(Doc. 85-1, ¶ 8.) He likewise claims that the Fair Housing Act did not authorize HUD to enter into negotiations with the city after the letter was sent, citing a provision of the Fair Housing Act that purportedly does not allow negotiations after a “charge of discrimination” has been issued. (Doc. 85-1, ¶ 8 (citing 42 U.S.C. § 3612).) Again, though, any appeal or negotiation process after HUD’s sending of the November 2013 letter would have been subject to Title VI, Section 504, and Section 109, not the Fair Housing Act. And MacKenzie has never alleged—and could never allege— that those statutes forbade HUD from negotiating with the city or allowing it to respond to the letter. See 24 C.F.R. §§ 1.8, 6.11(e), 8.56(j) (regulations authorizing HUD to attempt to effect voluntary compliance under Title VI, Section 504, and Section 109); see also 24 C.F.R. §§ 6.11(c), 8.56(h) (review rights after a letter of findings has been issued). MacKenzie also never has alleged any facts showing that HUD ever purported to issue a “charge of discrimination” under the Fair Housing Act.

Finally, as a matter of public policy, the fact that both Oregon and federal statutes permit aggrieved persons in housing discrimination cases to intervene as a matter of right supports the contention that an individual intervenor may not be adequately represented by a government plaintiff. See ORS 659A.885(10); 42 U.S.C. § 3612(o)(2). B. In the Alternative, Zagel Should be Permitted to Intervene Permissively.

Co., 45 F.3d 1329, 1332-33 (9th Cir. 1995) (non- pecuniary harms including emotional distress and humiliation qualify as “actual damages” under the Fair Credit Reporting Act, 15 U.S.C. § 1681); Anderson v. United Finance Co., 666 F.2d 1274, 1277 (9th Cir. 1982) (non-pecuniary harm constitutes “actual damages” under the Equal Credit Opportunity Act, 15 U.S.C. § 1691(e)). Other circuit courts have similarly held that the Fair Housing Act’s “actual damages” requirement, 42 U.S.C. § 3612(c), may be established through non- (Cont’d) Case5:12-cv-01382-PSG Document113 Filed04/10/15 Page28 of 34 22 PLAINTIFFS’ MEM. OF POINTS AND AUTH.

Co., 45 F.3d 1329, 1332-33 (9th Cir. 1995) (non- pecuniary harms including emotional distress and humiliation qualify as “actual damages” under the Fair Credit Reporting Act, 15 U.S.C. § 1681); Anderson v. United Finance Co., 666 F.2d 1274, 1277 (9th Cir. 1982) (non-pecuniary harm constitutes “actual damages” under the Equal Credit Opportunity Act, 15 U.S.C. § 1691(e)). Other circuit courts have similarly held that the Fair Housing Act’s “actual damages” requirement, 42 U.S.C. § 3612(c), may be established through non- (Cont’d) Case5:12-cv-01382-PSG Document109 Filed04/03/15 Page28 of 34 22 PLAINTIFFS’ MEM. OF POINTS AND AUTH.

a child under the age of 18, and two person households without a child under the age of 18. The policy at issue would prevent both sets of households from renting Defendants' studio apartments. Further, neither the complaint nor Exhibit A contains any factual allegations as to applicant flow. Thus, even if all the allegations in the complaint prove to be true, it will be impossible to ascertain from those allegations whether members of the protected class depend on the availability of studio apartments renting for approximately $870 per month. Without those data FHCW will be unable to determine both the proportion of the protected class adversely affected by the policy at issue and the proportion of the similarly situated non- protected class adversely affected by the same policy. In Paragraph 6.5 of the complaint FHCW alleges: Upon information and belief, there are victims of Defendants' discriminatory conduct or actions that are aggrieved persons within the meaning of 42 U.S.C. §3612(o). Case 2:16-cv-00922-TSZ Document 16 Filed 12/02/16 Page 23 of 26 GEORGE T. HUNTER ATTORNEY AT LAW DEFENDANTS' MOTION TO DISMISS 5900 48th Ave. South (2:16-cv-00922 TSZ) - Page 24 of 26 Seattle, WA 98118 206.851.7700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We submit that the allegation in Paragraph 6.5 fails to identify facts as to applicant flow data. In Arista Records, LLC v. Doe, 604 F.3d 110 (2d Cir. 2010), the Second Circuit examined the use of "upon information and belief" language in a complaint in the aftermath of Twombly and Iqbal.

Under the AFHA, as is true under the FHA, a court may not award a civil penalty in a case brought by the respective Attorneys General without a pattern or practice claim. See Ariz. Rev. Stat. § 41-1491.34(C); 42 U.S.C. §§ 3612(o)(3), 3613(c). As such, the issue of whether Defendants engaged in a pattern or practice of housing discrimination was actually litigated and necessary to support the judgment in the Cooke case.

For instance, the Attorney General may initiate civil proceedings on behalf of the United States in “pattern or practice” cases, 42 U.S.C. § 3614(a), or on behalf of an aggrieved person, following a determination by the Department of Housing and Urban Development (“HUD”) of reasonable cause and an election by either the complainant or respondent to a complaint of housing discrimination filed with HUD to proceed in federal court. See 42 U.S.C. § 3612(o).1 Furthermore, under the FHA private litigation is an important supplement to government enforcement. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972); 42 U.S.C. § 3616a (authorizing the Secretary of HUD to contract with private, non-profit fair housing organizations to conduct testing, investigation, and litigation under the FHA).

Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 1994)). For example, in Havens Realty Corp. v. Coleman, a leading case on informational standing, the Supreme Court explained that Section 804(d) of the Fair Housing Act states that it is unlawful for an individual or firm covered by the Act “[to] represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available,” 42 U. S. C. § 3604(d) (emphasis added), a prohibition made enforceable through the creation of an explicit cause of action in § 812(a) of the Act, 42 U. S. C. § 3612(a). Congress has thus conferred on all “persons” a legal right to truthful information about available housing.