December 9, 2015
from the United States District Court for the Eastern
District of Wisconsin. No. 12-C-216 - C.N. Clevert, Jr.,
Easterbrook and Hamilton, Circuit Judges, and Pallmeyer,
District Judge. [*]
Easterbrook, Circuit Judge.
Housing, a nonprofit corporation, offered low-income housing
to mentally disabled persons in Milwaukee County, Wisconsin.
Its principal lender, the Wisconsin Housing and Economic
Development Authority, filed a foreclosure action in state
court. Tri-Corp blamed many other persons and entities for
its financial problems and named several of them as
third-party defendants. The state judiciary allowed the
lender to foreclose and ruled against Tri-Corp on all of the
third-party claims except those against Robert Bauman, one of
Milwaukee's aldermen. Wisconsin Housing & Economic
Development Authority v. Tri Corp Housing, Inc., 2011
WI.App. 99. Bauman then removed to federal court what
remained of the case.
contends that Bauman is liable to it under 42 U.S.C.
§1983 for issuing statements and press releases critical
of its operations and for lobbying other officials to rule
against it in administrative proceedings. For example, in
2006 Bauman told the Board of Zoning Appeals that one of
Tri-Corp's facilities was "unfit for human
habitation". The next year, after a resident of that
facility was found dead in his room, Bauman sent an email to
Milwaukee's Department of Neighborhood Services asking it
to revoke the special-use permit under which the facility had
been operating. The Department did revoke the permit, but the
Board reinstated it. Bauman then criticized the Board to the
press as complicit in maintaining substandard facilities;
Bauman stated that Tri-Corp had "repeatedly demonstrated
that they are unwilling or unable to provide quality care to
… mentally disabled residents". We will assume,
for the purpose of this appeal, that Bauman persuaded the
Economic Development Authority to bring the foreclosure
action-though the Authority says that it had begun that
process on its own.
calls Bauman's statements and lobbying a form of
interference with its contracts and maintains that he
violated the Fair Housing Act, the Rehabilitation Act, and
the Americans with Disabilities Act. Its theory is that
Bauman's speeches and lobbying hurt Tri-Corp's
business and made the foreclosure more likely.
litigation based on those statutes invokes the private rights
of action created by those statutes, but Tri-Corp is
adamant that it is relying exclusively on §1983 and does
not seek the remedies those statutes provide. That cost it
the suit in the district court, which held that §1983
cannot be used to enforce any of these three statutes. 2014
U.S. Dist. Lexis 7734 (E.D. Wis. Jan. 22, 2014).
pressed Tri-Corp's lawyer at oral argument to tell us why
he disdains relief directly under these statutes. Counsel
lacked an answer with respect to the Fair Housing Act, which
creates remedies in favor of entities such as Tri-Corp that
supply housing to the poor or disabled, and authorizes suits
against governmental bodies and officials. See New West,
L.P. v. Joliet, 491 F.3d 717, 721 (7th Cir. 2007). A
claim directly under the Fair Housing Act would be superior
to one under §1983, which adds a state-action
requirement and the need to show, through the framework of
Maine v. Thi-boutot, 448 U.S. 1 (1980), that a
§1983 remedy is appropriate. We shall treat the Fair
Housing Act claim as one directly under the statute.
respect to the Rehabilitation Act and the Americans with
Disabilities Act, however, the reason for invoking §1983
is clearer. Those statutes authorize suits by disabled
persons against employers, places of public accommodation,
and some governmental bodies, but a city's alderman is
not in any of those categories. Unless §1983 can be used
to expand the categories of persons subject to suit under
those laws, and to allow a claim by a provider of services
rather than a disabled person, Tri-Corp is going nowhere.
Relying on decisions such as Blessing v. Freestone,
520 U.S. 329 (1997), and Rancho Palos Verdes v.
Abrams, 544 U.S. 113 (2005), the district court held
that §1983 cannot be used to override limitations
included in a federal statutory framework. See also, e.g.,
Armstrong v. Exceptional Child Center, Inc., 135
S.Ct. 1378 (2015) (claim cannot be based directly on the
Constitution's Supremacy Clause when Congress has adopted
a system that limits private enforcement to particular
courts of appeals have addressed this subject; all six come
out the same way as the district court. Ramirez-Senda v.
Puerto Rico, 528 F.3d 9, 13 n.3 (1st Cir. 2008) (ADA and
Rehabilitation Act); A.W. v. Jersey City Public
Schools, 486 F.3d 791, 803-06 (3d Cir. 2007) (en banc)
(Rehabilitation Act); Lollar v. Baker, 196 F.3d 603
(5th Cir. 1999) (Rehabilitation Act); Als-brook v.
Maumelle, 184 F.3d 999, 1010-12 (8th Cir. 1999) (en
banc) (ADA); Vinson v. Thomas, 288 F.3d 1145 (9th
Cir. 2002) (ADA and Rehabilitation Act); and Holbrook v.
Alpharetta, 112 F.3d 1522 (11th Cir. 1997) (ADA and
Rehabilitation Act), all hold that §1983 cannot be used
to alter the categories of persons potentially liable in
private actions under the Rehabilitation Act or the Americans
with Disabilities Act. We agree with those decisions.
Tri-Corp relies on Fitzgerald v. Barnstable School
Committee, 555 U.S. 246 (2009), which holds that
§1983 may be used to enforce Title IX of the Education
Amendments of 1972. But Title IX, the Court held, lacks a
comprehensive remedial scheme that could be displaced by the
use of §1983. The Rehabilitation Act and the Americans
with Disabilities Act, by contrast, specify in detail who may
be sued for damages, and using §1983 to override the
limits of those statutory lists is unwarranted.
leaves the Fair Housing Act. Although the parties disagree
about whether Tri-Corp, which concedes that it lacks a claim
under 42 U.S.C. §3604, might nonetheless have one under
42 U.S.C. §3617, the subject of Bloch v.
Frischholz, 587 F.3d 771 (7th Cir. 2009) (en banc), we
do not pursue that topic. For Tri-Corp does not allege that
Bauman himself denied it any right under the Act, or even was
a member of a public body that did so. Tri-Corp accuses
Bauman of speech, not action. And that's all the
officials such as aldermen enjoy the right of free speech
under the First Amendment, applied to the states through the
Fourteenth. Speech is a large part of any elected
official's job, in addition to being the means by which
the official gets elected (or re-elected). Teddy
Roosevelt called the presidency a "bully pulpit, "
and all public officials urge their constituents and other
public bodies to act in particular ways. They have every
right to do so, see Novoselsky v. Brown, No. 15-1609
(7th Cir. May 10, 2016), as long as they refrain from making
the kind of threats that the Supreme Court treats as subject
to control under the approach of Brandenburg v.
Ohio, 395 U.S. 444 (1969). See also Swetlik v.
Crawford, 738 F.3d 818, 829-30 (7th Cir. 2013)
(concurring opinion). That's why we held in Freedom
from Religion Foundation, Inc. v. Obama, 641 F.3d 803
(7th Cir. 2011), that the President is entitled to urge all
Americans to pray, even though the First Amendment disables
the government from requiring them to do so.
First Amendment prevents both state and federal governments
from controlling political speech. It would be most
surprising to find in the Fair Housing Act an attempt to
penalize political speech, and Tri-Corp does not contend that
the statute has any language doing so. The most one could say
is that after Texas Department of Housing and Community
Affairs v. Inclusive Communities Project, Inc., 135
S.Ct. 2507 (2015), which holds that two sections of the Fair
Housing Act authorize a mild form of review for disparate
impact, a litigant might contend that speech creating a
disparate impact should be treated the same as action. But
Inclusive Communities dealt with sections 804(a) and
805(a), 42 U.S.C. §§ 3604(a), 3605(a). Tri-Corp
does not seek relief under either of these sections.
not see in the Fair Housing Act any effort to displace the
Noerr-Pennington doctrine, which the Supreme Court
has treated as a mixture of statutory interpretation and
constitutional imperative. See Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961); United Mine Workers v. Pennington,
381 U.S. 657 (1965). Under the Noerr-Pennington
doctrine, speech and other efforts to influence governmental
activity cannot be the basis of legal penalties, unless the
proposal to the governmental body is a sham and the speech
itself imposes costs independent of what the governmental
body does-for example, a lawsuit designed to make the other