Ulibarri et al v. Denver, Colorado, The City and County of et al

Filing 352

ORDER denying 342 Motion to Clarify and Setting Deadlines for Additional Briefing. Order signed by Senior Judge Ortrie D. Smith on 12/22/11.(odslc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
DEBBIE ULIBARRI, et al.,
Plaintiffs,
vs.
CITY & COUNTY OF DENVER, et al.,
Defendants.

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Case No. 07-CV-1814-ODS

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR CLARIFICATION OF
OUTSTANDING ISSUES AND (2) DIRECTING PLAINTIFFS TO PROVIDE
ADDITIONAL BRIEFING ESTABLISHING JURISDICTION
Pending is Defendants’ Motion to Clarify. The motion (Doc. # 342) is denied.
Plaintiffs seek clarification (or, really, amendment) of the Court’s October 13,
2011, Order Addressing Outstanding Issues. In that Order, the Court concluded the
organizational Plaintiffs presently appear to have standing, that the organizational
Plaintiffs specifically may have associational standing to assert their members’ claims
for injunctive relief, and the issue can be raised at any time because standing is a
component of jurisdiction.
Plaintiffs’ position is that Judge Miller previously concluded they have
organizational standing – that is, standing by virtue of injuries they have suffered as an
organization. This is to be differentiated from associational standing, which bestows
standing to an organization for injuries suffered by its members. Plaintiffs insist
organizational standing exists if they have suffered an injury in fact and the challenged
conduct frustrates the organization’s purpose or causes it to devote resources to
identifying and countering the challenged practice. The Court adheres to its ruling,
which essentially is that a final conclusion cannot be made regarding the organizational
Plaintiffs’ standing.1

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Plaintiffs continue to complain that Defendants are raising new arguments
regarding standing. The Court wishes Plaintiffs would stop complaining: as the Court
has pointed out previously, standing is a jurisdictional concept and therefore can be

For their argument to succeed, the organizational Plaintiffs must be capable of
asserting a claim in their own right; that is, they must be within the zone of interest to be
protected by the statute. E.g., Lujan v. National Wildlife Federation, 497 U.S. 871, 883
(1990). In one of the cases relied upon by Plaintiffs, the Ninth Circuit recognized that an
organization may have standing in the circumstances described by the organizational
Plaintiffs, but only after concluding the statute’s protections extended to organizations
and associations. Smith v. Pacific Properties & Dev. Corp., 358 F.3d 1097, 1104-05
(9th Cir. 2004). In short, an organization does not have standing simply because it
opposes conduct that is contrary to law unless Congress has decreed that such an
organization is intended to be protected by the statute. Cf. Haitain Refugee Center v.
Gracey, 809 F.2d 794, 813-14 (D.C. Cir. 1987).
The Supreme Court’s holding in Havens v. Realty Corp. v. Coleman does not
dictate a different result. There, the Court held an organization had standing to sue
under the Fair Housing Act for interference with its mission. In reaching this conclusion,
the Court held Congress intended to extend standing under the statute to the full extent
permitted by Article III, meaning any injury in fact by a permitted plaintiff would satisfy
the standing requirement. Moreover, the statute was not limited to persons, so
organizations and entities were Congressionally-permitted grievants. 455 U.S. 363,
372-78 (1982). In contrast, the Americans with Disabilities Act (“ADA”) protects
qualified persons with disabilities, and provides remedies for aggrieved “persons.”
Organizations are not persons, and certainly cannot be said to have disabilities. Unlike
the statute analyzed in Smith, the Court finds nothing indicating Congress extended the
ADA’s protections to corporations or associations for “injuries suffered while opposing
violative conduct” – and, as the parties bringing the claims, it is the organizational
Plaintiffs’ burden to demonstrate a statutory basis for jurisdiction.2 Such a statute or

raised at any time. In fact, Defendants do not have to raise any arguments: the Court is
obligated to consider its own jurisdiction regardless of what the parties do, and therefore
can raise (or reconsider) the issue sua sponte.
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The Tenth Circuit’s decision in Tandy v. City of Wichita does not require a
different result. There, the Court of Appeals held Title II of the ADA confer standing to
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judicial holding may exist, but until it is presented to the Court by Plaintiffs the Court
cannot definitively conclude the organizational plaintiffs have organizational standing to
bring a claim for injuries allegedly suffered by Defendants’ alleged violations of the
ADA.3 The key to the inquiry involves analysis of the statutes invoked by Plaintiffs. For
instance, the Supreme Court has held a caucasian tenant has standing under the Fair
Housing Act to assert a claim premised on discrimination against African-Americans
because the discriminatory act deprives the tenant of his or her interest in living in a
diverse community. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209-11
(1972). That same argument was insufficient to support a claim under the Equal
Protection Clause, because the Constitution does not protect such interests and
“Congress may create a statutory right or entitlement the alleged deprivation of which
can confer standing to sue even where the plaintiff would have suffered no judicially
cognizable injury in the absence of the statute.” Warth v. Seldin, 422, U.S. 490, 514
(1975). Thus, those with standing under the Fair Housing Act do not necessarily have
standing under other statutes. Plaintiffs have not presented a sufficient analysis of the
ADA or the Rehabilitation Act to justify a conclusion that they have standing to present
their claims.
Setting these observations aside, the Court is not even convinced the
organizational Plaintiffs are really asserting organizational standing.4 Their claims arise
entirely from the individual Plaintiffs’ claims. Thus, despite the label they are ascribing

the outer limits of Article III, but did so in the context of analyzing the types of injuries
that a person with a disability could allege to support standing. The Court of Appeals
did not bestow standing on (1) non-persons or (2) persons without a disability. 380 F.3d
1277, 1285-88 (10th Cir. 2004).
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It should also be remembered that, assuming their other arguments prove to be
correct, the organizational Plaintiffs still must demonstrate they “suffered impairment” in
their role before gaining any judicial relief. Havens, 455 U.S. at 379 n.21.
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For that matter, the Court is not sure why Plaintiffs adamantly reject reliance on
associational standing, particularly given (1) that is probably the only path they have to
justify injunctive relief and (2) associational standing appears more readily satisfied than
organizational standing.
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to their jurisdictional invocation, in substance they are alleging they suffered damage
because of injuries to their members. The organization’s efforts to ferret out and
oppose discrimination does not appear to be within the zone of interest to be protected
by either the Rehabilitation Act or the ADA.
This leads to the Court’s final observation. The organizational Plaintiffs have
minimized the truly important part of the Court’s October 13 Order: there are no
independent claims asserted by CCDC or CAD. Even if an organization could assert a
claim for damages to itself under the ADA, it is axiomatic that the organization would
first have to establish that violations existed. Here, the only violations alleged in the
Second Amended Complaint are those alleged in the context of individual plaintiffs.
Some of those claims have been dismissed, and the Court will not recount here the
remaining claims. For present purposes it is only important to note that the existence
and extent of the organizational Plaintiffs’ relief depends entirely on the existence and
extent of the individual Plaintiffs’ success on their claims. In short, only the violations
alleged in the Second Amended Complaint (less those that have been resolved through
dismissal or summary judgment) are going to be litigated – and the organizational
Plaintiffs cannot prevail if the individual Plaintiffs do not. This is true notwithstanding
Plaintiffs’ position that “the Organizational Plaintiffs have independent claims based on
their organizational standing, [so] Plaintiffs expect that the violations established may go
beyond those of [the individual plaintiffs].” Plaintiffs’ Reply Suggestions at 6. In
addition, the only relief that could be obtained would have to be somehow related to the
violations actually suffered by the individual plaintiffs – and the Court has no idea what
relief those violations would justify for the organizational plaintiffs. The Court adheres to
its prior conclusion that “CCDC and CAD have asserted no claim for liability – and
hence, no claim for relief – independent of the individual [P]laintiffs’ claims.”
The Court’s prior conclusion stands: no definitive determination about the
organizational plaintiffs’ standing to pursue their claims will be made at this time. To aid
the Court in evaluating this issue, Plaintiffs shall submit additional briefing explaining the
basis for this Court jurisdiction in light of the issues noted earlier in this Order. Plaintiffs’

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submission shall be filed on or before February 1, 2012, and Defendants shall respond
on or before March 1, 2012.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 22, 2011

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