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Plaintiffs filing a claim of racial discrimination under the Fair Housing Act are not barred from pursuing a private lawsuit merely because they previously filed an administrative complaint before a state agency that also resulted in court action, the 3rd U.S. Circuit Court of Appeals has ruled. In its eight-page opinion in Mitchell v. Cellone, 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, 3rd Circuit Judge Franklin S. Van Antwerpen said, “The only limitation on this private avenue of enforcement is that an aggrieved person may not initiate a private suit if administrative enforcement has been activated and such enforcement has led to the commencement of an administrative hearing on the record.” As a result, 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 who claim 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, according to the opinion. In August 1998, the Mitchells filed a complaint with the U.S. Department of Housing and Urban Development against the owners of the buildings, Pat Cellone and P&R Properties Inc. In the complaint, the Mitchells claim they were told that tenants in the first building might be intimidated by the race and size of “Mr. Mitchell.” They claim Cellone referred to him as a “black Arnold Schwarzenegger,” and said the couple would be more comfortable in the second building since some of the tenants there were black. That complaint was referred to the Pennsylvania Human Relations Commission, which initiated an investigation and determined there was “probable cause” to credit the Mitchells’ allegations, according to the opinion. Both the Mitchells and the building owners at first agreed to have the complaint heard in the Pennsylvania Commonwealth Court — as opposed to an administrative hearing before the PHRC. A trial date was set and the PHRC was poised to litigate the case on behalf of the Mitchells. But 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 Section 1982. But Cohill dismissed the entire case, finding that the Section 1982 claim was filed beyond the two-year statute of limitations, and he had no jurisdiction to hear the FHA claim due to the prior administrative proceedings. Now the 3rd Circuit has ruled that Cohill was correct in dismissing the Section 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 — filing a complaint with HUD or filing 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].” A private suit is barred, Van Antwerpen found, only if the administrative complaint has progressed to the point of an administrative hearing on the record. In an opinion joined by 3rd Circuit Judges Dolores K. Sloviter and Robert E. Cowen, Van Antwerpen found that the legislative history of the FHA clearly shows that Congress never intended to deprive plaintiffs of a private cause of action. “The FHA, in its original form, provided for a clear national policy against discrimination in housing, but only provided for private enforcement. Twenty years later, Congress concluded that a primary weakness of the FHA was the limited means of enforcing it,” Van Antwerpen wrote. Since most of the potential plaintiffs were low-income minorities, Van Antwerpen said, Congress recognized that they often did not have the resources to enforce the FHA privately. As a result, Van Antwerpen said, Congress passed the Fair Housing Amendments Act of 1988, which included an administrative enforcement mechanism as one of its key provisions. “It was envisioned that this administrative mechanism would become the primary means of enforcing FHA claims, and that it would be an alternative to the private right of action that had been traditionally available,” Van Antwerpen wrote. “Congress envisioned that a complainant could sue through HUD and its state commission counterparts or initiate litigation privately: the choice of one alternative would not foreclose the other,” Van Antwerpen wrote. Significantly, Van Antwerpen said, the new law did not require plaintiffs to exhaust their administrative remedies before suing and called for “cessation” of administrative proceedings at the beginning of any trial of a private suit. 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.” Defense attorney Robert E. Durrant of Campbell Durrant & Beatty in Pittsburgh argued that the FHA’s provisions for administrative proceedings should be read to bar a plaintiff from bringing suit in federal court if an administrative complaint has resulted in any connection with state court. Van Antwerpen disagreed, saying, “This is an interpretation we cannot accept, as it twists the clear language of [the FHA amendments] and ignores the policies and goals articulated in the legislative history of the FHA.” Attorney James Q. Harty of the DKW Law Group in Pittsburgh represented the Mitchells in the appeal.

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