03/02/2020 Fair Housing Council v. Roommate. Com, LLC, 666 F. 3d 1216 - Court of Appeals, 9th Circuit 2012 - Google Scholar So far so good: two organizations dedicated to combating housing discrimination have spent money combating housing discrimination. But according to the Fair Housing Councils and our precedent, these organizations were "injured" for standing purposes by the very expenses that advanced their mission. This raises a question that threatens to bring us loggerheads with Lujan: How can an organization have a legally protected interest in not spending money to advance its core mission? A The answer to this question is embedded in an illogical and erroneous development in our case law. We have correctly 1225 recognized that organizations have standing to sue on their own behalf when a *1225 defendant's actions impair the organization's ability to function as an organization. An action that invades an organization's interest in recruiting members, obtaining funding, or collecting dues clearly hinders that organization's ability to function, and is an injury for purposes of standing. See, e.g., Am. Fed'n. of Gov't Emps. Local 1 v. Stone, 502 F.3d 1027, 1033 (9th Cir.2007) ("[A]n increased difficulty in recruiting union members qualifies as a `concrete and demonstrable' injury"); Walker v. City of Lakewood, 272 F.3d 1114, 1124-25 (9th Cir.2001) (holding that an organization was injured by, among other things, delayed contractual payments and government client's non-renewal of the contract); Constr. Indus. Ass'n of Sonoma Cty. v. City of Petaluma, 522 F.2d 897, 903 (9th Cir.1975) (holding that a restrictive building plan injured an association of builders "in a very real sense" because it decreased construction and consequently, membership dues for the association). The Supreme Court has also held that an organization's ability to function as an organization is impaired if its purpose is to provide a specified type of service and a defendant's actions hinder the organization from providing that core service. Havens, 455 U.S. at 378-79, 102 S.Ct. 1114. In Havens, a fair housing organization alleged that its mission was to "assist equal access to housing through counseling and other referral services." Id. at 379, 102 S.Ct. 1114. The organization asserted that the defendant's discriminatory housing practices frustrated the organization's ability to "provide counseling and referral services for low- and moderate-income homeseekers." Id. The Court held that this allegation was sufficient for standing because it represented a "concrete and demonstrable injury to the organization's activities — with the consequent drain on the organizations's resources — [that was] far more than simply a setback to the organization's abstract social interests." Id. Based on this language in Havens, we developed a two-prong test: an organization can establish an injury if it can show "(1) frustration of its organizational mission; and (2) diversion of its resources to combat the [challenged actions]." Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir.2004). While our articulation of the test is consistent with Havens, our application of it has drifted away from the requirement that an organization actually suffer an injury. In Smith, for example, we considered whether an organization dedicated to "eliminat[ing] discrimination against individuals with disabilities by ensuring compliance with [accessibility] laws" had standing to sue a real estate developer who constructed properties with alleged design and construction defects that violated those laws. Id. at 1105. We held that because the organization's ultimate goal was to eliminate discrimination against individuals with disabilities, "[a]ny violation" of the relevant accessibility law constituted a frustration of the organization's mission. Id.; see also Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.2002) (holding that an organization's mission of promoting equal housing opportunities, as required by the FHA, was frustrated by the defendant's alleged FHA violations). We further held that the organization met the "diversion of resources" prong because the money it spent "in order to monitor the violations" diverted resources "from other efforts to promote awareness of — and compliance with — federal and state accessibility laws." Smith, 358 F.3d at 1105. Yet no allegations were made that this allocation of resources harmed the organization in any way. Id. Rather, all that our precedent required for diversion was that the organization spent resources that it 1226 *1226 "otherwise would spend in other ways." El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 748 (9th Cir.1991). Thus, we have held that an organization with a social interest in advancing enforcement of a law was injured when the organization spent money enforcing that law. This looks suspiciously like a harm that is simply "a setback to the organization's abstract social interests," the very thing Havens indicated was not a "concrete and demonstrable injury to the organization's activities." Havens, 455 U.S. at 379, 102 S.Ct. 1114; see also Sierra Club v. Morton, 405 U.S. 727, 738-39, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (holding that an organization's abstract interest in a problem, without direct harm, is insufficient to establish standing). After all, an organization created to advance enforcement of a law is not hampered in its mission because the law is violated: absent violations, the organization would have to find a new mission. Furthermore, the organization has no legally protected interest in keeping its budget allocation constant, especially in the face of new opportunities to advance its mission. New organizational undertakings by definition divert resources but, as shown below, nothing about such diversion is per se harmful. Smith's ruling to the contrary is in https://scholar.google.com/scholar_case?q=666+F.3d+1216+&hl=en&as_sdt=2006&case=16861526744379903290&scilh=0 6/8