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• 9TH CIRCUIT COURT

ALEXANDRA WHITE, JOSEPH
DERINGER, and RICHARD GRAHAM,
Plaintiffs-Appellees-
Cross-Appellants,

v.

RUSSELL LEE, in his individual and
official capacities aka Bruce Lee;
Nos. 99-15098
LYNN TAMIYASU-LEE, as special
99-15109
administrator of the estate of
99-16033
Russell Bruce Lee; LAVERA
GILLESPIE, PAUL SMITH, ROBERT                         D.C. No.
ZUROWSKI, and JOHN PHILLIPS, in                       CV-95-01757-MHP
their individual and official
OPINION
capacities,
Defendants-Appellants-
Cross-Appellees,

and

ELIZABETH JULIAN, in her official
capacity,
Defendant-Cross-Appellee.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding

Argued and Submitted
July 10, 2000--San Francisco, California

Filed September 27, 2000

Before: William C. Canby, Jr., Stephen Reinhardt,
Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Reinhardt

_________________________________________________________________

COUNSEL

Robert M. Loeb, United States Department of Justice, Civil
Division, Washington, D.C., for the defendants-appellants/
cross-appellees.

Kenneth L. Marcus, Cooper, Carvin & Rosenthal, PLLC,
Washington, D.C., for the plaintiffs-appellees/cross-
appellants.

Margaret B. Demers, Sidley & Austin, Washington, D.C., for
amicus curiae National Fair Housing Alliance.

_________________________________________________________________
OPINION

REINHARDT, Circuit Judge:

This case involves the Fair Housing Act, 42 U.S.C.S 3601-
3631, and the First Amendment. On November 1, 1993 a
housing rights advocacy group filed an administrative com-
plaint with an office of the U.S. Department of Housing and
Urban Development (HUD) in San Francisco. The complaint
alleged that three neighbors in Berkeley opposed the conver-
sion of a motel into a multi-family housing unit because they
believed that the project would bring people into the neigh-
borhood who were mentally disabled or disabled through sub-
stance abuse. Upon receiving the complaint, the San
Francisco HUD office initiated an eight-month investigation
into the neighbors' activities and beliefs. During the course of
its investigation, HUD officials questioned the neighbors
under threat of subpoena about their views and public state-
ments regarding the challenged project; directed them to pro-
duce an array of documents and information, including all
involved parties' names, addresses, and telephone numbers
and all correspondence or other documents relating to their
efforts in opposition to the project; informed them and a
major metropolitan newspaper that they had violated the Fair
Housing Act; and advised them to accept a "conciliation pro-
posal" that required them to cease all litigation and the distri-
bution of "discriminatory" newsletters and flyers. The HUD
officials in San Francisco recommended finding that the
neighbors had violated the Fair Housing Act, but officials in
Washington ultimately concluded that no violation had
occurred and that the neighbors had engaged solely in activity
protected by the First Amendment.

The three Berkeley neighbors then filed this civil rights
action alleging that the investigation conducted by the HUD
officials in San Francisco violated their First Amendment
rights. The officials argue that they were required by the Fair
Housing Act to investigate whether the neighbors had filed a
lawsuit in state court with an unlawful discriminatory motive.
At the very least, they argue, they are entitled to qualified
immunity. The district court denied the officials' motion for
summary judgment on the issue of qualified immunity,
entered partial summary judgment in favor of the neighbors
on the issue of liability, and dismissed as moot the neighbors'
claim for declaratory and injunctive relief. Only the issue of
damages remains for trial.1 We affirm the district court in all
respects.

BACKGROUND

A. Statement of Facts

The following facts are undisputed.

1. The Parties

Plaintiffs Alexandra White, Joseph Deringer, and Richard
Graham are residents of Berkeley, California. White and Der-
inger are married to each other. Graham is their neighbor.

At all times relevant to this case, defendant Elizabeth Julian
was the assistant secretary of HUD for Fair Housing and
Equal Opportunity (FHEO). Defendant LaVera Gillespie was
the director of the Regional Office of FHEO in San Francisco
("the San Francisco Office"). Defendant Paul Smith was the
San Francisco Office's investigations branch chief. Defendant
Russell Bruce Lee (now deceased) was an investigator, and
defendant Robert Zurowski was an investigator-conciliator.
Defendant John Phillips was special assistant to the HUD
regional administrator.
2. Conversion of the Bel Air Motel

On May 12, 1992, a local nonprofit housing developer,
Resources for Community Development (RCD), applied for a
use permit from Berkeley's Zoning Adjustment Board. RCD
sought to convert the Bel Air Motel, a property on University
Avenue, to a multi-family housing unit for homeless persons.
The use permit required approval by both the Zoning Adjust-
ment Board and the Berkeley City Council.2 

The plaintiffs lived close to the Bel Air Motel and were
opposed to its proposed conversion. They expressed their
opposition in a variety of ways. They wrote to the Berkeley
City Council, spoke out before the Zoning Adjustment Board
and at other public meetings, and published a newsletter with
articles critical of the project. The front page of the February
1993 issue of the plaintiffs' newsletter, Flatland News, for
example, contained an article titled "City Forcing Bel Air
Project Down Our Throats." The plaintiffs discussed their
opposition to the project with the local press and attempted to
persuade merchants on University Avenue to oppose the Bel
Air project also.

The Zoning Adjustment Board granted RCD its use permit
on October 1, 1992. An appeal to the Berkeley City Council
failed, by a 4-4 vote, in April 1993. That same month, a coali-
tion in which plaintiffs were involved ("the Coalition of
Neighborhood Groups Opposing the Bel Air Conversion")
filed a lawsuit against Berkeley and RCD in state court. Plain-
tiff White verified the complaint. It alleged that one of the
Zoning Adjustment Board's members, Linda Maio, was also
a member of RCD's board and, because of this conflict of
interest, improperly participated in the Zoning Adjustment
Board's hearings. On April 19, the coalition moved for a pre-
liminary injunction to prevent the issuance of an effective use
permit. The Alameda County Superior Court denied the
motion and set the case for trial on November 15, 1993.
Although RCD's use permit became effective in May 1993,
the developer thereafter experienced difficulty obtaining
promised funds for the project from Berkeley and had to seek
repeated extensions from other funders.

The Superior Court entered final judgment against the
plaintiffs' coalition on February 3, 1994.

3. HRI's Complaint to HUD

Marianne Lawless (now deceased) was the executive direc-
tor of Housing Rights, Inc. ("HRI"), a Berkeley housing rights
advocacy group. She had testified at a hearing in support of
the Bel Air project. On October 15, 1993, Lawless wrote a let-
ter to the San Francisco Office stating her intention to file a
HUD administrative complaint against the plaintiffs. Lawless
attached a letter dated October 12 from the executive director
of RCD to the Housing and Civil Enforcement Section of the
Department of Justice complaining about the plaintiffs' oppo-
sition to the Bel Air project.3 Lawless also attached several
flyers and other documents which, she stated, "demonstrate
the discriminatory scare tactics used by the opponents."4

A HUD complaint intake analyst in the San Francisco
Office (not a defendant here) spoke with Lawless about her
complaint. The analyst wrote in a memorandum that "Ms.
Lawless stated that these named residents, also known as the
`Coalition of Neighborhood Group Opposing RCD Plan for
the Bel-Air Conversion[,]' is [sic] a very vocal group who
stand firm in their belief that the homeless persons moving
into the area will be undesirables who are mentally disabled
or disabled through substance abuse."

The analyst concluded that HUD had jurisdiction and
should accept Lawless's complaint for processing, and a
supervisor concurred. On October 26, the intake analyst
drafted an administrative complaint against the plaintiffs on
Form HUD-903. Boxes on the form were checked indicating
that HRI had been "[i]ntimidated, interfered[with], or coerced
. . . to keep [HRI] from the full benefit of the Federal Housing
Law" and that the plaintiffs had engaged in discrimination on
the basis of mental handicap. The complaint included the fol-
lowing statement written on HRI's behalf:
        We are a fair housing agency in the city of Berke-
       ley. As such, one of our missions is to ensure equal
       opportunities for all persons. The above named
       respondents have impaired our ability to ensure
       equal housing by impeding the proposed conversion
       of the Bel Air Motel to permanently house low-
       income homeless persons. One of their principal
       arguments against this project is that it will benefit
       people that are diagnosed as mentally disabled or
       disabled through substance abuse. Although the
       respondents unsuccessfully attempted to obtain a
       preliminary injunction against the developer acquir-
       ing a use permit, they have been given a trial date for
       November 15, 1993. We believe the above named
       individuals are blocking the proposed project
       because they perceive the primary residents of the
       facility will be the mentally disabled or the disabled
       through substance abuse.

The San Francisco Office sent this draft complaint to Lawless,
she signed it, and the complaint was filed on November 1,
1993.

4. The San Francisco Office's Investigation 

In early November 1993, the San Francisco Office sent let-
ters to White, Deringer, and Graham. The office enclosed
HRI's complaint and stated that the plaintiffs could file an
answer within ten days. HUD, the letters stated, would "com-
mence an investigation of this complaint, and simultaneously
encourage all parties involved to conciliate the matter." If
conciliation failed and HUD's investigation produced "evi-
dence to substantiate a finding that there is reasonable cause
to believe that you have engaged in an unlawful discrimina-
tory housing practice," HUD would issue a charge against
them, at which point they would be exposed to certain penal-
ties -- including damages as great as $100,000 -- and could
elect to have their case heard by an administrative law judge
or referred for trial in U.S. District Court.5 The plaintiffs filed
answers to the complaint on November 12.

Defendant Smith assigned the complaint to defendant Lee
to investigate and defendant Zurowski to conciliate. On
December 17, 1993, Lawless sent Zurowski a "Proposal for
Conciliation" containing the following settlement terms:

       1) That the above named respondents [White, Der-
       inger, and Graham], and the Neighborhood Groups
       Opposing the Bel Air Conversion, cease all litigation
       against Resources for Community Development and
       the City of Berkeley regarding the development of
       the Bel Air Motel; and

       2) That the above named respondents, and the
       Neighborhood Groups Opposing the Bel Air Conver-
       sion, cease publication of discriminatory statements
       (including articles in the CNA Newsletter) and fliers
       about the potential residents of the Bel Air project.

Zurowski relayed these proposed terms to the plaintiffs.
According to a declaration by the attorney then representing
the plaintiffs, David Bryden, Zurowski told him "that the pro-
posed settlement was a good one because my clients had, in
fact, engaged in discriminatory actions in violation of the Fair
Housing Act -- I recall him telling me that HUD had evi-
dence of a flyer which demonstrated such a violation -- and
that I should be relieved that my clients would not also have
to pay damages to the complainant."6 

On January 12, 1994, Lee drafted and Smith reviewed and
signed, on behalf of the San Francisco Office's compliance
director, a letter to the three plaintiffs. It stated that the San
Francisco Office was investigating HRI's complaint and that
it was HUD policy "to secure the voluntary cooperation of all
persons in the collection of information during the investiga-
tion." The letter continued:

        When access to premises, records, documents,
       individuals and other possible sources of information
       and evidence which may be necessary for the fur-
       therance of the investigation is not provided, the
       Department may issue subpoenas to compel such
       access, production or testimony. Any person who
       willfully fails or neglects to attend and testify or to
       answer any lawful inquiry or to produce records,
       documents or other evidence in obedience to a sub-
       poena "shall be fined not more than $100,000 or
       imprisoned not more than one year, or both."

Attached to the letter was an "Attachment of Request to Pro-
duce Written Responses" listing ten items. This request was
extremely broad. It directed the plaintiffs to submit, inter alia,
the name and contact information of any person "who was
involved in or witnessed the act(s) alleged on the complaint
form"; "a copy of any documents or the contents of any file
in your control concerning the Bel Air Motel conversion"; all
correspondence with or minutes or reports generated by the
Council of Neighborhoods Association regarding the Bel Air
project; and all literature, posters, newsletters, and flyers
about the project. On January 18, the plaintiffs, through their
attorney, stated that they did not have some of the documents
sought and that they refused to provide the others. HUD did
not take any further action to obtain these documents from the
plaintiffs.

On February 1, Smith told the plaintiffs' attorney Bryden
that HUD would issue a subpoena to compel the plaintiffs'
testimony if they refused to be interviewed by Lee. Bryden
agreed that Lee could interview the plaintiffs by telephone.
The interview took place on February 7 and lasted for about
one hour. Lee asked the plaintiffs why they were opposed to
the Bel Air project and what statements they had made about
the project to the public. Lee later testified in a deposition that
Smith had directed him to ask the plaintiffs these questions,
which Lee had considered irregular and beyond the scope of
a routine FHA investigation.

On February 8, pursuant to Lee's request, Bryden sent Lee
a memorandum from the Berkeley City Manager stating that
Zoning Adjustment Board member Linda Maio had a conflict
of interest on the RCD matter. Sometime during the investiga-
tion, Smith also became aware that there was reason to
believe that Maio had a conflict of interest.

The Fair Housing Act requires HUD to provide a written
statement of reasons in the event that it is "impracticable" to
complete an investigation within 100 days. See 42 U.S.C.
SS 3610(a)(1)(B)(iv), 3610(a)(1)(C). On February 10, Bryden
called Lee to inquire about the status of the investigation. On
February 15, the Director of HUD's Office of Investigations
in Washington, D.C. informed HRI and the plaintiffs by letter
that although the processing of the administrative complaint
was not yet complete, HUD was "expediting this matter."
However, the San Francisco Office's final investigative report
shows that the investigators' first contact with a witness other
than the plaintiffs was on May 17, 1994, an interview with the
executive director of RCD. All other contacts with witnesses
took place in mid-June 1994.

On June 24, Bryden wrote a letter asserting that HUD's
investigation was an effort to chill the plaintiffs' constitu-
tional rights. He asked that the investigation be terminated.
Smith drafted a letter in response, which defendant Gillespie
signed on July 14. This letter stated that "numerous court
opinions" had established HUD's jurisdiction over the case:

        The Department has jurisdiction over all claims
       under the federal Fair Housing Act concerning land
       use and zoning. This jurisdiction has been recog-
       nized uniformly to extend to allegations that individ-
       uals have engaged in speech advocating illegal acts,
       including discrimination against persons based on
       their physical or mental disabilities.

        The Complainant in the above case alleged that
       your clients advocated the denial by the City of
       Berkeley of a use permit to a nonprofit housing
       developer for the conversion of the Bel Air Motel to
       a homeless shelter because, among other reasons, the
       residents of the project would be mentally disabled.
       Evidence was produced during the investigation that
       your clients wrote news articles which referenced the
       mental disability of the intended residents of the pro-
       posed project as a reason for denial of the project.

The letter further stated that HRI had suffered an injury suffi-
cient to establish its standing to pursue relief under the Fair
Housing Act because its director, Lawless, "devoted time and
resources to advocating on behalf of the developer of the Bel
Air project, in opposition to your clients."

Lee submitted a draft of the final investigative report to
Smith on June 17, 1994. After further revisions by Smith and
review by Gillespie, the San Francisco Office adopted the
report and, on July 11, sent it and the entire case file to HUD
headquarters in Washington. The report concluded that the
plaintiffs had violated the Fair Housing Act and that there was
reasonable cause to take further enforcement action against
them. On July 22, 1994, the San Francisco Examiner reported
that defendant Phillips had said "that HUD's preliminary
investigation had concluded the three residents[White, Der-
inger, and Graham] had broken the law, but that it would be
up to HUD and Justice Department attorneys to decide
whether to prosecute."

5. Disposition of HRI's Complaint

For approximately two weeks Sara Pratt, the director of
HUD's Office of Investigations in Washington, reviewed
HRI's complaint and the San Francisco Office's report and
case file. Finding that the file contained "little if any" infor-
mation on the state-court lawsuit filed by the plaintiffs' orga-
nization, Pratt asked the San Francisco Office to obtain
documents and information regarding that action. Upon
receiving these materials, Pratt determined that the Alameda
County Superior Court had in fact found that Linda Maio's
simultaneous service on the Zoning Adjustment Board and
RCD's board constituted a conflict of interest that violated a
Berkeley ordinance. The court, however, had "found no viola-
tion of state law requiring invalidation of the use permit, and
considered the good faith of the zoning board member in
doing so." Pratt concluded:

       [A]t the time the complaint was filed, on November
       1, 1993, the lawsuit presented material questions of
       fact and/or of law and was not clearly frivolous.
       Moreover, the state court decision in the case,
       entered in February 1994, indicated that the lawsuit
       was premised on a reasonable basis in fact or in law
       (that is, that it stated a violation of a local ordinance)
       and, but for the "good faith" exception contained in
       state law, would have constituted a successful legal
       claim. The respondents' actions in instituting and
       prosecuting a lawsuit are thus protected by the First
       Amendment.

Pratt also concluded that the plaintiffs' distribution of flyers
and newsletters and lobbying of public officials were activi-
ties protected by the First Amendment and did not constitute
a violation of the Fair Housing Act. HUD issued a "Determi-
nation of No Reasonable Cause" on August 16, 1994.

B. Proceedings Below

The plaintiffs filed their complaint in May 1995. They
alleged that defendants Gillespie, Smith, Lee, Zurowski, and
Phillips investigated and harassed them solely because of the
exercise of their First Amendment rights to free speech and to
petition the government for a redress of grievances. The plain-
tiffs sued these defendants in their official and individual
capacities, pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
requested declaratory and injunctive relief, damages, and
attorneys' fees. They sued defendant Julian only in her offi-
cial capacity, for declaratory and injunctive relief.

The HUD officials initially moved to dismiss the com-
plaint. Ultimately, the court refused to do so, except for the
claim for prospective relief. With respect to that claim, the
district court first found that while the plaintiffs were not cur-
rently under investigation by HUD, they had sufficiently
alleged "that they are engaging or will in the future likely
engage in activities similar to those that precipitated the HUD
investigation in this case." However, because HUD had
implemented and memorialized a new policy prohibiting
agency investigations into protected First Amendment activity
and the plaintiffs had not alleged any specific objectionable
conduct occurring after the implementation of that policy, the
district court concluded that there was no live controversy
under Article III. Accordingly, pursuant to Federal Rule of
Civil Procedure 12(b)(1), it dismissed the plaintiffs' claim for
prospective relief as moot.

After discovery, the parties filed cross-motions for sum-
mary judgment. All five officials sued in their individual
capacities argued that they were entitled to qualified immu-
nity. Defendant Lee also moved for summary judgment on the
ground that the plaintiffs had failed to establish his liability
for any violation of the First Amendment. For their part, the
plaintiffs moved for partial summary judgment against Lee,
Smith, Zurowski, and Gillespie on the issue of liability. On
December 18, 1998, the district court denied the defendants'
motions and granted the motion of the plaintiffs. 7

The defendants filed timely notices of appeal. Pursuant to
Federal Rule of Civil Procedure 54(b), the district court
granted the plaintiffs' motion, consented to by the defendants,
to certify for appeal as a final judgment the court's August
1996 dismissal of their claim for injunctive and declaratory
relief. The plaintiffs then filed a timely cross-appeal.

ANALYSIS

We consider, in turn, (1) the HUD officials' appeal of the
district court's denial of their motion for summary judgment
on the ground of qualified immunity, (2) the officials' appeal
of the entry of partial summary judgment on the issue of lia-
bility, and (3) the plaintiffs' appeal of the dismissal of their
claim for prospective relief.
I. DENIAL OF QUALIFIED IMMUNITY

A. Jurisdiction

Although the denial of a summary judgment motion is not
ordinarily appealable, this court has jurisdiction to review an
order denying a government official summary judgment on
the ground of qualified immunity. Schwenk v. Hartford, 204
F.3d 1187, 1195 (9th Cir. 2000) (citing Behrens v. Pelletier,
516 U.S. 299, 312  (1996)). "Our jurisdiction in such cases,
however, is limited to questions of law; it does not extend to
claims in which the determination of qualified immunity
depends upon disputed issues of material fact." Id. (citing
Johnson v. Jones, 515 U.S. 304, 319  (1995); Knox v. South-
west Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997)). This
court reviews de novo the denial of a motion for summary
judgment on the ground of qualified immunity. Katz v. United
States, 194 F.3d 962, 966 (9th Cir. 1999) (citing Knox, 124
F.3d at 1105), petition for cert. filed, 68 U.S.L.W. 3774 (U.S.
June 8, 2000) (No. 99-1977); Calabretta v. Floyd , 189 F.3d
808, 812 (9th Cir. 1999). Here, the material facts are not in
dispute, and the issues involve only questions of law. Thus,
we have jurisdiction over the qualified immunity appeal.

B. Have the Plaintiffs Stated a First Amendment
       Claim?

[1] The Supreme Court has held that, in analyzing the
defense of qualified immunity, courts must decide first
whether the plaintiff has stated a proper claim for a violation
of a right, then whether the right at issue was "clearly estab-
lished" at the time the alleged violation occurred. Wilson v.
Layne, 526 U.S. 603, 609  (1999); Conn v. Gabbert, 526 U.S.
286, 290 (1999); see also Schwenk, 204 F.3d at 1196; Knox,
124 F.3d at 1107. Accordingly, we begin by addressing the
merits of the plaintiffs' First Amendment claim.

1. The Plaintiffs' First Amendment Activity and the
       Defendants' Chilling Conduct

[2] Although the HUD officials frame this case in terms of
a complex doctrinal debate involving Noerr-Pennington
immunity and its labor law permutation, we find it to be, at
heart, quite simple. In opposing their local government's
approval of the Bel Air project, White, Deringer, and Graham
engaged in activity paradigmatically protected by the First
Amendment. The HUD officials' eight-month investigation
into the plaintiffs' activities and beliefs chilled the exercise of
their First Amendment rights. The plaintiffs are entitled to
seek a remedy for this constitutional violation.

a. The Speech

[3] The First Amendment provides that "Congress shall
make no law . . . abridging the freedom of speech, or of the
press . . . ." Here, the plaintiffs wrote and distributed flyers
and published a newsletter in the advocacy of a politically
controversial viewpoint -- "the essence of First Amendment
expression." See McIntyre v. Ohio Elections Comm'n, 514
U.S. 334, 347 (1995) (citations omitted); see also Mills v. Ala-
bama, 384 U.S. 214, 219  (1966) ("The Constitution specifi-
cally selected the press, which includes not only newspapers,
books, and magazines, but also humble leaflets and circulars,
to play an important role in the discussion of public affairs.")
(citation omitted). They organized and participated in a coali-
tion of neighbors who shared their views, admirable or not.
Roberts v. United States Jaycees, 468 U.S. 609, 622  (1984)
("[I]mplicit in the right to engage in activities protected by the
First Amendment [is] a corresponding right to associate with
others in pursuit of a wide variety of political, social, eco-
nomic, educational, religious, and cultural ends.") (citations
omitted); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
460 (1958) (describing as "beyond debate" that freedom of
speech encompasses "freedom to engage in association for the
advancement of beliefs and ideas") (citations omitted). The
right to expressive association includes the right to pursue, as
a group, discriminatory policies that are antithetical to the
concept of equality for all persons. See Boy Scouts of America
v. Dale, _______ U.S. _______, _______, 120 S. Ct. 2446, 2457-58 (2000).

[4] The First Amendment also guarantees the right "to peti-
tion the Government for a redress of grievances. " The plain-
tiffs exercised this right by attending and speaking out at
Zoning Adjustment Board hearings and by challenging in the
courts the board's decision to grant a use permit for the Bel
Air project. See, e.g., Christian Gospel Church, Inc. v. City &
County of San Francisco, 896 F.2d 1221, 1226 (9th Cir. 1990)
(neighbors who opposed zoning permit application by church
"by circulating a petition, testifying before the Planning Com-
mission and writing letters to the editor" were "fully protected
by the first amendment"); Evers v. County of Custer, 745 F.2d
1196, 1204 (9th Cir. 1984) (activity of property owners who
urged county officials not to close what they believed was
public road "falls within the first amendment's protection of
the right to petition the government for redress of griev-
ances") (citing Eastern R.R. Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127 (1961)). Regardless of what
we might think of their objectives, the plaintiffs "were doing
what citizens should be encouraged to do, taking an active
role in the decisions of government." Christian Gospel
Church, 896 F.2d at 1226.

It is important to emphasize that a person's speech or peti-
tioning activity is not removed from the ambit of First
Amendment protection simply because it advocates an unlaw-
ful act. The First Amendment does not permit government "to
forbid or proscribe advocacy of the use of force or of law vio-
lation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio, 395 U.S. 444,
447 (1969); see also NAACP v. Claiborne Hardware Co., 458
U.S. 886, 928 (1982); Noto v. United States, 367 U.S. 290,
291 (1961); Yates v. United States, 354 U.S. 298, 318  (1957)
overruled in part on other grounds by Burks v. United States,
437 U.S. 1, 7, 12 (1978). Advocacy is unprotected only if it
is "intended to produce, and likely to produce, imminent dis-
order"; "advocacy of illegal action at some indefinite future
time" is not actionable. Hess v. Indiana, 414 U.S. 105, 108-09
(1973).

It is clear that the term "advocacy," as used in Branden-
burg, encompasses not only freedom of speech, but the other
rights of expression guaranteed by the First Amendment as
well. Brandenburg specifically held that"[s]tatutes affecting
the right of assembly, like those touching on freedom of
speech, must observe the established distinctions between
mere advocacy and incitement to imminent lawless action."
395 U.S. at 449 n.4. See also Communist Party of Indiana v.
Whitcomb, 414 U.S. 441, 448 -50 (1974) (applying Branden-
burg principles to state regulation of access to the ballot). The
Supreme Court has also explained that the right to petition is
"inseparable" from and "was inspired by the same ideals of
liberty and democracy that gave us the freedoms to speak,
publish, and assemble." McDonald v. Smith, 472 U.S. 479,
485 (1985) (citations omitted).

We need not decide whether the plaintiffs' primary objec-
tive -- the defeat of the proposed conversion of the Bel Air
motel -- would have involved an unlawful act. The mere fact
that citizens urge their government to adopt measures that
may be unlawful does not deprive the speech involved of its
First Amendment protection. Cf. Manistee Town Ctr. v. City
of Glendale, No. 99-16328, _______ F.3d. _______ (9th Cir. Sept. _______,
2000) (affirming dismissal under Noerr-Pennington doctrine
of complaint challenging lobbying of county officials that
allegedly resulted in unconstitutional taking of plaintiff's
property). Here, it is clear that nothing that the plaintiffs said
or did came close to meeting the Brandenburg test. "Immi-
nent lawless action," as used in Brandenburg , means violence
or physical disorder in the nature of a riot. Peaceful speech,
even speech that urges civil disobedience, is fully protected
by the First Amendment. Were this not the case, the right of
Americans to speak out peacefully on issues and to petition
their government would be sharply circumscribed. We there-
fore hold that the standard set forth in Brandenburg applies to
all the First Amendment activity at issue in this case, includ-
ing plaintiffs' petitioning activity, regardless of whether the
denial of the permit on the grounds urged would have been
contrary to the provisions of the Fair Housing Act.

b. The Chill

[5] The investigation by the HUD officials unquestionably
chilled the plaintiffs' exercise of their First Amendment
rights. It is true that the agency did not ban or seize the plain-
tiffs' materials, and officials in Washington ultimately
decided not to pursue either criminal or civil sanctions against
them. But in the First Amendment context, courts must "look
through forms to the substance" of government conduct. Ban-
tam Books, Inc. v. Sullivan, 372 U.S. 58, 67  (1963). Informal
measures, such as "the threat of invoking legal sanctions and
other means of coercion, persuasion, and intimidation," can
violate the First Amendment also. Id.8 This court has held that
government officials violate this provision when their acts
"would chill or silence a person of ordinary firmness from
future First Amendment activities." Mendocino Environmen-
tal Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.
1999) (citation omitted). Here, the type of investigation con-
ducted and the manner in which the individual defendants car-
ried out their functions more than meets that standard.
The HUD officials carried out an investigation that lasted
more than eight months, substantially longer than the pre-
sumptive 100-day time limit set by 42 U.S.C. S 3610(a)(1)
(B)(iv). During the investigation, defendant Zurowski con-
veyed a conciliation proposal requiring the plaintiffs to cease
all litigation and publications regarding the Bel Air project
and advised the plaintiffs to accept it because they had vio-
lated the Fair Housing Act by distributing "discriminatory"
flyers. Defendants Lee and Smith directed the plaintiffs under
threat of subpoena to produce all their publications regarding
the Bel Air project, minutes of relevant meetings, correspon-
dence with other organizations, and the names, addresses, and
telephone numbers of persons who were involved in or had
witnessed the alleged discriminatory conduct.9 Smith interro-
gated the plaintiffs, again under threat of subpoena, about
their views and public statements in opposition to the Bel Air
project. In a letter drafted by Smith, defendant Gillespie
asserted HUD's purported authority to investigate "allegations
that individuals have engaged in speech advocating illegal
acts, including discrimination against persons based on their
physical or mental disabilities" and stated that the plaintiffs
had violated the Fair Housing Act by writing "news articles
which referenced the mental disability of the intended resi-
dents of the proposed project as a reason for denial of the
project." Defendant Phillips told a major metropolitan news-
paper that the plaintiffs had "broken the law."10 We conclude
that these actions would have chilled or silenced a person of
ordinary firmness from engaging in future First Amendment
activities.
2. The FHA as a Justification

[6] The HUD officials argue that their actions constituted
lawful efforts to enforce the Fair Housing Act (FHA). The
purpose of that statute is "to provide, within constitutional
limitations, for fair housing throughout the United States." 42
U.S.C. S 3601. The FHA prohibits, among other things, own-
ers and landlords from refusing to sell or rent housing because
of race, color, religion, sex, handicap, familial status, or
national origin. See id. at S 3604. 11 The FHA also makes it
unlawful "to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of . . . any right granted
or protected by section 3603, 3604, 3605, or 3606 of this
title." Id. at SS 3617, 3602(f). A violation of this provision is
considered a "discriminatory housing practice " for which an
"aggrieved person" may file an administrative complaint with
HUD. Id. at S 3610(a)(1)(A)(i). If this occurs, HUD must
serve notices upon the complainant12 and the respondents13
and "make an investigation of the alleged discriminatory
housing practice and complete such investigation within 100
days after the filing of the complaint . . . unless it is impracti-
cable to do so." Id. at S 3610(a)(1)(B)(iv).
We have applied S 3617 broadly to cover a variety of prac-
tices that have the effect of interfering with the exercise of
fair housing rights protected by the FHA. See United States
v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994)
(" `Interference' ranges from racially motivated firebombings,
to exclusionary zoning, and insurance redlining.") (citations
omitted). In theory, S 3617 could be interpreted even more
broadly, so that a wide range of speech regarding the housing
rights of others could be investigated and sanctioned. One
person's persuasive editorial on a zoning dispute, for instance,
might well "interfere" with another person's ability to secure
housing. So construed, however, S 3617 would quickly run
afoul of the First Amendment principles discussed above.

[7] For this reason, other courts have recognized that a
speaker's advocacy of his views, however "ill-advised, unin-
formed, and even distasteful," can amount to a violation of
S 3617 of the FHA only in the event that the advocacy is
directed to inciting or producing imminent violence and is
likely in fact to do so. We agree. See Michigan Protection &
Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 720 (E.D.
Mich. 1992), aff'd, 18 F.3d 337 (6th Cir. 1994); see also
United States v. Wagner, No. 3:94-CV-2540-H, 1995 WL
841924, at *5 (N.D. Tex. Dec. 11, 1995) ("[T]he Pines have
not presented evidence that the petitioning activities were
likely to incite imminent lawless action, despite the overtones
of the leaflets.") (citing Brandenburg, 395 U.S. at 447).
Threats of violence and other forms of coercion and intimida-
tion directed against individuals or groups are, however, not
advocacy, and are subject to regulation or prohibition. See
United States v. Gilbert, 813 F.2d 1523, 1529-30 (9th Cir.
1987) (holding that criminal prosecution under FHA of person
who mailed letters and flyers threatening to murder whites
who aided blacks and other minorities was not precluded by
First Amendment). In this case, no such acts were alleged.

[8] Although the HUD officials now concede that the plain-
tiffs' "protest activities of writing newspaper articles, leaflet-
ing, etc., [were], of course, constitutionally protected forms of
speech," they suggest parenthetically in their brief that their
investigation was necessary to determine whether the flyers
distributed by the plaintiffs involved an incitement to immi-
nent lawless action. This suggestion is not supported by the
record. HRI executive director Lawless sent a letter to the San
Francisco Office that enclosed the relevant flyers two weeks
before she signed the complaint. The officials did not need to
gather additional information before determining whether
these flyers incited imminent lawless action or not. That the
First Amendment protected the authors and distributors of the
flyers was plain.

3. The Plaintiffs' Lawsuit as a Justification 

In attempting to justify their eight-month investigation, the
HUD officials rely mainly on the lawsuit filed by the plain-
tiffs' neighborhood coalition in April 1993. An unsuccessful
state-court lawsuit, the officials argue, can violate the FHA if
it is filed with a discriminatory motive; their theory is essen-
tially that the First Amendment does not protect litigants who
lose. Because the state court denied the plaintiffs their
requested relief in February 1994, the HUD officials maintain
that, after HRI filed its complaint in November 1993, they
were entitled to investigate the plaintiffs' speech in opposition
to the Bel Air project to determine whether they had filed
their suit with an unlawful discriminatory motive. Cf. Wiscon-
sin v. Mitchell, 508 U.S. 476, 489  (1993). In making this
argument, the officials rely principally on Bill Johnson's Res-
taurants, Inc. v. NLRB, 461 U.S. 731 (1983), and Diamond
Walnut Growers, Inc. v. NLRB, 53 F.3d 1085 (9th Cir. 1995),
two cases we discuss below.

[9] In dissecting the serious flaws in the officials' argu-
ment, it is necessary to examine carefully the protection that
the First Amendment affords to individuals who petition the
government for redress of grievances through the courts. In
the end, however, we conclude that whether or not the HUD
officials had the right to conduct a limited investigation at the
outset, and whether or not in some circumstances a lawsuit
may be stripped of its First Amendment protection simply
because the plaintiffs fail to prevail on the merits, the investi-
gation that the HUD officials conducted exceeded the bounds
of reasonable governmental action and violated the plaintiffs'
First Amendment rights.

a. Noerr-Pennington immunity

The Supreme Court has described the right to petition as
"among the most precious of the liberties safeguarded by the
Bill of Rights" and "intimately connected, both in origin and
in purpose, with the other First Amendment rights of free
speech and free press." United Mine Workers, Dist. 12 v. Illi-
nois State Bar Ass'n, 389 U.S. 217, 222  (1967). It is "cut from
the same cloth as the other guarantees of [the First] Amend-
ment, and is an assurance of a particular freedom of expres-
sion." McDonald v. Smith, 472 U.S. at 482.

The Court has further established that the right to petition
extends to all departments of the government, including the
executive department, the legislature, agencies, and the
courts. California Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 510  (1972). California Motor Transport
involved Noerr-Pennington immunity, a doctrine initially pro-
mulgated "to protect efforts to influence legislative or execu-
tive action from liability under the Sherman Act. " Oregon
Natural Resources Council v. Mohla, 944 F.2d 531, 533 (9th
Cir. 1991) (citing Noerr, 365 U.S. 127; United Mine Workers
v. Pennington, 381 U.S. 657 (1965)). While the Noerr-
Pennington doctrine originally arose in the antitrust context,
it is based on and implements the First Amendment right to
petition and therefore, with one exception we discuss infra
(see Section I.B.3.b), applies equally in all contexts. See Man-
istee Town Ctr., _______ F.3d. at _______ ("The immunity is no longer
limited to the antitrust context . . . .") (citing Boulware v.
Nevada Dep't of Human Resources, 960 F.2d 793, 800 (9th
Cir. 1992); Evers v. County of Custer, 745 F.2d at 1204));
ONRC v. Mohla, 944 F.2d at 533-34 ("The protection has
been expanded to apply to petitions to courts and administra-
tive agencies, as well as to preclude claims other than those
brought under the antitrust laws.") (citations omitted).

[10] The Noerr-Pennington doctrine ensures that those who
petition the government for redress of grievances remain
immune from liability for statutory violations, notwithstand-
ing the fact that their activity might otherwise be proscribed
by the statute involved. See Professional Real Estate Inves-
tors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56
(1993). Noerr-Pennington is a label for a form of First
Amendment protection; to say that one does not have Noerr-
Pennington immunity is to conclude that one's petitioning
activity is unprotected by the First Amendment. 14 With
respect to petitions brought in the courts, the Supreme Court
has held that a lawsuit is unprotected only if it is a "sham" --
i.e., "objectively baseless in the sense that no reasonable liti-
gant could realistically expect success on the merits." Id. at
60. See also California Motor Transp., 404 U.S. at 513 (stat-
ing that First Amendment protection would not extend to "a
pattern of baseless, repetitive claims . . . [that lead] the fact-
finder to conclude that the administrative and judicial pro-
cesses have been abused").

[11] In Professional Real Estate Investors, the Supreme
Court rejected the contention that regardless of a lawsuit's
objective merit an antitrust defendant can be found liable if
the plaintiff showed that it brought the suit for a "predatory
motive." See 508 U.S. at 55-56. Both requirements must be
met to establish antitrust liability: "an objectively reasonable
effort to litigate cannot be sham regardless of subjective
intent." Id. at 57. Furthermore, proof of a lawsuit's objective
baselessness is the "threshold prerequisite": a court may not
even consider the defendant's allegedly illegal objective
unless it first determines that his lawsuit was objectively base-
less. Id. at 55, 60-61.

The fact that a litigant loses his case does not show that his
lawsuit was objectively baseless for purposes of Noerr-
Pennington immunity:

       A winning lawsuit is by definition a reasonable
       effort at petitioning for redress and therefore not a
       sham. On the other hand, when the antitrust defen-
       dant has lost the underlying litigation, a court must
       "resist the understandable temptation to engage in
       post hoc reasoning by concluding" that an ultimately
       unsuccessful "action must have been unreasonable or
       without foundation." Christiansburg Garment Co. v.
       EEOC, 434 U.S. 412, 421 -22 (1978)). Accord
       Hughes v. Rowe, 449 U.S. 5, 14 -15 (1980) (per
       curiam). The court must remember that "[e]ven
       when the law or the facts appear questionable or
       unfavorable at the outset, a party may have an
       entirely reasonable ground for bringing suit." Chris-
       tiansburg, supra, 434 U.S. at 422.

508 U.S. at 60 n.5 (citations modified). Professional Real
Estate Investors itself involved a copyright action that had
been defeated on summary judgment. See id. at 52-53.
Because this action "was arguably `warranted by existing law'
or at the very least was based on an objectively`good faith
argument for the extension, modification, or reversal of exist-
ing law,' " the Supreme Court affirmed the lower court's
decision rejecting the antitrust counterclaim. Id. at 65 (quoting
Fed. R. Civ. P. 11). See also Liberty Lake Invs., Inc. v.
Magnuson, 12 F.3d 155, 157-58 (9th Cir. 1993). We do not
lightly conclude in any Noerr-Pennington case that the litiga-
tion in question is objectively baseless, as doing so would
leave that action without the ordinary protections afforded by
the First Amendment, a result we would reach only with great
reluctance.15

[12] Applying these principles to the present case, it fol-
lows that the plaintiffs' state-court lawsuit could have
amounted to a discriminatory housing practice only in the
event that (1) no reasonable litigant could have realistically
expected success on the merits, and (2) the plaintiffs filed the
suit for the purpose of coercing, intimidating, threatening, or
interfering with a person's exercise of rights protected by the
FHA. Because, in the present case, the first requirement can-
not be sustained, we need not even consider the second.
Objective baselessness is the sine qua non of any claim that
a particular lawsuit is not deserving of First Amendment protec-
tion.16 The lawsuit filed by the plaintiffs was unquestionably
not objectively baseless. Far from it: it challenged a rather
egregious conflict of interest by a person who was simulta-
neously a member of both the Zoning Adjustment Board and
the board for the developer seeking the Bel Air use permit. As
the director of HUD's Office of Investigations ultimately con-
cluded, the plaintiffs' action "would have constituted a suc-
cessful legal claim" but for the court's application of the
"good faith" exception under California law.

The HUD officials protest that they could not ascertain
from the face of HRI's administrative complaint whether the
plaintiffs' lawsuit in fact had an objective basis. The com-
plaint did not mention the conflict of interest that lay at the
heart of the litigation. Instead, the complaint simply stated
that (1) the plaintiffs had filed a lawsuit seeking to stop RCD
16 There is an exception to this rule that we discuss in Section I.B.3.b.,
infra. It is, however, not pertinent here.

from receiving a use permit for the Bel Air project, (2) they
had failed in their efforts to obtain a preliminary injunction,
and (3) HRI believed that the plaintiffs were "blocking" the
Bel Air project "because they perceive the primary residents
of the facility will be the mentally disabled or the disabled
through substance abuse." The officials argue that while it did
not say so explicitly, HRI's complaint at least raised the pos-
sibility that the plaintiffs' lawsuit was objectively baseless,
that its sole purpose was to cripple the Bel Air project by
causing undue delay and the imposition of substantial legal
costs on its supporters, and therefore that the state-court
action constituted a discriminatory housing practice under the
FHA.17 The officials contend that on that basis they were enti-
tled, and indeed required by S 3610(a)(1)(B) of the FHA, to
investigate this matter.

We agree that the San Francisco Office was justified in
accepting HRI's complaint. Furthermore, the mere fact that
the officials provided the plaintiffs with a copy of HRI's com-
plaint and informed them of their rights and duties under the
FHA, pursuant to S 3610(a)(1)(B)(ii), did not in itself violate
the plaintiffs' rights under the First Amendment. As we have
explained earlier, however, the critical issue is not whether
the HUD officials were justified in accepting HRI's complaint
and initiating some form of limited investigation, but whether
the manner in which they actually conducted their eight-
month investigation violated the plaintiffs' First Amendment
rights.

[13] This court has held that when an action involves "the
right to petition governmental bodies under Noerr-
Pennington," it is necessary to apply a "heightened level of
protection . . . to avoid `a chilling effect on the exercise of this
fundamental First Amendment right.' " ONRC v. Mohla, 944
F.2d at 533 (quoting Franchise Realty Interstate Corp. v. San
Francisco Local Joint Executive Bd., 542 F.2d 1076, 1082
(9th Cir. 1976)). Because the plaintiffs' lawsuit could have
been actionable under the FHA if and only if it were a sham,
the officials were obligated to first determine that the suit was
objectively baseless before proceeding with any potentially
chilling investigation into the plaintiffs' protected speech and
other petitioning activity -- even for the stated purpose of
determining whether the plaintiffs had filed the suit with an
unlawful discriminatory intent. As with the methodology
mandated by the Supreme Court for judicial review of law-
suits, see Professional Real Estate Investors , 508 U.S. at 60-
61, a determination of objective baselessness of the litigation
is a constitutionally required precondition to any investigation
into the nature of the plaintiffs' advocacy.

[14] The HUD officials completely failed to satisfy this
threshold requirement. From the time they initiated their
investigation until the time they submitted their final report to
the Washington office, the officials made little or no effort to
investigate the basis for the plaintiffs' suit. Instead, their
investigation focused almost exclusively on what the officials
considered to be the plaintiffs' discriminatory speech. Direc-
tor Gillespie's two-page, single-spaced letter of July 1994
broadly asserted HUD's purported jurisdiction to investigate
"speech advocating illegal acts" and cited reprovingly the
plaintiffs' "news articles which referenced the mental disabili-
ty" of the Bel Air project's intended residents; it did not, how-
ever, mention the plaintiffs' lawsuit once. Likewise,
investigator Smith did not ask the plaintiffs any questions
about the lawsuit during his interviews. Most striking, the
officials completed and submitted to HUD headquarters a
final investigative report that failed to include any information
about the plaintiffs' lawsuit more substantial than what was
set forth in HRI's complaint. After receiving the San Fran-
cisco Office's investigative materials, and analysis, and its
finding of "reasonable cause" to believe that the plaintiffs had
violated the FHA, Director Pratt in the Office of Investiga-
tions felt compelled to direct the San Francisco Office to sup-
plement the report with information and documents on the
lawsuit. This is in spite of the fact that on February 8, 1994,
the plaintiffs' attorney had sent investigator Lee a memoran-
dum from the Berkeley City Manager acknowledging the con-
flict of interest that was the subject of the plaintiffs' action.

These undisputed facts show that the San Francisco HUD
officials conducted their eight-month investigation, primarily
if not exclusively, into and in response to the plaintiffs' pur-
portedly unlawful speech and not in connection with their
state-court lawsuit. Having ignored the factual and legal basis
for that litigation throughout, and instead having taken a
course certain to chill the exercise of the plaintiffs' First
Amendment rights, the officials may not now argue that their
investigation was justified as a means of determining whether
the plaintiffs had violated the FHA by filing a sham lawsuit.

b. Bill Johnson's

The HUD officials strongly argue, however, that most of
the investigatory period occurred after the state court entered
judgment against the plaintiffs, and because of that adverse
judgment there was no need for the officials to inquire into
the lawsuit's objective basis. This argument is based on the
theory that the Noerr-Pennington "sham" rule that protects all
but frivolous suits applies in antitrust cases only and therefore
does not apply to the plaintiffs' lawsuit. The officials assert
that a decision from the realm of labor law, Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), rather than
Noerr-Pennington, sets forth the appropriate rule for the case
before us. Under Bill Johnson's, according to the HUD offi-
cials, if a plaintiff loses its lawsuit, all that it is necessary to
show is that the suit was filed with a discriminatory motive;
whether or not there was an objective basis for the legal
action is immaterial.

In Bill Johnson's a waitress filed unfair labor practice
charges with the National Labor Relations Board (NLRB),
alleging that she had been fired for her efforts to organize a
union. 461 U.S. at 733. The restaurant sued her in state court,
alleging that while picketing she had harassed customers,
blocked access to the restaurant, threatened public safety, and
libeled the restaurant in her leaflets. Id. at 734. The waitress
then filed a second charge with the NLRB, alleging that the
restaurant had violated 29 U.S.C. S 158(a)(1) of the National
Labor Relations Act (NLRA), which makes it an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights" guaranteed under that
act. See 461 U.S. at 734-35. The NLRB found that the restau-
rant's lawsuit lacked a reasonable basis in fact and was filed
to penalize the waitress for engaging in protected activity, and
it ordered the restaurant to withdraw its state-court complaint
and undertake a number of additional remedial measures. Id.
at 737.

The Supreme Court vacated and remanded. It observed that
S 158(a)(1) was a broad, remedial provision intended to guar-
antee employees the ability to enjoy their rights under the
NLRA, and that "[a] lawsuit no doubt may be used by an
employer as a powerful instrument of coercion or retaliation."
Id. at 740. On the other hand, the Court wrote, "the right of
access to the courts is an aspect of the First Amendment right
to petition the Government for redress of grievances." Id. at
741 (citing California Motor Transp., 404 U.S. at 510). It
cited its construction of the antitrust laws "as not prohibiting
the filing of a lawsuit, regardless of the plaintiff's anticompe-
titive intent or purpose in doing so, unless the suit was a
`mere sham' filed for harassment purposes." Id. (citing Cali-
fornia Motor Transp., 404 U.S. at 511). The NLRA had to be
construed with a similar sensitivity to "these First Amend-
ment values," the Court said. Id. It therefore concluded that
the California Motor Transport rule for "sham litigation"
applied to the NLRA as well. The NLRB could enjoin a state-
court lawsuit as an unfair labor practice only if the employer
was "prosecut[ing] a baseless lawsuit with the intent of retali-
ating against an employee for the exercise of rights protected
by [S 158]." Id. at 744. An injunction would be improper if
there was "any realistic chance that the plaintiff's legal theory
might be adopted." Id. at 747.

Notwithstanding the foregoing analysis and its affirmance
of the principles set forth in California Motor Transport, the
Court in Bill Johnson's then went on to draw a distinction
with respect to the NLRB's right to impose remedies for the
filing of state-court lawsuits that were pending and those that
had concluded in a judgment adverse to the plaintiffs. The lat-
ter lawsuits, the Court stated, did not receive the same broad
immunity from NLRB action as the former. Once the plaintiff
lost its lawsuit, the NLRB could "consider the matter further
and, if it is found that the lawsuit was filed with retaliatory
intent, . . . find a violation and order appropriate relief." Id.
at 749. Such NLRB action was permissible because at that
point "the employer has had its day in court,[and] the interest
of the state in providing a forum for its citizens has been vin-
dicated." Id. at 747. We would ordinarily be tempted to treat
these statements in Bill Johnson's as dicta, because they were
not pertinent to the case before the Court and because in Pro-
fessional Real Estate Investors, decided ten years later, the
Court did not even mention the Bill Johnson's  statements
when holding that unsuccessful lawsuits receive the tradi-
tional protection described in California Motor Transport,
specifically including the requirement of objective baseless-
ness.18 Whatever we might otherwise make of the apparently
contradictory positions announced by the Court, however, this
circuit is not free to ignore the Bill Johnson's  statements. On
the basis of those statements, we have rejected an employer's
argument that the NLRB erred in failing to determine whether
a libel suit, which did not survive a demurrer in state court,
was baseless. See Diamond Walnut Growers, Inc. v. NLRB, 53
F.3d 1085, 1088 (9th Cir. 1995). In that case we held that
"bringing an action that proves unmeritorious may constitute
an unfair labor practice, even though the suit did not lack a
reasonable basis in law or fact at the time it was filed." Id. We
are bound by Diamond Walnut and therefore by the Bill John-
son's statements.

Citing Bill Johnson's and Diamond Walnut , the HUD offi-
cials argue that a person would violate the FHA if he brought
"an unsuccessful state court action to deter another person, or
group of persons, from exercising their federally protected
rights -- e.g. to keep them from moving into the neighbor-
hood." Because the plaintiffs ultimately lost their state-court
lawsuit, the officials argue that they acted properly in investi-
gating the plaintiffs' opposition to the Bel Air project to deter-
mine whether they had filed that action with a discriminatory
motive.19

The HUD officials do not adequately explain why the Bill
Johnson's and Diamond Walnut rule which is applicable in
NLRA cases should apply with respect to the FHA or to other
statutes generally. They contend that the holding in Profes-
sional Real Estate Investors is limited to the antitrust context,
whereas the statements in Bill Johnson's establish the rule
"for meritless state court suits in other contexts." The officials
get the point exactly backwards. As we have discussed, this
court has applied "the First Amendment rationale of the
Noerr-Pennington doctrine" broadly to claims not involving
antitrust law. See Manistee Town Ctr., _______ F.3d. at _______; Boul-
ware, 960 F.2d at 800; ONRC v. Mohla, 944 F.2d at 533-34.
Indeed, in Evans v. County of Custer we cited Noerr in hold-
ing that "the first amendment's protection of the right to peti-
tion the government for redress of grievances" encompasses
the right of homeowners to challenge such property-related
decisions by local government as road access rules. 745 F.2d
at 1204. Adopting the theory advanced by the HUD officials
would thus conflict with our prior case law which protects the
First Amendment right of citizens to engage in petitioning
activity, including the filing of lawsuits with an objective
basis in fact or law, even if they ultimately prove unsuccess-
ful. Restricting the basic Noerr-Pennington principles to anti-
trust cases, as the HUD officials urge, would contravene our
cases applying the Noerr-Pennington sham rule in all but the
NLRA context.20
Indeed, it is the NLRA cases that we treat differently from
all others with respect to the Noerr-Pennington "sham" excep-
tion. The reason is simple. The First Amendment rights of
employers "in the context of [the] labor relations setting" are
limited to an extent that would rarely, if ever, be tolerated in
other contexts. See NLRB v. Gissel Packing Co. , 395 U.S.
575, 617 (1969). In Gissel Packing the Supreme Court held
that employer speech that constitutes an unfair labor practice
under the NLRA does not receive full First Amendment protec-
tion.21 The employer's right of expression has to be balanced
against "the equal rights of the employees to associate freely,"
giving special consideration to "the economic dependence of
the employees on their employers." Id. at 617. See also NLRB
v. Associated Gen. Contractors, Inc., 633 F.2d 766, 772 n.9
(9th Cir. 1980) ("Any attempt to reconcile an asserted govern-
mental interest in disclosure with First Amendment rights
must be made in the context of the labor relations setting.
Association that would otherwise be protected may be regu-
lated if necessary to protect substantial rights of employees or
to preserve harmonious labor relations in the public interest.")
(citation omitted). The NLRB is an agency charged with the
regulation of union elections, the debate between employers
and employees, and other related speech and conduct. Regula-
tions controlling such expressive activity would almost cer-
tainly be invalid outside the labor relations setting.

In sum, the HUD officials would transform an exception
that applies only to NLRB regulation of unfair labor practices
into a rule of general applicability. They cite no cases that
have so extended the Bill Johnson's "rule," and we have
found none through our own research. Moreover, despite the
present argument of the officials made for purposes of litiga-
tion, the director of HUD's Office of Investigations in Wash-
ington acknowledged, in finding no reasonable cause to
proceed, that when a lawsuit is "premised on a reasonable
basis in fact or in law," it is "protected by the First Amend-
ment." We therefore conclude, as we have concluded in other
contexts (including in the context of the petitioning activity of
homeowners), that the principles embodied in the Noerr-
Pennington doctrine apply to this case. That doctrine protects
losing as well as winning lawsuits, so long as they are not
objectively baseless. Thus, for the reasons explained earlier,
the HUD officials' failure to investigate the objective basis
for the plaintiffs' lawsuit rendered its investigation into the
plaintiffs' advocacy unconstitutional.

4. Excessive Breadth of the Defendants' Investigation

[15] As we have previously stated, there is a further reason
why the investigation into the plaintiffs' First Amendment
activity was violative of the plaintiffs' rights. Regardless of
whether Noerr-Pennington or Bill Johnson's applies, the
investigation far exceeded what was reasonable for the pur-
pose of ascertaining the plaintiffs' motives for filing the state-
court suit and thus intruded unnecessarily on their First
Amendment rights.

[16] It is axiomatic that when the actions of government
officials so directly affect citizens' First Amendment rights,
the officials have a duty to take the least intrusive measures
necessary to perform their assigned functions. See Lamont v.
Postmaster Gen. of United States, 381 U.S. 301, 310  (1965)
(Brennan, J., concurring) (citing Butler v. Michigan, 352 U.S.
380 (1957)); cf. Scott v. Rosenberg, 702 F.2d 1263, 1275 (9th
Cir. 1983) (observing that although "[c]ertainly, governmental
agencies must be wary of complaints which cannot be investi-
gated without interfering with first amendment rights," inves-
tigation "in this case was narrow and avoided any
unnecessary interference with the free exercise of religion").

The plaintiffs' reasons for opposing the Bel Air project were
matters of public record and evident from the flyers in the San
Francisco Office's possession before HRI even filed its com-
plaint. There was simply no justification for the officials to
take the extraordinarily intrusive and chilling measures they
did during the subsequent eight-month investigation. There
was no cause, for example, for defendant Zurowski to advise
the plaintiffs during the conciliation process to "cease publi-
cation of discriminatory statements (including articles in the
CNA Newsletter) and fliers about the potential residents of
the Bel Air project"; even if the plaintiffs' suit had been
objectively baseless, their non-threatening statements, "dis-
criminatory" or not, would still have been fully protected by
the First Amendment. There was no cause for defendants
Smith and Lee to demand that the plaintiffs produce a list of
the names, addresses, and telephone numbers of all involved
parties and all witnesses to the expressive activity complained
of, as well as copies of all files in their control concerning the
Bel Air project. There was no cause for defendant Gillespie
to assume the authority to investigate speech because it advo-
cated discrimination against persons afforded benefits by the
Fair Housing Act. There was also no cause for defendant Phil-
lips to tell the San Francisco Examiner (if he did) that the
plaintiffs "had broken the law."

The HUD officials' conduct cannot be squared with the
First Amendment, no matter what rule is applied in evaluating
the filing of the state-court lawsuit. The breadth of the investi-
gation and the measures the officials took during its course
bore no relation to the narrow purpose on which they now
rely. The scope and manner of the investigation violated the
plaintiffs' First Amendment rights.

C. Was the Law Clearly Established?

[17] Having concluded that the plaintiffs have stated a
proper First Amendment claim, we next consider whether the
HUD officials are entitled to qualified immunity. Under this
doctrine, government officials sued for damages for injuries
arising out the performance of their discretionary functions
must be "shown to have violated `clearly established statutory
or constitutional rights of which a reasonable person would
have known.' " Conn v. Gabbert, 526 U.S. at 290 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818  (1982)). Closely
analogous preexisting case law is not required to show that a
right was clearly established. Schwenk, 204 F.3d at 1198;
Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994); Alex-
ander v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990). As the
Supreme Court has explained, "qualified immunity seeks to
ensure that defendants `reasonably can anticipate when their
conduct may give rise to liability,' by attaching liability only
if `[t]he contours of the right [violated are] sufficiently clear
that a reasonable official would understand that what he is
doing violates that right.' " United States v. Lanier, 520 U.S.
259, 270 (1997) (citations omitted). "This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful; but
it is to say that in the light of preexisting law the unlawfulness
must be apparent." Anderson v. Creighton, 483 U.S. 635, 640
(1987) (citations omitted). In analyzing a claim of qualified
immunity, this court asks two related questions: (1) Was the
law governing the officials' conduct clearly established? and
(2) Under that law, could a reasonable official have believed
the conduct lawful? See, e.g., Ortega v. O'Connor, 146 F.3d
1149, 1154 (9th Cir. 1998); Act Up!/Portland v. Bagley, 988
F.2d 868, 871 (9th Cir. 1993).22

[18] We hold that in this case the unconstitutionality of
each of the HUD officials' actions was apparent at the time
they acted. The plaintiffs' claim is founded on bedrock First
Amendment principles and legal rules that this court and the
Supreme Court have applied for decades, if not centuries. In
1993 and 1994, reasonable government officials would have
known that they could not conduct an eight-month investiga-
tion into the vocal but entirely peaceful opposition of resi-
dents to a housing project proposed for their neighborhood, or
into their efforts to persuade the appropriate government
agencies of their point of view. They would also have known
that accusations of law-breaking, threatened subpoenas,
improper broad demands for documents and information, and
admonishments to cease nonfrivolous litigation and the publi-
cation of "discriminatory" statements would chill "uninhib-
ited, robust, and wide-open" debate on public issues. See New
York Times Co. v. Sullivan, 376 U.S. 254, 270  (1964). The
HUD officials could not have reasonably believed their
actions (as described at p. 12459 supra and in the Statement
of Facts) to be consistent with the First Amendment. 23 See
cases cited in Section I.B.1., supra.

The officials argue that they were required by statutes and
regulations to serve HRI's complaint on the plaintiffs, con-
duct an investigation, and attempt to resolve it through concil-
iation. The fact that an investigation may have been initiated
pursuant to statutory and regulatory authority does not, how-
ever, entitle the defendants to qualified immunity regarding
the extent of the investigation and the manner in which it was
conducted. See, e.g., Calabretta, 189 F.3d at 817 (stating that
it was "not clear" why authorization under state regulations
would excuse officials "from compliance with the Fourth
Amendment"). It is the scope and manner of the investigation
that the HUD officials should have known to be violative of
the plaintiffs' First Amendment rights.
It was also clearly established that the Noerr-Pennington
doctrine sharply limited the officials' ability to treat the plain-
tiffs' state-court lawsuit as a possible violation of law. Con-
trolling case law had made clear that the doctrine was not
limited to the antitrust context, and that the officials had a
duty to first determine that the plaintiffs' suit -- the only con-
ceivable FHA violation alleged in HRI's administrative com-
plaint -- was objectively baseless before proceeding with a
potentially chilling investigation into the plaintiffs' indisputa-
bly protected speech and other petitioning activity. See cases
cited in Section I.B.3., supra.

The HUD officials--or, to be more specific, their counsel
from the U.S. Department of Justice--contend that they will
face the specter of "personal financial ruin" in the event that
they are denied qualified immunity. The appropriate amount
of damages to be awarded for the injuries sustained by the
plaintiffs will be an issue for the jury or judge on remand; we
express no opinion on that subject now. We observe only that
Bivens suits against individual officials are often the only
available means by which citizens may obtain remedies when
the federal government violates their constitutional rights. To
the extent that HUD is genuinely concerned about the inhibit-
ing effect that the threat of personal liability will have on its
future operations, it may indemnify its employees as permit-
ted by law. We would, in fact, be most surprised if the agency
did not do so in this case. When government officials violate
citizens' clearly established First Amendment rights, how-
ever, we will not apply the doctrine of qualified immunity to
defeat a remedy of damages to which the citizens are entitled
under Bivens.

II. PARTIAL SUMMARY JUDGMENT ON
       LIABILITY

The HUD officials ask us to review the district court's deci-
sion granting the plaintiffs summary judgment on the issue of
liability. Under Federal Rule of Civil Procedure 56(c), a court
may award a partial summary judgment that decides only that
issue. The district court did so here. The court cited the fol-
lowing conduct as establishing liability: 1) defendant Smith's
supervision of Lee and Zurowski and his specific direction
that Lee ask the plaintiffs questions about their opposition to
the Bel Air project, questions which Lee considered irregular
and beyond the scope of a routine FHA investigation; 2)
defendant Lee's work as the investigator on the case; 3) the
offer made by defendant Zurowski "to terminate the investi-
gation if the plaintiffs agreed to relinquish their constitution-
ally protected expressive activities"; and 4) defendant
Gillespie's review and approval of the final investigative
report. "In participating and contributing to the HUD investi-
gation," the court stated, "each of these defendants engaged
in conduct which impermissibly chilled the plaintiffs' First
Amendment activities."

The plaintiffs argue that we do not have jurisdiction to
review this ruling. In general, orders granting partial summary
judgment are not appealable final orders under 28 U.S.C.
S 1291 "because partial summary judgment orders do not dis-
pose of all claims and do not end the litigation on the merits."
Williamson v. UNUM Life Ins. Co. of America, 160 F.3d
1247, 1250 (9th Cir. 1998) (citations omitted). We conclude,
however, that special circumstances exist in this case that per-
mit us to review the award of partial summary judgment, and
to leave for trial, with respect to these four defendants, only
the issue of damages.

As explained earlier, we have jurisdiction to review on
interlocutory appeal the district court's decision denying the
officials summary judgment on the defense of qualified
immunity. We also have jurisdiction to review at the same
time other issues that are "inextricably intertwined" with the
question of qualified immunity. See Swint v. Chambers
County Comm'n, 514 U.S. 42, 51  (1995); Mendocino Envi-
ronmental Ctr., 192 F.3d at 1296. In Marks v. Clarke, 102
F.3d 1012 (9th Cir. 1996), we concluded that we had jurisdic-
tion to review the district court's rulings granting partial sum-
mary judgment on liability which, we found, were
"unquestionably inextricably intertwined" with the district
court's decision to deny the defendants qualified immunity.
Id. at 1018.

In reviewing the plaintiffs' qualified immunity appeal
under the methodology mandated by the Supreme Court, we
have already found that the plaintiffs stated a valid claim for
a violation of their First Amendment rights. We recognize,
however, that an interlocutory appeal of a denial of summary
judgment as to the defense of qualified immunity necessarily
involves only issues of law, see Johnson, 515 U.S. at 319,
while an appeal from a grant of partial summary judgment on
the merits may well involve disputed factual issues or even
additional or different questions of law.

In the case before us the material facts as to defendants
Smith, Lee, Zurowski, and Gillespie are undisputed, as a
result primarily of the parties' commendable submission to
the district judge of a comprehensive joint statement of undis-
puted facts. Moreover, the principal issues of law involved in
the partial summary judgment appeal have necessarily all
been resolved by our qualified immunity determination. It is
clear from that determination, moreover, that the conduct of
each of these defendants violated the plaintiffs' constitutional
rights. Accordingly, we conclude that here the two issues on
appeal are sufficiently "inextricably intertwined " to justify
our exercise of jurisdiction over them both. Cf. Huskey v. City
of San Jose, 204 F.3d 893, 904-05 (9th Cir. 2000) (exercising
interlocutory appellate jurisdiction to find city not liable
where its liability was based solely on liability of individual
officials and qualified immunity analysis showed that plaintiff
had not stated proper constitutional claim).

The four HUD officials argue that the partial summary
judgment ruling was erroneous because there are "factual
issues that remain despite the joint statement of undisputed
facts." They make two specific points. First, they argue that
"whether the plaintiffs were in fact chilled in the exercise of
the speech is a disputed question for the jury." The dispute,
if there were one, would not be material. In making their First
Amendment claim, the plaintiffs were obligated to prove only
that the officials' actions would have chilled or silenced "a
person of ordinary firmness from future First Amendment
activities," not that their speech and petitioning were "actually
inhibited or suppressed." Mendocino Environmental Ctr., 192
F.3d at 1300 (citation omitted). In any event, the officials
point to no evidence in the record that disputes the assertions
in the plaintiffs' declarations that their rights were in fact
chilled. The officials did not submit excerpts of any deposi-
tions of the plaintiffs, or any other evidence tending to under-
mine the plaintiffs' credibility on this point. While, on
remand, the officials will certainly be entitled to challenge the
extent of the injury suffered by the plaintiffs for purposes of
determining damages, the fact that the plaintiffs incurred First
Amendment injury is not a matter in genuine dispute.

Second, the officials contend that the district court "plainly
erred" in entering a finding of liability against defendant
Zurowski. The joint statement of undisputed facts states only
that Zurowski conveyed to the plaintiffs HRI's conciliation
proposal demanding that the plaintiffs cease all litigation and
"publication of discriminatory statements (including articles
in the CNA Newsletter) and fliers about the potential resi-
dents of the Bel Air Project." The officials argue that a gov-
ernment official's mere conveyance of a settlement offer,
even one containing patently unconstitutional terms, does not
violate the First Amendment. We need not decide this ques-
tion because it is also undisputed that Zurowski advised
David Bryden, the attorney then representing the plaintiffs, to
accept the unconstitutional conciliation proposal because,
Zurowski said, HUD had already collected evidence that the
plaintiffs had violated the FHA. Such official action, we have
already held, was sufficiently chilling to establish liability
under the First Amendment.

The HUD officials repeatedly contend in their briefs that
the assertion, set forth in a declaration by attorney Bryden,
that Zurowski endorsed the conciliation proposal, is "disput-
ed" and therefore an improper basis for an award of summary
judgment. At oral argument, however, counsel conceded that
the record contains no evidence that disputes Bryden's asser-
tion -- not even a declaration from Zurowski denying that the
conversation as reported by Bryden took place. In civil rights
cases, as in all others, summary judgment can work both for
and against the government. Rule 56(e) provides that"[w]hen
a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's pleading,
but the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial." We may not reverse an
award of partial summary judgment simply because the gov-
ernment asserts, without evidence in the record, that a critical
fact is disputed.

Resolving all inferences from the evidence in the four offi-
cials' favor, we conclude that it was not error for the district
court to award the plaintiffs partial summary judgment on the
issue of liability.24

III. DISMISSAL OF CLAIM FOR PROSPECTIVE
       RELIEF

Lastly, we consider the plaintiffs' cross-appeal of the dis-
trict court's dismissal of their claim for declaratory and
injunctive relief. The HUD officials moved for dismissal on
the alternative grounds of standing and mootness. Because
standing and mootness both pertain to a federal court's
subject-matter jurisdiction under Article III, they are properly
raised in a motion to dismiss under Federal Rule of Civil Pro-
cedure 12(b)(1), not Rule 12(b)(6). See, e.g. , Bland v. Fessler,
88 F.3d 729, 732 n.4 (9th Cir. 1996) (citing Gemtel Corp. v.
Community Redevelopment Agency, 23 F.3d 1542, 1544 n.1
(9th Cir. 1994)). We review a Rule 12(b)(1) order of dismissal
de novo. Virgin v. County of San Luis Obispo, 201 F.3d 1141,
1142 (9th Cir. 2000) (citing Crist v. Leippe, 138 F.3d 801,
803 (9th Cir.1998)).

Rule 12(b)(1) jurisdictional attacks can be either facial or
factual. See 2 James Wm. Moore et al., Moore's Federal
Practice P 12.30[4], at 12-38 to 12-41 (3d ed. 1999). Here, the
officials' facial attack on the plaintiffs' amended complaint
fails. The plaintiffs alleged their desire "to continue to be
vocal opponents of government housing projects"; the plan-
ning of other housing projects involving groups protected
under the FHA against which the plaintiffs wished to advo-
cate; and the continued efforts of HUD officials "to pursue
and regulate protected speech" in the manner that occurred
with respect to the Bel Air project. These allegations estab-
lished "a likelihood of future injury" sufficient to give the
plaintiffs standing to seek declaratory and injunctive relief.
See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th
Cir. 1999).

With a factual Rule 12(b)(1) attack, however, a court may
look beyond the complaint to matters of public record without
having to convert the motion into one for summary judgment.
Gemtel Corp., 23 F.3d at 1544 n.1 (citing Mack v. South Bay
Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986)). It
also need not presume the truthfulness of the plaintiffs' alle-
gations. Moore's Federal Practice, supra , P 12.30[4], at 12-
38.

In evaluating the officials' factual attack here, the district
court considered the following items: (1) a memorandum
issued by Roberta Achtenberg, Assistant Secretary for FHEO,
dated April 3, 1995, and titled "Substantive and Procedural
Limitations on Filing and Investigating Fair Housing Act
Complaints That May Implicate the First Amendment"
("Achtenberg memorandum"); (2) a press release and state-
ment dated September 2, 1994, announcing HUD's distribu-
tion to employees of "specific guidelines on speech and
activities protected by the First Amendment"; and (3) a field
handbook for FHEO staff dated September 1995 incorporat-
ing the substance of the Achtenberg memorandum. The press
release stated that HUD had "moved to develop " its guide-
lines in response to its investigation of plaintiffs White, Der-
inger, and Graham. This investigation, the release stated, had
resulted in a finding "that the trio's activities in opposition to
the project had not violated the Fair Housing Act because they
were protected free speech under the Constitution's First
Amendment."

The Achtenberg memorandum prohibits HUD officials
from accepting for filing or investigating any complaint
involving public activities that "are directed toward achieving
action by a governmental entity or officials" and "do not
involve force, physical harm, or a clear threat of force or
physical harm to one or more individuals." It lists examples
of protected speech activity and provides that "any investiga-
tion which may be necessary to obtain information about the
extent to which the First Amendment may be applicable
should be prompt, narrowly tailored to gather sufficient pre-
liminary data to allow such a decision to be made, and con-
ducted in close consultation with counsel." It prohibits
document requests that seek "membership lists, fundraising
information or financial data of an organization that is or may
be engaging in protected speech activities," and the prepara-
tion or transmission of conciliation proposals "that would cir-
cumscribe the First Amendment rights of any party to the
complaint." The Achtenberg memorandum also states that a
"lawsuit which is frivolous can be a violation of the Act."
While it does not define this standard or discuss the First
Amendment concerns involved with respect to the filing of
nonfrivolous suits, the memorandum provides that "given the
sensitivity and complexity of the issues relating to such litiga-
tion, all situations involving claims that litigation amounts to
a violation of [S 3617 of the FHA] must be cleared with
Headquarters before the complaint is filed." More broadly, the
memorandum states that where FHA concerns "intersect with
First Amendment protections," HUD officials must defer to
the latter: "the Department chooses to err on the side of the
First Amendment."

The HUD officials argue that in light of these materials, the
district court erred in declining to dismiss the plaintiffs'
request for injunctive relief on the ground of standing. We
disagree. Standing is examined at "the commencement of the
litigation." See Friends of the Earth, Inc. v. Laidlaw Environ-
mental Servs., Inc., _______ U.S. _______, _______, 120 S. Ct. 693, 698-99
(2000). At the time the plaintiffs' filed their complaint, the
Achtenberg memorandum had been in effect for only a month
and was scheduled to expire in less than a year. The recent
implementation of such a temporary policy was insufficient to
eliminate the plaintiffs' standing to seek prospective relief. As
this case has progressed, however, the policy has become
entrenched. It was therefore appropriate for the district court
to analyze the officials' factual Rule 12(b)(1) challenge as a
question of mootness, not standing.

The Supreme Court has made clear that the standard for
proving that a case has been mooted by a defendant's volun-
tary conduct is "stringent":

        "A case might become moot if subsequent events
       made it absolutely clear that the allegedly wrongful
       behavior could not reasonably be expected to recur."
       United States v. Concentrated Phosphate Export
       Ass'n, 393 U.S. 199, 203  (1968). The "heavy burden
       of persua[ding]" the court that the challenged con-
       duct cannot reasonably be expected to start up again
       lies with the party asserting mootness. Id.

Friends of the Earth, 120 S. Ct. at 708 (citations modified).
See also United States v. W.T. Grant Co., 345 U.S. 629, 632-
33 (1953). The Court specifically observed that a government
agency's moratorium that "by its terms was not permanent"
would not moot "an otherwise valid claim for injunctive
relief." Friends of the Earth, 120 S. Ct. at 709. Here, how-
ever, it is clear that the Achtenberg memorandum represents
a permanent change in the way HUD conducts FHA investi-
gations, not a temporary policy that the agency will refute
once this litigation has concluded. The memorandum is broad
in scope and unequivocal in tone. It is fully supportive of First
Amendment rights. Further, it addresses all of the objection-
able measures that HUD officials took against the plaintiffs in
this case, and even confesses that this case was the catalyst for
the agency's adoption of the new policy. HUD has renewed
the Achtenberg memorandum on a yearly basis,25 and since its
implementation the agency's officials have not engaged in
conduct similar to that challenged by the plaintiffs here.26

Because HUD has met its heavy burden of proving that the
challenged conduct cannot reasonably be expected to recur,
we agree that the plaintiffs' claim for prospective relief is moot.27
CONCLUSION

For the reasons stated, we affirm all the rulings of the dis-
trict court challenged on the appeals and cross-appeal.

AFFIRMED/dcs/programs/www/cgi-prod/getfile.sh[51]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove:  not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove:  not found

_______________________________________________________________

FOOTNOTES

1 As to one defendant, there are other issues, but they in no way affect
this opinion.
2 Although the stipulated facts state that the "approval" of the City
Council was required, the remainder of the stipulation and record make it
clear that the Council had the authority to reject the Zoning Adjustment
Board's decision to issue a permit but was not required to grant affirma-
tive approval.
3 This letter stated in part:

       A small well-funded group of neighborhood homeowners, in con-
       cert with a political organization, has effectively blocked the
       project to date. They have been particularly successful in building
       opposition through scare tactics, as is evidenced in their litera-
       ture. One of their principal arguments against this project is that
       it will benefit people that are diagnosed as mentally disabled or
       disabled through substance abuse. . . . Although we have encoun-
       tered resistance on other affordable housing projects, it has never
       been so strong, nor so clearly discriminatory. Also, we are dis-
       turbed by the fact that these neighbors are backed by a political
       organization (the Council of Neighborhood Associations, or
       CNA).
4 The flyers made a variety of points about the project. One, titled "Who
are the Homeless?", showed a pie chart dividing the homeless into three,
presumably discrete categories -- economic, mentally ill, and substance
abusers -- and complained about the "inequitable distribution" of Berke-
ley housing and services for the homeless in poor areas or commercial cor-
ridors "with high ethnic concentrations." Another listed projects planned
for the area near the intersection of University and Shattuck Avenues,
stated that these projects would provide beds for"90 mentally ill and 90
`stabilized' substance abusers," and concluded, "This is commercial sui-
cide! Impacts MUST be assessed!" A third flyer contended that inadequate
information had been provided about the Bel Air project for the Berkeley
City Council to make a "fair, complete and proper evaluation"; regarding
the project's tenant population, it stated, "At least 71% will be homeless,
but no details as to mentally ill, substance abusers, dual diagnosis, etc."5 With respect to possible penalties, each letter specified: "In an admin-
istrative law proceeding, if the judgement is for the complainant, remedies
include injunctive relief, actual damages, and civil penalties up to $10,000
for a first offense, or $50,000 for multiple offenses. If the matter is
referred to a U.S. District Court, remedies include injunctive relief, actual
and punitive damages, and civil penalties up to $50,000 for a first offense,
or $100,000 for multiple offenses. Under Section 813, the complainant
also retains the right to bring an individual lawsuit under the Federal Fair
Housing Law. . . ."6 Counsel for the HUD officials contend that this assertion by Bryden is
"disputed" and therefore cannot support the district judgment's grant of
summary judgment for the plaintiffs on the issue of liability. At oral argu-
ment, however, counsel admitted that the record does not contain any evi-
dence disputing this assertion.
7 It is clear that in granting the plaintiffs' motion for partial summary
judgment against defendants Lee, Smith, Zurowski, and Gillespie on the
issue of liability, the district court held that as a matter of law these defen-
dants were not entitled to qualified immunity. Therefore, as to these defen-
dants, we disregard as inconsistent with the court's clear holding its
statement that the qualified immunity inquiry, "one of reasonableness, . . .
remains a question of fact for the trier of fact. " As to Phillips, factual
issues may remain for trial.
8 See also Laird v. Tatum, 408 U.S. 1, 12 -13 (1972) ("[G]overnmental
action may be subject to constitutional challenge even though it has only
an indirect effect on the exercise of First Amendment rights."); American
Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 402  (1950) ("[T]he
fact that no direct restraint or punishment is imposed upon speech or
assembly does not determine the free speech question. Under some cir-
cumstances, indirect `discouragements' undoubtedly have the same coer-
cive effect upon the exercise of First Amendment rights as imprisonment,
fines, injunctions, or taxes.").
9 In NAACP v. Alabama ex rel. Patterson, the Supreme Court observed
that the "compelled disclosure" of a controversial group's membership is
"likely to affect adversely the ability of [the group] and its members to
pursue their collective effort to foster beliefs which they admittedly have
the right to advocate." 357 U.S. at 462-63.
10 As to Phillips, there may be a factual issue as to whether he made the
statement at issue. For purposes of considering the denial of his motion for
summary judgment on his qualified immunity defense, we must assume
the facts as asserted by the plaintiffs.
11 The FHA's prohibitions were expanded to include discrimination
based on familial status and handicap in the Fair Housing Amendments
Act of 1988 (FHAA), Pub. L. No. 100-430, 102 Stat. 1619 (1988). A per-
son is considered handicapped under the FHA if he has a physical or men-
tal impairment (including "mental retardation, emotional illness, drug
addiction (other than addiction caused by current, illegal use of a con-
trolled substance) and alcoholism") that substantially limits one or more
major life activities. 24 C.F.R. S 100.201. The FHAA also made violations
of S 3617 "discriminatory housing practices " under S 3602(f), which HUD
may investigate under S 3610.
12 HUD's notice must acknowledge the complainant's filing and advise
him "of the time limits and choice of forums provided under this subchap-
ter." 42 U.S.C. S 3610(a)(1)(B)(i).
13 HUD's notice must identify to the respondents "the alleged discrimi-
natory housing practice," provide a copy of the complaint, and advise
them "of the procedural rights and obligations of respondents under this
subchapter." 42 U.S.C. S 3610(a)(1)(B)(ii).
14 We do not mean to imply that the converse is true. Whether or not
Noerr-Pennington provides greater protection than the First Amendment
is a question we need not consider in this case.
15 Nor do we decide whether lawsuits that challenge government conduct
may ever be treated as "sham," even if objectively baseless. See Note, A
Petition Clause Analysis of Suits Against the Government: Implications
for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1118 (1993). Cf. City of

17 Even though HRI's complaint was actually drafted by a HUD intake
analyst, administrative complaints are normally interpreted generously to
the complainant in statutory schemes "in which laymen, unassisted by
trained lawyers, initiate the process." Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 397  (1982) (quoting Love v. Pullman Co., 404 U.S. 522,
527 (1972)).
18 Particularly notable is the fact that in Professional Real Estate Inves-
tors, the Court cited the holding in Bill Johnson's that "by analogy to
Noerr's sham exception, . . . even an `improperly motivated' lawsuit may
not be enjoined under the National Labor Relations Act as an unfair labor
practice unless such litigation is `baseless.' " 508 U.S. at 59. However,rather than applying or even citing the subsequent Bill Johnson's state-
ments regarding unsuccessful lawsuits, the Court emphasized that a liti-
gant's failure to prevail did not establish the objective baselessness of his
suit, and it proceeded to apply Noerr-Pennington immunity to an action
that had in fact been defeated on summary judgment. Had the Court
believed that the statements in Bill Johnson's  had any effect, we would
expect that it would have explained why it did not apply them in the case
before it. The fact that the Court did not do so indicates that it considered
the statements dicta.
19 The officials' investigation started in November 1993 and the state
court did not enter judgment against the plaintiffs' coalition until February
3, 1994. Most of the investigation, however, occurred after that date.
20 We note, incidentally, that in the few published decisions in which
lawsuits were claimed to constitute discriminatory housing practices, dis-
trict courts have generally applied the Noerr-Pennington "objectively
baseless" standard in evaluating First Amendment defenses. See, e.g.,
United States v. Wagner, 940 F. Supp. 972, 981-82 (N.D. Tex. 1996)
(holding that suit to enforce restrictive covenant against group home for
mentally retarded children "had no reasonable basis in law or fact," had
been filed with discriminatory aims, and therefore violated FHA); United
States v. Robinson, 3 Fair Hous.-Fair Lend. (P-H) P 15,979, at 15979.9 to
15979.12 (D. Conn. Jan. 26, 1995) (holding that neighbors' zoning action
challenging proposed use of home for handicapped children was not base-
less as matter of state law and was therefore protected by First Amend-
ment).
21 In Gissel Packing the employer had conveyed, through speeches, leaf-
lets, and letters, the message that it was in a precarious financial condition,
that a strike would probably result in a plant shutdown, and that in such
case the employees would have difficulty finding employment elsewhere.
395 U.S. at 619. The Court affirmed the NLRB's finding that these com-
munications constituted a threat of retaliatory action unprotected by the
First Amendment. Id. at 619-20.
22 Qualified immunity, we note, involves a purely objective inquiry. See
Crawford-El v. Britton, 523 U.S. 574, 588  (1998); Harlow, 457 U.S. at
817-19. We therefore decline to consider either the plaintiffs' contention
that the HUD officials "actually knew" that they were violating the First
Amendment but were "testing" to see how far they could proceed against
neighborhood protest groups under the FHA, or the officials' protestations
they are "dedicated" public servants who acted "in good faith."23 As to Phillips, our conclusion is based on the assumption that any dis-
puted material facts are resolved in the plaintiffs' favor. See note 10,
supra.
24 For the foregoing reasons, we also affirm the district court's denial of
defendant Lee's motion for summary judgment on liability.
25 The HUD officials have submitted notices showing that the agency
has extended the effective date of the Achtenberg memorandum five times
since its implementation, most recently to April 30, 2001.
26 The declarations and newspaper articles that the plaintiffs presented in
the district court in response to the defendants' motion to dismiss do not
show that HUD has acted in a manner inconsistent with the Achtenberg
memorandum's terms, and no contention is made that HUD has done so
since that time.
27 On August 8, 1996, when the district court granted the officials'
motion to dismiss the claim for prospective relief, the Achtenberg memo-
randum had been in effect for sixteen months. Whether or not the claim
for prospective relief was moot as of that time, it is clearly moot now. See
Arizonans for Official English v. Arizona, 520 U.S. 43, 66  (1997) (observ-
ing that "[t]o qualify as a case fit for federal-court adjudication, `an actual
controversy must be extant at all stages of review,' " and holding that
plaintiff's resignation from state job during appeal rendered her claim for
prospective relief moot) (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975)).