Kimberly Mitchell; Kenneth Mitchell v. Pat Cellone

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
NO. 04-1063
KIMBERLY MITCHELL;
KENNETH MITCHELL
Appellants
v.
PAT CELLONE; P&R PROPERTIES,
INC.; P&R PROPERTIES, LP
On Appeal from the United States
District Court for the Western District
of Pennsylvania
(D.C. Civil No. 01-cv-02028)
District Judge:
Hon. Maurice B. Cohill, Jr.
Argued October 7, 2004
BEFORE: SLOVITER, VAN
ANTWERPEN, and COWEN,
Circuit Judges
(Filed: November 1, 2004)
James Q. Harty, Esq. (Argued)
DKW Law Group
600 Grant Street
USX Tower, 58th Floor
Pittsburgh, PA 15219
Counsel for Appellants
Robert E. Durrant, Esq. (Argued)
Campbell, Durrant & Beatty
555 Grant Street
Suite 310
Pittsburgh, PA 15219
Counsel for Appellees
OPINION
VAN ANTWERPEN, Circuit Judge
This case presents a question that
has not previously been answered in this
Circuit concerning the Fair Housing Act.
Shou ld a cou ple all eging racial
discrimination in housing be allowed to
initiate a private lawsuit in federal court, if
t h ey h a v e p r e v io u s l y f i l ed a n
administrative complaint under the Fair
Housing Act that has resulted in a state
agency bringing a state court action against
the alleged discriminator? We answer this
question in the affirmative, and therefore
we reverse the order of the District Court
which dismissed the case for lack of
jurisdiction.
I.
The Fair Housing Act was designed
to provide nationwide fair housing to

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minorities who had previously been
victims of invidious racial discrimination,
and is a valid exercise of congressional
power under the Thirteenth Amendment to
eliminate badges and incidents of slavery.
See Jones v. Alfred H. Mayer Co., 392
U.S. 409, 439-440, 88 S.Ct. 2186, 20 L.
Ed. 2d 1189 (1968). This legislation
makes it the policy of the United States to
elimin ate all instance s of ra cial
discrimination in housing.
Kimberly and Kenneth Mitchell are
African-Americans who attempted to rent
an apartment from Ms. Pat Cellone, the
operating owner for the buildings owned
by P&R Properties, Inc. and P&R
Properties, LP,1 in late June, 1998. The
Mitchells were shown two apartment
complexes: the racially homogenous
Tuscany A partme nts building in
Pittsburgh, Pennsylvania, and the racially
heterogeneous Carnegie Apartments
b u i l d in g , l o c a t e d in C a r n e g i e ,
Pennsylvania. Both complexes are owned
by P&R Properties. The Mitchells chose
to rent an apartment in the Tuscany
building, and on June 30, 1998, signed a
one-year lease for an apartment in that
building. They also paid the required
application fee, first month’s rent, and the
appropriate security deposit. That same
day, Ms. Cellone gave them keys to the
Tuscany apartment, as well as an
electronic access card for the building, and
a garage door opener.
The next day, the Mitchells
received a telephone call from Ms.
Cellone, asking them to reconsider their
move into the Tuscany building. From this
and subsequent conversations, the
Mitchells concluded that, because of their
race, they were being steered away from
the homogenous Tuscany building toward
an apartment in the racially-mixed
Carnegie building.2 The electronic access
card given to the Mitchells was
subsequently deactivated, preventing them
from entering the Tuscany building.
On or about August 11, 1998, the
Mitchells filed a complaint with the United
States Department of Housing and Urban
Development (“HUD”), alleging that the
Appellees’ actions violated the Fair
Housing Act, 42 U.S.C. § 3601 (2003), et
seq. (“FHA”). The Secretary of HUD
referred the complaint to the Pennsylvania
Human Relations Commission (“PHRC”),
as required by 42 U.S.C § 3610(f). PHRC
initiated an investigation and determined
there was probable cause to credit the
Mitchells’ allegations. Both the M itchells
1 We shall refer to appellees P&R
Properties, Inc. and P&R Properties, LP
collectively as simply “P&R Properties.”
2 According to the facts alleged in the
complaint filed with the Pennsylvania
Human Rights Commission, the Mitchells
were told that tenants in the Tuscany
building might be intimidated by the race
and size of Mr. Mitchell (referring to him
as a “black Arnold Schwarzanegger”), and
that the Mitchells would be more
comfortable in the Carnegie building since
some of the tenants in that building were
African-American. See Appendix to Brief
of Appellants, pg. 25.

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and Appellees elected under the
Pennsylvania Human Relations Act, 43
P.S. § 959(d.1) (Supp. 2004), to have the
complaint heard in the Commonwealth
Court of Pennsylvania (as opposed to an
administrative hearing), where PHRC
would litigate on behalf of the Mitchells.3
A trial date was set for sometime in
February, 2002. Dissatisfied with the
denial of their motion to intervene, the
Mitchells moved to discontinue the action
before the Commonwealth Court on or
about November 29, 2001, which was
granted.
On or about October 29, 2001, the
Mitchells filed this federal complaint in
the United States District Court for the
Western District of Pennsylvania, alleging
both that the Appellees’ actions violated
the FHA and infringed upon the federal
property rights guaranteed to them as
minority citizens pursuant to 42 U.S.C. §
1982. The Appellees filed a Motion to
Dismiss, which was granted on November
17, 2003. See Mitchell, et al. v. Cellone,
et al., 291 F. Supp.2d 368 (W.D. Pa.
2003). In that Order, the District Court
concluded that it was without jurisdiction
to hear the FHA claim, and that the section
1982 claim had been filed beyond the two-
year statute of limitations period. The
Mitchells moved for reconsideration of
this ruling under Fed. R. Civ. P. 59(e), but
their motion was denied. This appeal
followed.
II.
The Mitchells filed a timely Notice
of Appeal pursuant to Fed. R. App. P. 4.
We have appellate jurisdiction over this
final order of the District Court pursuant to
28 U.S.C. § 1291. Where issues of
statutory interpretation are implicated, we
will exercise plenary review over a district
court’s decision. See U.S. v. Thayer, 201
F.3d 214, 219 (3d Cir. 1999).
III.
Because the District Court’s
decision was based exclusively on the
wording of 42 U.S.C. § 3613, we will
begin, as in all statutory interpretation
cases, with the language of that statute.
See Barnhart v. Sigmon Coal Co., 534
U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed.
2d 908 (2002).
An aggrieved person may
commence a civil action in
an appropriate United States
district court or State court
not later than 2 years after
the occurrence or the
termination of an alleged
discriminatory hou sin g
practice, or the breach of a
concil i a ti o n agreement
entered into under this
subc hapte r , w h i c h e v e r
occurs last, to obtain
appropriate relief w ith
respect to such
3 The Mitchells sought to intervene in
their own right before the Commonwealth
Court, but that court denied their
application in an unreported memorandum
opinion.

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discriminatory housing
practice or breach.
See 42 U.S.C. § 3613(a)(1) (2003).
It is not within the province of this
or any other court to interpret what needs
no interpretation. See Watt v. Alaska, 451
U.S. 259, 266, 101 S. Ct. 1673, 68 L. Ed.
2d 80 n.9 (1981) (noting that, while the
plain-meaning rule is not absolute, “the
words used, even in their literal sense, are
the primary, and ordinarily most reliable,
source of interpreting the meaning of any
writing: be it a statute, a contract, or
anything else”). If a statute is plain in its
terms, we shall apply the legislature’s
instructions as long as they are
constitutional. See Caminetti v. United
States, 242 U.S. 470, 485, 37 S. Ct. 192,
61 L. Ed. 442 (1917) (“It is elementary
that the meaning of the statute must, in the
first instance, be sought in the language in
which the act is framed, and if that is
plain, and if the law is within the
constitutional authority of the law-making
body which passed it, the sole function of
the courts is to enforce it according to its
terms.”). Our consideration of a statute
must be in its entirety–we will not confine
our interpretation to a single section, nor
will we ignore the legislative scheme of
which a particular provision is part where
the wording of a statute is not certain. See
U.S. Nat. Bank of Oregon v. Independent
Ins. Agents of America, Inc., 508 U.S.
439, 455, 113 S. Ct. 2173, 124 L. Ed. 2d
402 (1993) (“[The courts] must not be
guided by a single sentence or member of
a sentence, but look to the provisions of
the whole law, and to its object and
policy); see also N.J. Transit Policemen's
Benev. Ass'n Local 304 v. New Jersey
Transit Corp., 806 F.2d 451, 453 (3d. Cir.
1986) (“In seeking to dis cern
Congressional intent from the legislative
text, a court must be mindful of the
statute’s object and policy and must read
the disputed provision in the context of the
entire statute and the provisions of related
statutes.”).
The dispute between the parties has
focused on the enforcement procedure
available for those alleging violations of
the FHA. Enforcement is accomplished in
two ways that are relevant here:
administrative enforcement under 42
U.S.C. § 3610, and private enforcement
under section 3613.4 Under section 3610,
an aggrieved person may file a complaint
with the Secretary of HUD alleging a
discriminatory housing practice. By its
terms, section 3610 requires the Secretary
to refer a housing complaint to a certified
state public agency (if one exists), which
will shoulder the responsibility for
investigation and, if warranted,
prosecution of a housing discrimination
claim. See 42 U.S.C. § 3610 (2003).
Alternatively, section 3613 allows for a
civil cause of action in either State or
Federal court within two years5 after any
4 A third option, enforcement by the
Attorney General, is authorized by 42
U.S.C.
§ 3614.
5 This two-year statute of limitations is
tolled during the time an administrative

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alleged housing discrimination, whether or
not an administrative complaint has been
filed under section 3610. See 42 U.S.C. §
3613(a)(2) (2003) (“An aggrieved person
may commence a civil action . . . whether
or not a complaint has been filed under
section 3610(a) of this title and without
regard to the status of any such complaint.
. . ”) (emphasis added). 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. See 42 U.S.C. §
3613(a)(3) (2003). As we read the statute,
the plain language of sections 3610 and
3613 state that 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.
Our reading of section 3613 is
bolstered by the FHA’s legislative history.
Congress enacted the FHA following the
urban unrest of the mid-1960s. 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. See House Report
(Judiciary Committee), Fair Housing
Amendments Act of 1988, Pub. L. No.
100-430, 1998 U.S.C.C.A.N. 2173, 2177.6
Simply put, those most affected by racial
discrimination in housing were primarily
low income minorities who did not have
the resources to privately enforce the
FHA, at least not on a scale sufficient to
achieve the government’s goal of
eradicating housing discrimination. As
such, the one-hundredth Congress moved
to strengthen the FHA through the 1988
amendments. See generally Fair Housing
Amendments Act of 1988, Pub. L. No.
100-430, 102 Stat 1619 (2003) (“FHAA”).
One of the declared purposes of the
FHAA was to alleviate the burden placed
on private individuals and fair housing
organizations who, prior to amendment,
shouldered primary enforcement
responsibility. One of the key
modifications made to the FHA was the
addition of section 3 610, th e
administrative enforcement mechanism.
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. See House Report (Judiciary
Committee) at 2178. This history
demonstrates to our satisfaction that
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
proceeding is pending. See 42 U.S.C. §
3613(a)(1)(B).
6 No Senate report was submitted with
this legislation.

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avenue of redress. See House Report
(Judiciary Committee) at 2197 (“Dismissal
by the Secretary [of an administrative
complaint] does not preclude an aggrieved
person from filing a civil action under
[section 3613], but indicates the end of the
Secretary’s involvement with that
complaint.”). Changes made to other
provisions of the FHA bear this out: the
Committee noted that the amendment
made to 42 U.S.C. § 3612(f) required
“cessation of administrative proceedings
at the commencement of a trial brought by
the same aggrieved person challenging the
same alleged discriminatory housing
practice . . . this is intended to prevent
multiple adjudication of the same alleged
discriminatory housing practice.” See Id.
at 2198 (emphasis added); see also
generally 42 U.S.C. § 3612 (2003).
Moreover, the Committee report stated
that “an aggrieved person is not required
to exhaust the administrative process
before filing a civil action . . . the
administrative proceeding [is to] be a
primary, but not exclusive, method for
persons aggrieved by discriminatory
housing practices to seek redress.” See Id.
at 2200 (emphasis added). While under
42 U.S.C. § 3612(f), 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. The
statements of the House Judiciary
Committee, when coupled with Title
VIII’s goal of ending discrimination in
housing, support a finding that the
methods of FHA enforcement should be
construed broadly by the courts.
The Appellees would have us read
the conjunction “or” in section 3613(a)(1)
as preventing an aggrieved party from
bringing suit in federal court if an
administrative complaint resulted in any
connection whatsoever with state court.
This is an interpretation we cannot accept,
as it twists the clear language of sections
3610 and 3613, and ignores the policies
and goals articulated in the legislative
history of the FHA and its subsequent
amendments. We cannot and will not
distort section 3613 based simply upon
this restrictive reading of the conjunction
“or.”
Turning to the specific facts of this
case, we conclude that the Mitchells’
actions fell within the enforcement
scenario envisioned by the Congress when
it enacted, and later amended, the FHA.
Administrative enforcement of the FHA
was initiated by their complaint to the
Secretary of HUD, as authorized by
section 3610(a). The Secretary
thereinafter referred the complaint to the
PHRC (the certified state agency), per
section 3610(f). From that point forward,
all activity with regard to the Mitchells’
FHA claim was handled through PHRC,
in accordance with 43 P.S. § 959 (1991 &
Supp. 2004).7 The Mitchells were given
the option to have their complaint
prosecuted in either an internal
administrative hearing, or in an action
p r o s e c u t e d b y t he P H R C i n
7 43 P.S. § 959 is the Pennsylvania
c o u n t e r p a r t t o F H A § 3 6 1 0 ' s
administrative enforcement scheme.

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Commonwealth Court, pursuant to 43 P.S.
§ 959(d.1) (Supp. 2004),8 and all parties
chose to proceed judicially before the
Commonwealth Court. The civil litigation
commenced on behalf of the Mitchells by
PHRC was, as we see it, in furtherance of
the administrative complaint they
originally filed with HUD under section
3610, and hence part of the administrative
enforcement mechanism. We cannot
conclude this was a separate, private
enforcement action by the Mitchells, as the
Appellees insist. The Mitchells therefore
never exercised their option to bring a
private suit in state or federal court under
section 3613 until they filed the present
action on or about October 29, 2001. We
find nothing discordant between the FHA
enforcement scheme envisioned by
Congress and the manner in which the
Mitchells chose to proceed with their
discrimination claim. Therefore, we
conclude that the District Court was in
error when it found that it lacked
jurisdiction to hear the Mitchells’ case.
IV.
Finally, we note that the Mitchells’
section 1982 claim was not substantively
argued in their brief before us. Where an
appellant presents an issue in his statement
of issues raised on appeal, but not in the
argument section of his brief, he has
“abandoned and waived that issue on
8 Subsection d.1 reads, in relevant part:
When notice of hearing is
given as set forth in
subsection (d) and an
e l e c ti o n p roce d u r e is
required by the Fair Housing
Act, either party may elect
to have the claim asserted in
the complaint decided in a
civil action brought under
the original jurisdiction of
Commonwealth Court. The
written notice of the
Commission shall be sent to
all parties and will inform
them of their right to take
civil action. An election
must be made within twenty
days after receipt of the
notice of hearing. A party
making this election shall
notify the Commission and
all other parties. If an
election for civil action is
made by either party, the
Commission shall, within
thirty days from the date of
election, commence and
maintain a civil action on
behalf of the complainant
provided, however, that,
whenever the Attorney
General signs and files the
complaint pursu ant to
subsection (a), the Attorney
General shall, within thirty
days from the date of
election, commence and
maintain a civil action on
behalf of the complainant.

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appeal.” Travitz v. Northeast Dep’t
ILGWU Health & Welfare Fund, 13 F.3d
704, 711 (3d Cir. 1994). Here, the
Mitchells reference section 1982 twice in
their issue statement, but fail to articulate
in their argument section why the court
below was incorrect when it dismissed this
claim. As such, we conclude that this
issue has been waived.
V.
For the foregoing reasons, we
reverse the District Court with regard to its
dismissal of the Mitchells’ FHA claim and
remand this case for further proceedings.
We deem the issue of the District Court’s
dismissal of the Mitchells’ section 1982
claim to have been waived.

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