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Plaintiffs filing a claim of racial discrimination under the Fair Housing Act (FHA) are not barred from pursuing a private lawsuit merely because they had previously filed an administrative complaint before a state agency that also resulted in court action, the 3d U.S. Circuit Court of Appeals has ruled. Mitchell v. Cellone, No. 04-1063. A unanimous three-judge panel found that within the FHA, “a dual enforcement scheme exists that allows an aggrieved party to pursue both private and administrative enforcement until such time as either avenue has achieved resolution of the claim.” Writing for the court, U.S. Circuit Judge Franklin S. Van Antwerpen concluded that Senior U.S. District Judge Maurice B. Cohill Jr. of the Western District of Pennsylvania erred in dismissing a suit brought by Kimberly and Kenneth Mitchell, a black couple claiming that they had signed a lease and paid the first month’s rent on an apartment in an all-white building but were later urged to reconsider and lease a unit in a racially mixed building. The Mitchells claim that when they refused to consider the other building, the electronic access card they had been given to enter the first building was deactivated, effectively barring them from the building. In August 1998, the Mitchells filed a complaint with the U.S. Department of Housing and Urban Development (HUD) against the owners of the buildings, Pat Cellone and P&R Properties Inc. The complaint was referred to the Pennsylvania Human Relations Commission (PHRC), which initiated an investigation and determined that there was “probable cause” to credit the Mitchells’ allegations. The PHRC was poised to litigate the case on behalf of the Mitchells in the Pennsylvania Commonwealth Court. However, the Mitchells opted to drop the state court case after the Commonwealth Court denied their motion to intervene as co-plaintiffs. In October 2001, the Mitchells filed suit in U.S. district court alleging violations of the FHA as well as civil rights claims under � 1982. But Cohill dismissed the entire case, finding that the � 1982 claim was filed beyond the two-year statute of limitations, and that he had no jurisdiction to hear the FHA claim due to the prior administrative proceedings. Now the 3d Circuit has ruled that Cohill was correct in dismissing the � 1982 claim but erred in dismissing the FHA claim because the plain language of the statute shows that plaintiffs who begin an administrative complaint do not forfeit their right to file a private lawsuit in federal court. Van Antwerpen found that the FHA allows for two methods of enforcement: the filing of a complaint with HUD or the filing of a private lawsuit. The statute, Van Antwerpen found, specifically states that “an aggrieved person may commence a civil action . . . whether or not a complaint has been filed [with HUD].” Van Antwerpen concluded that while a complainant cannot pursue administrative proceedings once trial has begun in a federal court suit, “there is nothing to prevent him from pursuing both approaches until that time.”

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