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ROGERS v. 66-36 YELLOWSTONE BLVD. COOP. OWNERS

October 9, 1984

BERTHA M. ROGERS, Plaintiff, against 66-36 YELLOWSTONE BLVD. COOPERATIVE OWNERS, INC., Defendant.


The opinion of the court was delivered by: NEAHER

MEMORANDUM ORDER

Plaintiff Bertha Rogers, a black teacher, sued defendant 66-36 Yellowstone Blvd. Cooperative Owners, Inc. ("Yellowstone"), an apartment cooperative, under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981-82 (one claim), and the Fair Housing Act of 1968, 42 U.S.C. § 3612. Specifically, Mrs. Rogers charged Yellowstone with racial discrimination in disapproving her attempted apartment purchase. *fn1" On January 26, 1984, a jury returned a verdict for Mrs. Rogers on both statutory claims, awarding $25,000 in compensatory damages and $1,000 in punitive damages. *fn2"

 That verdict had solid record support. Though circumstantial, the evidence of discrimination was compelling. While having greater than a $500,000 net worth, Mrs. Rogers' proposed purchase of a $49,250 apartment was rejected purportedly because she did not meet Yellowstone's financial criteria. Defendant, in particular, was allegedly concerned with the "source" of plaintiff's wealth, i.e., how could she -- on a teacher's pay -- accumulate such assets.

 Although Yellowstone's supposed skepticism was unallayed by Mrs. Rogers' explanations (e.g., she bought real estate when prices and interest rates were low), the jury was satisfied as demonstrated by its answers to the Special Verdict Form. In the same way, the jury manifested its disbelief in Yellowstone's account. For instance, despite Yellowstone's given reason for disapproving the application and concimitant assertion that Mrs. Rogers' race played no part in that decision, the jury determined that "a motivating reason for defendant's refusal was the race of plaintiff." Special Verdict Form, §§ 1981-82, Interrogatory #3.

 Having itself heard the witnesses' testimony and assessed their credibility, the Court views that finding along with the verdict as a whole to be consistent with the evidence. From those prefatory remarks, the Court turns to the remaining issues.

 Attorney's Fees

 While not having yet moved, plaintiff's counsel stated at the trial's close and in a later conference that he would request attorney's fees. Given the absence of a formal motion, the Court will not now rule on that matter. However, having surveyed the law, the Court has discerned a threshold question that must be resolved.

 Plaintiff, as noted, prevailed on both her §§ 1981-82 and 3612 claims, each of which has related statutory provisions concerning attorney's fees. For §§ 1981-82, § 1988 also of Title 42 allows:

 "In any action . . . to enforce a provision of sections 1981, 1982 . . ., the court . . . may allow the prevailing party . . . a reasonable attorney's fee. . . ."

 For § 3612, its subsect. (c) states:

 "The court . . . may award . . . reasonable attorney's fees in the case of a prevailing plaintiff: Provided, That the . . . plaintiff in the opinion of the court is not financially able to assume . . . attorney's fees."

 (Emphasis in original.)

 As is obvious from its emphasized proviso, § 3612(c) presents a narrow avenue to attorney's fees recovery. And, due to her net worth, Mrs. Rogers could likely bear prosecuting expenses, thereby barring § 3612(c) compensation.

 Just as obviously, howevere, § 1988 does not contain § 3612(c)'s restrictive language. Moreover, at least two circuits marking the difference between those statutes have expressly held that, even though precluded in § 3612(c), recovery may be had via § 1988 -- when, as here, a plaintiff wins under both §§ 1981-82 and 3612.

 The Fifth Circuit in Woods-Drake v. Lundy, 667 F.2d 1198, 1204 (5th Cir. 1982), said:

 "Plaintiffs have prevailed . . . under both 42 U.S.C. § 1982 and . . . the Fair Housing Act. They are therefore entitled to benefit from the more liberal provisions of 42 U.S.C. § 1988, which allow recovery of attorneys' fees without consideration of plaintiffs' financial circumstances, as is required by 42 U.S.C. § 3612(c)."

 Similarly, the Sixth Circuit in Price v. Pelka, 690 F.2d 98, 100 (6th Cir. 1982), concluded:

 "The provisions of 42 U.S.C. § 1988 are more liberal than those of 42 U.S.C. § 3612(c).

 "[Plaintiff] prevailed on . . . here claims arising under the Fair Housing Act and 42 U.S.C. §§ 1981-82. We hold that she is entitled to benefit from the more liberal provisions of 42 U.S.C. § 1988."

 Cf. Wharton v. Knefel, 562 F.2d 550, 556 & n.30 (8th Cir. 1977) (Although succeeding under both statutes, plaintiff only sought appellate attorney's fees under § 1988. The Eighth Circuit granted that request remarking that, "A fee award under § 3612(c) would require us to decide whether . . . plaintiff is "financially able" to assume his attorney's fees a task more appropriate for the district court.").

 So, based on the caselaw from other circuits, attorney's fees would appear to be available in this action. See genereally Dugan, Civil Rights and Freedom of Contract: Employment, Housing and Credit Transactions, 27 S.D.L. Rev. 181, 192 n.110 (1982) ("[The Fair Housing Act's] limitation on . . . attorney fee awards do[es] not apply where housing discrimination conduct also violates 42 U.S.C. § 1982.") ("Dugan").

 Yet, the Second Circuit has not addressed the facial disparity between the two statutory recovery schemes. Cf. Fort v. White, 530 F.2d 1113, 1117-19 (2d Cir. 1976) (Since § 1988 had not yet been enacted, plaintiffs could not receive attorney's fees for their § 1982 claim. Still, an award was available under their Fair Housing Act claim and, thus, the district court on remand was to determine whether plaintiffs were able to assume those costs.).

 Necessarily, the parties here should have the opportunity to present their positions on that issue, which remains at least arguably open in this jurisdiction. Therefore, they are directed to discuss in memoranda whether attorney's fees are available in this case and, if so, whether reimbursement should be granted. Plaintiff also is to submit the amount sought supported by accompanying itemization. Defendant, of course, may challenge that figure and its underlying cost breakdown.

 Plaintiff's papers are due on October 19, 1984. Defendant will respond by October 29, 1984.

 Equitable Remedy

 Plaintiff has formally sought an injunction. Both sides have submitted briefs on the fittingness of that equitable remedy. Also, plaintiff has tendered a proposed order delineating the specific relief desired, to which defendant has responded by objecting to some terms and agreeing to others (should the Court deem an injunction merited).

 The statutes upon which Mrs. Rogers has prevailed permit injunctive relief. Though not literally, the Civil Rights Act of 1866 has been so construed. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 n.13 (1968), the Supreme Court commented:

 "The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not . . . prevent a federal court from fashioning an effective equitable remedy."

 See, e.g., Gore v. Turner, 563 F.2d 159, 162-63 (5th Cir. 1977) ("The district court held that defendant . . . racially discriminated against [plaintiff] in violation of 42 U.S.C. § 1981 and § 1982 by denying her the same right to lease rental property as . . . white ...


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