, never heard of HOME, and he goes to Havens, and he is steered. Has HOME been damaged? Of course not. What has happened? What has happened is that its abstract concern with fair housing has been thwarted. No question about that. Is that the type of damage that will sustain an Article 3 standing? The answer is, of course not. Suppose that black bona fide apartment seeker is referred to Havens--
Speaker: No, but Mr. Allen, I think the point is that if there is a practice of steering, no matter who comes to the real estate agent, that practice would impair HOME's ability... they say to someone who comes into the office, well, there is a vacancy over at the Havens Realty office, go over there and apply for it. If the person will not get the apartment by doing so, doesn't that impair HOME's ability to refer people to vacant apartments?
Everette G. Allen, Jr.: --Your Honor, if that were so, that would give every apartment locator service in Richmond a cause of action in every case where racial steering or violation ever brought without alleging that they were hurt by it.
Speaker: Would that be so terrible? I mean, maybe that is what the law could be, that if you refer someone on the basis of a vacancy, you have an interest in filling vacancies, that you have a right to expect that you will get an honest answer.
Everette G. Allen, Jr.: Your Honor, in looking at violations in the Fair Housing Act, the usual starting place is what was the Congressional intent. The legislative history is of zero help here because it is obvious that Congress was only considering the direct... the people who were directly discriminated against. You can't get any help from the legislative intent as to whether they intended to benefit the indirect victims, much less fair housing organizations and testers. We just can't tell. So I can't stand here and talk about legislative intent because I don't know. What I can talk about is Article 3, and unless HOME can demonstrate that this steering harms its counseling service, it shouldn't be able to avoid the reasoning of the... which is what he seeks to do. The Seventh Circuit in Bellwood, speaking to similar allegations, said that the alleged injury, because they plead similar injury, is a natural concomitant of and so inextricably intertwined--
Warren E. Burger: We will resume there at 1:00 o'clock, Mr. Allen. You may resume, Mr. Allen. You have eleven minutes remaining.
Everette G. Allen, Jr.: Thank you.
Warren E. Burger: There is no requirement that you use all of it.
Everette G. Allen, Jr.: Thank you. The Seventh Circuit in Bellwood addressed similar standing questions with respect to a fair housing organization there known as Leadership Council, that made pleadings similar to those made here, and concluded that its alleged injury was just the natural concomitant of and so intertwined with its abstract concern as to be inseparable for Article 3 purposes, and we submit that that rationale is applicable here. Unless the standing requirement is satisfied, simply because Havens is steering, there is no, absolutely no facts plead to support a causal connection between that steering and its counseling service. Admittedly, as Mr. Justice Stevens pointed out, there is a conclusory allegation that they were harmed. There are no facts plead that any HOME client was ever sent to this apartment complex, that HOME ever sought any information for this complex. As Justice Powell noted, they had the duty to get information but they never called, they never called Havens and said--
Speaker: Well, what about the notice pleading concept of the federal rule? If this had been a summary judgment, wouldn't you be in a much stronger position where there had been discovery and so forth, than rather just to go off on the pleadings without any affidavits or discovery?
Everette G. Allen, Jr.: --No, Mr. Justice Rehnquist, because I don't believe the concept of noticed pleading ought to be applicable to standing. Standing is a jurisdictional matter, and in order to invoke the power of the federal court, there ought to be facts that distinctively and affirmatively show that the federal court has got power, and I don't think that the idea of noticed pleading, where the plaintiff is just supposed to put the defendant generally on notice of what the claim is about, ought to be the same standard when you are talking about standing.
Speaker: Well, there are individuals involved here, aren't there?
Everette G. Allen, Jr.: Yes, there are, Your Honor.
Speaker: Would you say that jurisdiction of the federal court is defeated if you plead the wrong statute? If you said 1331 instead of 1343.3, do you think it would be thrown out of court?
Everette G. Allen, Jr.: Well, Your Honor, I think in a motion--
Speaker: If the facts that are alleged would satisfy one or the other.
Everette G. Allen, Jr.: --As a practical matter, I don't think it would happen, because as a practical matter--
Speaker: Well, it happens all the time.
Everette G. Allen, Jr.: --Well, as a practical matter, I think it would be called on a motion to dismiss to the plaintiff's attention and would be corrected, but that is not the case here. We are talking about pleading facts. You are referring to a technical area.
Speaker: I am referring to 804, where the only thing you have to plead is that you are a person, and that you have been given false information.
Everette G. Allen, Jr.: Your Honor, if that standard... if that is the standard that governs this Court, then with respect to two testers in Bellwood who lived outside the area, they would not have been denied standing. In that particular case, they were testers. They were given false information. They did not plead 804(d). When they got to this--
Speaker: Do you think Bellwood holds that they wouldn't have standing?
Everette G. Allen, Jr.: --It holds--
Speaker: Under 804?
Everette G. Allen, Jr.: --It didn't address the question, because--
Speaker: All right. It doesn't hold it, then, does it?
Everette G. Allen, Jr.: --No, it doesn't. It was never addressed, and Your Honor, my point is here, it was never raised in this case until it came to this Court.
Speaker: It is raised now.
Everette G. Allen, Jr.: Yes, it is, Your Honor. Let me turn to the testers. The Fourth Circuit found standing for the testers on two grounds, first, as surrogates raising the rights of third parties, and secondly as individuals denied the benefit of interracial associations. We submit that the Fourth Circuit reliance on Pierson and Evers is wrong, that the emphasis is misplaced. The plaintiffs in those cases had standing because they had injuries, not because they were tested, and the testing motive is absolutely irrelevant for standing purposes. The Fourth Circuit's decision granted standing as a tester qua tester without regard to any allegation of injury, its reasoning being the broad public policy of the Fair Housing Act. That flies in the face of Article 3, and cannot be sustained. Now, before this Court, Respondents have abandoned the tester qua tester issue. They no longer argue, as the Fourth Circuit held, that Kent Willis has standing. They only argue for Sylvia Coleman's standing on the basis of, as Mr. Justice White has said, her 804(d) claim. Still, the Fourth Circuit's opinion with respect to tester qua tester standing is still there and has to be corrected--
Speaker: What if Congress had funded a series of state and local agencies to do testing, and rather expressly provided that those testers were to be able to bring an action under the section that you assail here? Would you say that that violated Article 3?
Everette G. Allen, Jr.: --I would. I would say... I would say that... it is difficult to say that Congress can't create an agency and give that agency enforcement power. But to allow that agency to... and I think this is perhaps the way to answer it... to enforce the same rights that private individuals could enforce... for example, Section 813, I believe, gives the Attorney General certain rights with respect to practices and patterns, et cetera. That is okay. But I think it would violate Article 3 for Congress to set up an independent agency and to say, you know, go get them on civil grounds. Yes. I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Ms. Ruiz?
Vanessa Ruiz: Mr. Chief Justice, and may it please the Court, this case presents the issue whether a local fair housing group and two individuals, one black and one white, who have engaged in testing of the defendant's housing practices have standing under the Fair Housing Act to obtain relief from the defendant's racially discriminatory housing practices when the local fair housing organization and the individuals both reside in the community that they claim has been affected by these racially discriminatory housing practices, and have been the recipients of racially biased housing information from this defendant.
Speaker: Ms. Ruiz, could I ask you about your definition of the word "community"? Would you think community as you have just used it could be extended to mean the whole northeast corridor of the United States, from Boston to Richmond?
Vanessa Ruiz: No, sir. I don't think that a person who lives in Boston could claim that his community, his day to day life, his day to day activities, are affected in the way that we claim that they have been affected in this case by the activities, let's say, of a realtor in New York. No, would not extend it that far, and this case does not extend that far. This case only deals with the Richmond area. The case is before this Court in a somewhat unusual posture, and it presents a narrower issue. The case is here on review from a grant of a motion to dismiss for lack of standing. Therefore, the complaint must be presumed true and construed in favor of the plaintiffs. The complaint was filed on January 19th, '79. By February 16th, the plaintiffs were out of court. They appealed to the Fourth Circuit, which held in their favor. The defendants then petitioned this Court for review. While this whole appeals process was taking place, however, the companion case of Paul Coles, a black man denied housing by Havens, continued on to discovery and for trial on the merits. After presentation of the evidence to the District Court, the judge found, and I quote from the findings of fact, that "Havens Realty established a policy of discrimination against black people in the rental of its apartments, and that this was a conscious and deliberate policy on the part of Havens Realty. " Because of the procedural posture of this case before this Court, review of the grant of the motion to dismiss and the finding that the defendant has violated the Fair Housing Act in Section 1982, we believe that this case presents only the issue of whether these plaintiffs, Respondents before the Court here today, should be allowed to go back to the District Court, pick up where they left off, and continue to prove their case, that they are entitled to relief from these defendants.
Speaker: Ms. Ruiz, isn't there a provision in the federal rules that upon the filing of a motion to dismiss, you can ask that ruling on it be deferred pending taking of depositions or affidavits?
Vanessa Ruiz: Indeed, sir, we requested that. We requested that the District Court on a motion for reconsideration that the... that any decision on the motion to dismiss be deferred until the taking of an already scheduled deposition. In fact, we also noted the fact that this Court was considering and would shortly be deciding the Bellwood case, which would probably be instructive to the District Court. That motion was... that request was denied.
Speaker: What do you have to say about the suggestion that this might be an appropriate case for exercising discretion to dismiss as improvidently granted because of the intervening events, that is, the consent decree?
Vanessa Ruiz: Well, we think that the consent decree does not render the case moot, so that the court has power, has jurisdiction to hear the case if it so wishes. The court might decide, however, that it does not wish to hear this case at this time because precisely of the procedural posture, the somewhat skimpy record that is available for review, and we would not be at all adverse to a decision that the writ was improvidently granted.
Speaker: That would leave your win intact below.
Vanessa Ruiz: That's right. 0 [Generallaughter.]
Speaker: And you would go into the District Court and proceed.
Vanessa Ruiz: We would then go to the District Court and proceed, sir. The clear statutory language of the Fair Housing Act, the broad remedial purposes of the Fair Housing Act, the Congressional intent expressed in the statutory scheme of the Fair Housing Act for strong private enforcement of the Fair Housing Act, and this is a private action, private plaintiffs against a private defendant, and this Court's decisions in Trafficante and in Bellwood that standing under the Act is to be as broad as permissible under Article 3, require that these plaintiffs be granted standing to proceed with their action.
Speaker: Ms. Ruiz, do you concede that Willis lacked standing?
Vanessa Ruiz: No. Justice O'Connor, we believe that Mr. Willis has standing based on his claim that as a resident of the community affected by the racial steering practices, he has been affected and injured by these practices. Because of the particular facts in this case, where Mr. Willis was not given misinformation, racially biased misinformation by Havens, we believe that he would not have a claim under Section 804(d), but he would have standing as a resident of the community affected by these practices. Ms. Coleman, however, was given such misinformation, and the statute makes it unlawful to misrepresent on the basis of race to any person, and that would include Ms. Coleman.
Speaker: Would her claim be time barred, however?
Vanessa Ruiz: Her claim? No, we don't believe it would be time barred, because the violation which has been alleged here and which in fact was found by the district judge, is the policy, on an ongoing and continuing basis, a policy of discrimination, a policy of racial steering. Now, that policy extended back for a period of time, during the time when Ms. Coleman contacted Havens up to the limitations period, the 180-day period, which was Mr. Cole's incident, and indeed, continued past that, to 1978 through 1980, as we have been able to see now, pursuant to the claims filed under the consent order was the claimants came forward and were granted relief by the court pursuant to the magistrate's recommendation that they had been discriminated by Havens Realty during those times.
Speaker: Could someone, do you think, come forward now and say that they were a victim of a steering practice in 1969 because it was a continuing violation and Havens had always steered, even after the 1968 Act made it unlawful?
Vanessa Ruiz: In 1969, the action would have been unlawful. The claim, if they could prove that their claim was based on the same policy and practice, and I think that that would be a difficult claim to make, but assuming that they could, I think their claim should be... should be heard by the court. In a situation such as that, of course, the court has certain kinds of discretionary and prudential authority, where it would be unfair to the defendant to exclude certain claims, but that again is not this case. In this case, we are talking about incidents that occurred not a number of years back but a mere two, three months before the Coles incident.
Speaker: The reason I ask the question is, you have used in your argument the term "continuing violation", and the term "community", both of which recur in cases such as these, and both of which are somewhat amorphous, I think.
Vanessa Ruiz: Well, they were put in this way, and without specific reference to any particular community or any particular defendant; they may seem amorphous, but isn't that, after all, what the purpose of a factual inquiry, of a trial on the merits, of a judicial determination is, to see what is the scope of this violation, what is its nature, how far has it extended? Again, in this case, we have not had that opportunity, sir. I would like to address the--
Speaker: May I ask you one other question--
Vanessa Ruiz: --Yes, Justice Stevens.
Speaker: --on the limitations point, Ms. Ruiz? Which section of Section 3604, which subsection do you contend that the steering practice violates?
Vanessa Ruiz: The steering practice, where it referred to Mr. Coles, would have violated Section 804(a).
Speaker: Take the white tester. His claim.
Vanessa Ruiz: Well, his claim, had he in fact not received accurate information--
Speaker: Well, he did receive accurate information.
Vanessa Ruiz: --He did receive accurate information, right, so we are not pressing his claim under 804(d).
Speaker: No, I am asking--
Vanessa Ruiz: But had he received inaccurate information it would have been Subsection (d) of 804.
Speaker: --No, but he didn't. I am asking you what section would you contend he can invoke in order to be covered in this case?
Vanessa Ruiz: Oh, I am sorry.
Speaker: Say he was the only plaintiff in the case.
Vanessa Ruiz: He could under... actually under both Sections 804(a) and (d). Mr. Willis's claim in that case would be no different from the claims of the plaintiffs in Bellwood. There what they claimed was that the rights of third parties had been violated. Now, the rights of those third parties might have been under Sections 804(a) or (d), but that the injury was to the plaintiffs before the court. That would be in essence Mr. Willis's claim, that he had been injured, but that his injury resulted from the violation of the right that a third person had under the statute. This, in essence, is this Court's holding in Trafficante and in Bellwood.
Speaker: His right to neutral racial living conditions?
Vanessa Ruiz: That's right, his right--
Speaker: In his community.
Vanessa Ruiz: --His right to live in a community that is normal, that is stable, that is not subject--
Speaker: So that is his own right.
Vanessa Ruiz: --That is his own right. That's right.
Speaker: His own right that he is alleging.
Vanessa Ruiz: Well, no, that is his own injury.
Speaker: Yes.
Vanessa Ruiz: He has an injury in that the community has been manipulated from outside.
Speaker: He has a right under the statute not to have that happen.
Vanessa Ruiz: That's right, because the statute says--
Speaker: That is his claim, anyway.
Vanessa Ruiz: --That is right. That is his claim. I would like to address the argument by opposing counsel that testers do not have standing qua testers. In fact, we do not make that argument, and we do not posit that that the standing of Willis and Coleman is based on their status as testers. What we say is that the fact that they engaged in testing does not undermine their standing, given the fact they have a good claim on their own. This Court's prior decisions concerning standing have addressed usually two factors. One, whether the case is justiciable, and two, whether there is adverseness between the parties. In this case, the fact that the Fair Housing Act has provided a broad remedy for any person is a clear indicator that the case indeed is justiciable. The Congress has said that the courts should be hearing this type of case. This is, indeed, where these grievances are to be brought. The sole question then is whether there is adverseness between the parties, is there a case or controversy between these two parties? Is there injury in fact?
Speaker: If the statute had provided any person seeking a place of residence in good faith, and then went on as it does, then you wouldn't be here, I take it.
Vanessa Ruiz: That's right, sir. In fact, the statute requires that under the first phrase of Section 804(a), but not as to any other. It does not require it as to this. So the only requirement is that there be an injury in fact to these plaintiffs that is fairly traceable, that is plausibly connected.
Speaker: May I ask one other question? Does that injury have to occur within 180 days of the filing of the complaint? Supposing the white tester moved to Boston 181 days before the lawsuit was filed. Would he still have standing?
Vanessa Ruiz: The white tester had moved to Boston.
Speaker: Moved to Boston. Yes. But he had suffered all these injuries during the months previous to his move. Would he have a claim?
Vanessa Ruiz: Well, he clearly would have had it before. I am not sure that the move would totally mitigate... in fact, he may be--
Speaker: Well, either his claim is barred or it isn't. What I am asking you is, does the injury to the plaintiff... must the injury to the plaintiff occur within the 180-day period?
Vanessa Ruiz: --No, sir. What the statute says is that the housing practice must have occurred within the 180 days.
Speaker: So you would say if he moved to Boston five years ago, but prior to the five years he had suffered from the same practice that continued into the 180-day period, he could still sue?
Vanessa Ruiz: I think that case would present other problems.
Speaker: What is the problem?
Vanessa Ruiz: Well, the problem might be that actions, events subsequent to the happening--
Speaker: It is a continuous practice. You prove that they did it every week for five years.
Vanessa Ruiz: --Yes, but the question would remain whether there is an injury to this plaintiff, and if he has moved to--
Speaker: Well, it did, but it occurred five years ago. Can he recover? If he can't recover then, why can he recover when it is only 181 days ago?
Vanessa Ruiz: --Well, I would say that there is indeed a difference between its being five years and only 181 days.
Speaker: Well, the statute draws the line at 180 days.
Vanessa Ruiz: As far as when the housing practice, the violation must have occurred--
Speaker: Well, I am asking you, though, if there is also any time limit on when the injury must occur.
Vanessa Ruiz: --The statute does not provide any kind of limitation on when the injury must have occurred. Now, assume that going back you could... you couldn't go back further than 1968, which is when this policy was made to be unlawful.
Speaker: Well, of course you can't go back further than 1968, but if you would go back 181 days, I don't know why you can't go back five years.
Vanessa Ruiz: Well, again, you get into an area where you look at other factors. How fresh is the evidence? I mean, we are really talking now--
Speaker: It is very fresh. We've got tape recordings of everything.
Vanessa Ruiz: --Well, if we have tape recordings, and there is absolutely no question that the plaintiff can come forward and prove his claim, if there is no unfairness to this defendant because it is one and the same practice, and there has been a policy, I would say yes, he can bring his claim. It is not this case, but I would say that there is no logical inconsistency with saying that claimant could bring the claim.
Speaker: Ms. Ruiz, the Solicitor General takes the position that the continuing violation theory does not apply to a party who merely asserts a right to receive correct information, instead of the neighborhood resident theory. What is your comment about the Solicitor General's position?
Vanessa Ruiz: Well, I think that when we talk about a continuing violation, we are focusing not on the plaintiff and the right asserted, but on the violation and the conduct of the defendant, and if the receipt of misinformation has been pursuant to an ongoing, continuing practice that violate the Act, we contend that even the person who brings an action under 804(d) for receipt of misinformation is entitled to have that claim survive on a subsequent incident which is within the 180-day limitations period, because it is part of one same continuing practice. It is the defendant's conduct that we look to then, not the nature of the claim. This case, as far as the injury claimed, as far as the pleadings filed, is really no different from the cases of Trafficante and Bellwood and Village of Arlington Heights. We think those cases are consistent with the Fair Housing Act and the purpose of the Congress in enacting the Fair Housing Act, and we urge this Court to affirm the Court of Appeals.
Warren E. Burger: Do you have anything further, Mr. Allen?
Everette G. Allen, Jr.: Yes, Your Honor. To start with counsel's last point, it was that this case is like Trafficante and Bellwood, and I have to say that I think that's absurd. Trafficante allowed persons injured by discrimination against others to assert the rights, and we were talking about an apartment complex, where the act of discrimination, the racial manipulation was at that apartment complex. Bellwood changed it a bit, because in Bellwood you had a village of 20,000 people, and you had a fairly sizeable area within that village of 12 to 13 blocks, and notwithstanding that, the Court had some difficulty and in fact refrained from allowing standing for two plaintiffs that lived outside of that target area. Now what we have done is, we have contracted the target area down to two apartments, and we have expanded the size of the area that the people can live in to a whole metropolitan area. This is a quantum leap from Bellwood. And if it goes that far, where does it stop next? In reading the Bellwood oral arguments, one question from the bench was, where does this end? And if we lived in northern Illinois, and we don't like what is going on in Bellwood, can we complain about it? And the answer was, oh, no. Oh, no. We are going to be reasonable about this, and we are only going to deal with an area that is affected. Another question asked from the bench in Bellwood is, how many private attorney generals are we talking about? Well, in Richmond, Virginia, if this complaint is upheld, you are talking about 400,000. There is no question about that. The question was raised, well, should we dismiss the writ as improvidently granted and opposing counsel says, well, we just want to go back and amend. It has been admitted that the Fourth Circuit's decision in tester qua tester is wrong. That needs to be changed. That can't be left standing by dismissing the writ as improvidently granted. The representational standing. The facts are not in that case to support representational standing, and no one can say that they are. Thirdly, this decision by the Fourth Circuit is such a far step from Bellwood that it shouldn't be allowed to stand. Mr. Justice Rehnquist raised, well, you know, why didn't you move to... why didn't you move to be given the right to furnish information later? The point was, Mr. Justice Rehnquist, they had this opportunity. When the defendant moved to dismiss this case, they had an opportunity then to supply whatever facts they wanted to supply. They have had no difficulty supplying them in this brief before this Court for the first time. The important thing to note here is that these Respondents wanted to stand on this complaint. They wanted this District Court to accept the broad allegations in this complaint and that is why they plead it. That is why they had final judgment entered under Rule 54, and that is why they have appealed. This isn't a matter of inadvertently doing anything wrong. This was a deliberate effort to have these broad allegations accepted by the District Court.
Speaker: If we found that Coleman... Coleman was the black lady?
Everette G. Allen, Jr.: Yes, sir.
Speaker: If we found that Coleman had standing, would we need to reach the standing of anybody else?
Everette G. Allen, Jr.: Your Honor, yes, you would, because Coleman's claim under Section 804(d) is, as Justice O'Connor pointed out, absolutely barred by the statute of limitations. That receipt of false information is a claim personal to the recipient. And I don't see how the statute can be interpreted any other way than that she has got 180 days from the day she gets that wrong information to bring that claim, and to allow that to slid in under a continuing violation theory just doesn't make any sense. So you do have to reach--
Speaker: What was her claim, though?
Everette G. Allen, Jr.: --Her claim was--
Speaker: What would be her remedy? Suppose it was--
Everette G. Allen, Jr.: --Your Honor, that is my point.
Speaker: --What if it was timely?
Everette G. Allen, Jr.: That is my point.
Speaker: Well, you haven't made it yet, then. What is your point? What would be her remedy if her claim were timely?
Everette G. Allen, Jr.: The point is, she hasn't been injured, and she doesn't care about any relief. She received this information solely to test. She got false information, but the point is, what does she care? She is just doing her job. That is not an entry under Article 3, and that is why she doesn't have standing pursuant to Article 3. She hasn't been injured.
Warren E. Burger: Very well. Thank you, counsel. The case is submitted.