Justia Federal District Court Opinions

This case comes to us on appeal once again after our original remand to the District Court with instructions that the Court grant plaintiffs both injunctive relief against future acts of discrimination and relief neutralizing past acts of noncompliance by defendant Pelzer. United States v. Pelzer Realty Company, 5 Cir., 1973, 484 F.2d 438, 446, cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286.1 On remand the District Judge granted a permanent prohibitory injunction against Pelzer and its agents.2 United States v. Pelzer Realty Company, M.D.Ala., 1974, 377 F.Supp. 121, 125. We affirm.

The First Round

The Government brought this civil action in 1971 against Pelzer Realty and its president, William G. Thames, charging defendants with violating Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. § 3601 et seq. The complaint alleged that Pelzer and Thames discriminated against blacks in the terms and conditions of the sale of homes. The District Court found that no discrimination was shown and therefore dismissed the complaint. We reversed on the basis of our finding that Pelzer and Thames did refuse to sell homes to black applicants. Pelzer, supra, 484 F.2d at 440. We therefore found that the evidence established a pattern or practice of resistance under 42 U.S.C.A. § 3613.3 Pelzer, supra, 484 F.2d at 445.

On Remand

On remand the Government requested that the District Court enter an order enjoining discriminatory conduct in regard to housing, requiring defendants to implement an affirmative action program, and awarding $1,000 to each of the two individuals injured by defendants' discriminatory conduct.⁴ Pelzer responded to the Government's request for relief by claiming that it had sold at least 16 homes to blacks prior to May 23, 1974 (the date Pelzer's response was filed), that no injunction was necessary because there was no proof of past discrimination, and that the plaintiff could not be awarded damages without a jury trial.⁵

The District Court refused to enter what it termed the 'sweeping injunction' requested by the Government, which would encompass an affirmative action program, but the Court did order that

the Defendants, their officers, agents, employees, and successors, be, and each of them is hereby, permanently enjoined from discriminating against any person in relation to the sale of a dwelling on account of race, color, religion or natural origin.

377 F.Supp. at 125.

To the request for money damages for the injured parties the Court concluded that damages were neither pleaded nor proved by the Government,⁶ and that defendants had no opportunity to seek a jury trial as to the damage issue. Therefore, the District Court found that the plaintiffs were 'not entitled to damages at the hands of this Court.' Pelzer, supra, 377 F.Supp. at 124.Our Second Round

On appeal Pelzer has again argued that Pelzer homes have continued, as always, to be sold on a nondiscriminatory basis, Pelzer Realty Co. is no longer doing business, and both Thames and Pelzer Homes are participating in the Department of Housing and Urban Development (H.U.D.) Affirmative Marketing Plan.⁷ Although the Government claims that evidence of Pelzer's participation in the H.U.D. program is outside of the record,⁸ and that Thames made no mention of the program in his deposition taken by the government May 15, 1974, the Government has stated that it would be satisfied with an injunction similar to the affirmative action program.⁹

At oral argument this Court asked the Government to submit a proposed order for the District Court to enter, and Pelzer was encouraged to respond to the Government's proposal. While we appreciate fully the efforts of the Government and the criticism of counsel for Pelzer, on further consideration we conclude that the injunction entered by the District Court is in this case sufficient. That injunction permanently prohibits discrimination in the sale of homes by Pelzer or its employees or agents. The present injunction is sufficient to assure that contempt will be a ready weapon in case of violation by any of the covered parties. We are confident that the combination of the injunction and the involvement by Pelzer in the comprehensive H.U.D. program, which requires, among other things, the filing of monthly sales reports, will assure prospective home purchasers of future nondiscriminatory conduct by defendants. If this prediction does not materialize the District Court in this very case has the powerful sanction of contempt at its disposal.

As to the question of damages, because we find that there was no proof offered below as to the actual damages suffered by those against whom the defendants discriminated, we decline to decide whether, in a suit by the United States under § 3613, damages can be ordered by the Court alone or even with a jury.¹⁰ The Government faintly suggests that it entered so very little evidence on the question of damages because it expected that a subsequent evidentiary hearing would be held. Perhaps this was a misunderstanding on the Government's part since the trial court's action reflects the view that the case was ripe for decision. In any event we conclude that on this record there is no basis for questioning the District Court's refusal to award damages.

AFFIRMED.