Reply Brief — Wells Fargo & Co., et al., Petitioners v. City of Miami, Florida

No. 19-688

IN THE

Supreme Court of the United States

_________

WELLS FARGO & CO.

and WELLS FARGO BANK, N.A.,

Petitioners,

v.

CITY OF MIAMI,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

_________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_________

PAUL F. HANCOCK

OLIVIA KELMAN

K&L GATES LLP

200 S. Biscayne Blvd.,

Ste. 3900

Miami, FL 33131

(305) 539-3300

NEAL KUMAR KATYAL

Counsel of Record

SEAN MAROTTA

MICHAEL D. GENDALL

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Petitioners

(Additional counsel listed on inside cover)

Additional counsel:

ANDREW C. GLASS

K&L GATES LLP

One Lincoln St.

Boston, MA 02111

(305) 539-3300

JOHN F. O’SULLIVAN

JAMES L. VANLANDINGHAM

HOGAN LOVELLS US LLP

600 Brickell Ave., Ste. 2700

Miami, FL 33131

(305) 459-6500

i

RULE 29.6 STATEMENT

The disclosure statement included in the petition

remains accurate.

ii

TABLE OF CONTENTS

RULE 29.6 STATEMENT ............................................ i

TABLE OF AUTHORITIES .......................................iii

ARGUMENT ............................................................... 2

THE ELEVENTH CIRCUIT’S DECISION

SHOULD BE VACATED. ......................................... 2

A.

This Case Is Moot. ......................................... 2

B.

This Court Should Vacate the Eleventh Circuit’s Judgment. ............................... 3

C.

The City’s Arguments Against Vacatur Are Wrong. ............................................... 8

CONCLUSION ....................................................... 13

iii

TABLE OF AUTHORITIES

Page

CASES:

Alabama v. Davis,

446 U.S. 903 (1980) ................................................ 8

Alvarez v. Smith,

558 U.S. 87 (2009) ................................................ 11

Azar v. Garza,

138 S. Ct. 1790 (2018) .................................. passim

Blue Water Navy Vietnam Veterans Ass’n,

Inc. v. Wilkie,

139 S. Ct. 2740 (2019) ...................................... 5, 10

Camreta v. Greene,

563 U.S. 692 (2011) .................................... 5, 7, 8, 9

City of Miami Gardens v. Wells Fargo &

Co.,

328 F. Supp. 3d 1369 (S.D. Fla. 2018) ................... 6

City of Miami Gardens v. Wells Fargo &

Co.,

931 F.3d 1274 (11th Cir. 2019) .............................. 6

Deakins v. Monaghan,

484 U.S. 193 (1988) ................................................ 9

Eisai Co. v. Teva Pharm. USA, Inc.,

564 U.S. 1001 (2011) ........................................ 5, 11

Great W. Sugar Co. v. Nelson,

442 U.S. 92 (1979) ............................................ 6, 11

Harper ex rel. Harper v. Poway Unified

Sch. Dist.,

549 U.S. 1262 (2007) ............................................ 11

iv

TABLE OF AUTHORITIES—Continued

Page

Hollingsworth v. U.S. Dist. Court for N.

Dist. of California,

562 U.S. 801 (2010) .......................................... 5, 11

Lehman v. MacFarlane,

529 U.S. 1106 (2000) ........................................ 5, 11

LG Elecs., Inc. v. InterDigital Commc’ns,

LLC,

572 U.S. 1056 (2014) .................................... 4, 5, 11

Radian Guar., Inc. v. Whitfield,

553 U.S. 1091 (2008) ........................................ 5, 11

Teel v. Khurana,

525 U.S. 979 (1998) .......................................... 6, 11

United States v. Microsoft Corp.,

138 S. Ct. 1186 (2018) ............................................ 3

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ........................................ passim

U.S. Bancorp Mortg. Co. v. Bonner Mall

P’ship,

513 U.S. 18 (1994) .................................... 3, 4, 9, 10

Village of Lincolnshire v. Int’l Union of

Operating Eng’rs Local 399,

139 S. Ct. 2692 (2019) ................................ 5, 10, 11

Whitfield v. Radian Guar., Inc.,

501 F.3d 262 (3d Cir. 2007) ................................. 11

RULE:

Fed. R. Civ. P. 41(a)(2) ............................................. 2

v

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITY:

Evan Weinberger, Miami Drops Fair Housing Cases Against Wells Fargo, BofA,

Bloomberg Law (Jan. 31, 2020),

https://tinyurl.com/sm3ubgx .................................. 3

IN THE

Supreme Court of the United States

_________

No. 19-688

_________

WELLS FARGO & CO.

and WELLS FARGO BANK, N.A.,

Petitioners,

v.

CITY OF MIAMI,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

_________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_________

The City of Miami filed this suit in 2013. In the

intervening six-plus years, the City has defended it

on the merits from the district court to the Eleventh

Circuit to this Court, then back to the Eleventh

Circuit, where the City prevailed. It is only after

having to respond to a new petition for a writ of

certiorari, backed by four amicus briefs, that the City

suddenly threw in the towel, unilaterally dismissing

its complaint in the district court with prejudice.

Wells Fargo welcomes the City’s abandonment of

its meritless suit and agrees with the City that the

case is now moot. But the City makes the audacious

claim that although its own voluntary actions have

deprived Wells Fargo of the ability to obtain review

(1)

2

and reversal of the Eleventh Circuit’s erroneous

judgment and opinion, this Court should nevertheless leave them in place.

Yet it is this Court’s “established practice * * * in

dealing with a civil case from a court in the federal

system which has become moot while on its way

here” to “vacate the judgment below.” United States

v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The

City has given no persuasive reason for the Court to

deviate from that established practice here.

The Court should grant the petition for writ of certiorari and summarily vacate the Eleventh Circuit’s

opinion and judgment below.

ARGUMENT

THE

ELEVENTH

CIRCUIT’S

SHOULD BE VACATED.

DECISION

A. This Case Is Moot.

The Eleventh Circuit held that the City adequately

pleaded proximate cause under the Fair Housing Act

with respect to the claim for allegedly lost property

taxes and remanded this case to the district court for

further proceedings. Pet. App. 1a-72a. On January

29, 2020—two days after the City filed its brief in

opposition to certiorari—the City moved in the

district court for voluntary dismissal with prejudice

under Federal Rule of Civil Procedure 41(a)(2).

Unopposed Mot. for Dismissal with Prejudice, City of

Miami v. Wells Fargo & Co., No. 1:13-cv-24508-WPD

(S.D. Fla. Jan. 29, 2020), ECF No. 116. The City

initiated the dismissal on its own, the dismissal “is

3

not related to a settlement, and Wells Fargo * * *

provid[ed] nothing in exchange.” Evan Weinberger,

Miami Drops Fair Housing Cases Against Wells

Fargo, BofA, Bloomberg Law (Jan. 31, 2020),

https://tinyurl.com/sm3ubgx.

The district court

granted the motion and dismissed the case with

prejudice the next day. Order Granting Plaintiff’s

Unopposed Mot. for Dismissal with Prejudice, City of

Miami v. Wells Fargo & Co., No. 1:13-cv-24508-WPD

(S.D. Fla. Jan. 30, 2020), ECF No. 117. Then the

City filed a suggestion of mootness in this Court.

The City’s dismissal of its suit with prejudice

means that there is no longer a live dispute between

the parties. United States v. Microsoft Corp., 138 S.

Ct. 1186, 1188 (2018) (per curiam). Wells Fargo

therefore agrees with the City that this case is now

moot. See Suggestion of Mootness 2-3.

B. This Court Should Vacate the Eleventh

Circuit’s Judgment.

“The established practice of the Court in dealing

with a civil case from a court in the federal system

which has become moot while on its way here * * * is

to reverse or vacate the judgment below and remand

with a direction to dismiss.” Munsingwear, 340 U.S.

at 39. Under Munsingwear, “[t]he principal condition to which [the Court] ha[s] looked is whether the

party seeking relief from the judgment below caused

the mootness by voluntary action.” U.S. Bancorp

Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24

(1994). When the party that prevailed in the lower

court caused the mootness through its own “unilateral action,” vacatur is clearly “in order.” Azar v.

4

Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam)

(internal quotation marks omitted); see, e.g., LG

Elecs., Inc. v. InterDigital Commc’ns, LLC, 572 U.S.

1056 (2014).

That “principal” condition for Munsingwear vacatur is indisputably satisfied here. While the petition

for certiorari was pending, the City unilaterally

moved for dismissal, rendering all proceedings in

this case moot. There was no agreement between the

parties to settle or dismiss this case. There were not

even any discussions between the parties regarding

settlement. Indeed, Wells Fargo knew nothing of the

City’s decision until the City told Wells Fargo it was

dropping the case, only one day after opposing certiorari and only days before a looming February 5, 2020

deadline to file an operative complaint in the district

court. Wells Fargo gave the City no consideration in

exchange for dismissing its suit. In fact, as Wells

Fargo’s petition made clear, it looked forward to

vindicating its position before this Court that the

City’s allegations failed to satisfy the Fair Housing

Act’s proximate cause requirement.

Pet. 21-36.

Simply put, Wells Fargo played no role in making

the Eleventh Circuit’s judgment unreviewable, and

the City does not contend otherwise. The City therefore “caused the mootness by voluntary,” “unilateral”

action. Bonner Mall, 513 U.S. at 24-25; see Garza,

138 S. Ct. at 1792. Having blocked this Court’s

review, the City ought not to “retain the benefit of

the judgment” below in future Fair Housing Act

cases it may bring. Garza, 138 S. Ct. at 1792 (internal quotation marks omitted). And Wells Fargo

5

should not suffer legal consequences from “a ‘preliminary’ adjudication” that the City unilaterally shielded from review. Camreta v. Greene, 563 U.S. 692,

713 (2011) (quoting Munsingwear, 340 U.S. at 40).

More generally, where the party seeking this

Court’s review was not responsible for mooting the

case, this Court’s usual practice is to vacate the

lower court’s judgment and opinion. LG Electronics

v. InterDigital Communications, LLC, is instructive.

There, the petition for writ of certiorari became moot

when the respondents—who had prevailed in the

Federal Circuit—withdrew the complaint that had

initiated International Trade Commission proceedings against the petitioners. Brief for the International Trade Commission in Opposition at 7, LG

Elecs., 572 U.S. 1056 (No. 13-796). The Commission—whose judgment in the case had been appealed

to the Federal Circuit—argued that denial of the

petition, rather than vacatur, was the appropriate

response. Id. at 8. Yet the Court granted certiorari

anyway, vacated the Federal Circuit’s judgment, and

remanded the case with instructions to dismiss it as

moot. LG Elecs., 572 U.S. at 1056. This Court has

followed that well-trod path time and again. See,

e.g., Blue Water Navy Vietnam Veterans Ass’n, Inc. v.

Wilkie, 139 S. Ct. 2740 (2019); Village of Lincolnshire

v. Int’l Union of Operating Eng’rs Local 399, 139 S.

Ct. 2692 (2019); Eisai Co. v. Teva Pharm. USA, Inc.,

564 U.S. 1001 (2011); Hollingsworth v. U.S. Dist.

Court for N. Dist. of California, 562 U.S. 801 (2010);

Radian Guar., Inc. v. Whitfield, 553 U.S. 1091

(2008); Lehman v. MacFarlane, 529 U.S. 1106 (2000);

6

Teel v. Khurana, 525 U.S. 979 (1998); Great W.

Sugar Co. v. Nelson, 442 U.S. 92, 93-94 (1979) (per

curiam). There is no reason to depart from that

practice here.

The City asserts that Wells Fargo is “unaffected”

by the continued existence of the decision below.

Suggestion of Mootness 6. But Wells Fargo is affected by the Eleventh Circuit’s decision. Wells Fargo is

litigating the same issue in other cases, including

within the Eleventh Circuit. See City of Miami

Gardens v. Wells Fargo & Co., No. 1:14-cv-22203FAM (S.D. Fla.);1 see also, e.g., City of Oakland v.

Wells Fargo & Co., No. 19-15169 (9th Cir.); City of

Sacramento v. Wells Fargo & Co., No. 2:18-cv-00416KJM-AC (E.D. Cal.); Prince George’s County v. Wells

Fargo & Co., No. 8:18-cv-03576-PJM (D. Md.); County of Cook v. Wells Fargo & Co., No. 1:14-cv-09548

1

The district court entered final judgment on the merits for

Wells Fargo, see City of Miami Gardens v. Wells Fargo & Co.,

328 F. Supp. 3d 1369 (S.D. Fla. 2018), but a panel of the

Eleventh Circuit has vacated the district court’s judgment and

remanded with instructions to dismiss for lack of subjectmatter jurisdiction. City of Miami Gardens v. Wells Fargo &

Co., 931 F.3d 1274, 1277-78 (11th Cir. 2019) (per curiam). The

Eleventh Circuit’s mandate has been withheld pending a

decision on the City of Miami Gardens’ petition for rehearing en

banc. See Order, City of Miami Gardens v. Wells Fargo & Co.,

No. 18-13152-AA (11th Cir. Sept. 27, 2019). In the event that

the district court proceedings in that case are reopened, Wells

Fargo would be severely prejudiced by the inability to seek

review of the “preliminary” adjudication that it sought to

challenge in this case if this Court denies vacatur.

7

(N.D. Ill.). If the Eleventh Circuit’s opinion is not

vacated by this Court, it will be binding precedent on

Wells Fargo (and everyone else) in any cases that

have been or will be filed in the Eleventh Circuit.

That is precisely the sort of harm that Munsingwear

and its progeny seek to avoid.2 See Camreta, 563

U.S. at 713 (“The point of vacatur is to prevent an

unreviewable decision ‘from spawning any legal

consequences,’ so that no party is harmed by what

we have called a ‘preliminary’ adjudication.” (emphasis added) (quoting Munsingwear, 340 U.S. at 40)).

As the amicus briefs attest, the Eleventh Circuit’s

decision threatens to unleash a wave of meritless

litigation under the Fair Housing Act and other

statutes. Br. for Amici Curiae Chamber of Commerce of the United States et al. 8-14. If the Eleventh Circuit’s now-unreviewable opinion stands,

municipalities are likely to bring additional suits

against financial institutions, including against

2

Bank of America, which also petitioned for a writ of certiorari

to review the Eleventh Circuit’s decision, would also be unfairly

prejudiced if the Eleventh Circuit’s judgment is not vacated. It,

too, is litigating similar issues against other plaintiffs, including within the Eleventh Circuit. See Cobb County v. Bank of

Am. Corp., No. 1:15-cv-04081-LMM (N.D. Ga.); City of Miami

Gardens v. Bank of Am. Corp., No. 1:14-cv-22202-KMW (S.D.

Fla.); see also County of Cook v. Bank of Am. Corp., No. 1:1402280 (N.D. Ill.). Other banks are facing similar suits. See,

e.g., City of Miami Gardens v. JPMorgan Chase & Co., No. 1:1422206-KMW (S.D. Fla.); City of Miami Gardens v. Citigroup

Inc., No. 1:14-22204-MGC (S.D. Fla.).

8

Wells Fargo. Br. for Amici Curiae American Bankers

Ass’n et al. 8.

Wells Fargo need not demonstrate a likelihood of

harm; the possibility of legal consequences suffices.

Vacatur, indeed, is proper even where legal consequences for the losing party are less likely than they

are here. For instance, in Camreta, the Court vacated the Ninth Circuit’s ruling that a warrant is required before interviewing a suspected child-abuse

victim at school where one of the petitioners remained as a child-protective-services worker, even

though the plaintiff became an adult and therefore

could not have brought a similar suit again. 563

U.S. at 710-711, 713-714. And in Alabama v. Davis,

446 U.S. 903, 903-904 (1980), the Court summarily

vacated a court of appeals’ judgment over a dissent’s

objection that there was no realistic possibility that

the judgment would spawn any legal consequences.

The Court should take a similar approach here and

vacate the judgment below.

C. The City’s Arguments Against Vacatur Are

Wrong.

1. The City’s principal argument against vacatur

appears to be that vacatur would frustrate the

percolation process prescribed by this Court. Suggestion of Mootness 4-8; Pet. App. 86a-87a. But the

Court rejected essentially that argument in Camreta.

The plaintiff in that Section 1983 case argued that

mootness should not lead to vacatur of the court of

appeals’ constitutional holding because it would

“ ‘undermine’ the Court of Appeals’ choice to ‘decide

[a] constitutional questio[n]’ to govern future cases.”

9

563 U.S. at 713 (alterations in Camreta). The Court

found that the plaintiff’s argument “reveal[ed] the

necessity of” vacatur. Id. Because the decision

would become the law of the circuit and bind future

parties, “[v]acatur * * * rightly ‘strips the decision

below of its binding effect.’ ” Id. (quoting Deakins v.

Monaghan, 484 U.S. 193, 200 (1988)).

Moreover, vacatur will not inhibit percolation in

the lower courts. If anything, vacatur would further

it because district courts in the Eleventh Circuit and

future panels of the Eleventh Circuit would be able

to afford the vacated opinion whatever persuasive

value it merits without needing to treat it as binding

precedent. Affording courts liberty to depart from

the Eleventh Circuit’s reasoning encourages further

judicial analysis of the issues raised in this case—it

does not stifle it.3

The City cites Bonner Mall for the unremarkable

proposition that, where both parties cause a case to

become moot, judicial precedents should generally

not be vacated unless the public interest would be

served by vacatur. Suggestion of Mootness 5. In

3

Indeed, another plaintiff city in a similar case (represented by

the same counsel) cited the value of allowing percolation in the

district courts unencumbered by binding circuit precedent when

it urged a district court not to certify its order denying Wells

Fargo’s motion to dismiss for interlocutory review. See Opposition to Mot. to Amend at 7-8, City of Oakland v. Wells Fargo

Bank, N.A., No. 3:15-cv-04321-EMC (N.D. Cal. July 27, 2018),

ECF No. 159 (arguing that “the issue has barely begun the

process of percolation in the nation’s District Courts”).

10

Bonner Mall, this Court declined to vacate the Ninth

Circuit’s judgment where the losing party voluntarily

abandoned its request for Supreme Court review by

agreeing to settle the case. 513 U.S. at 26, 29. The

mootness in that case was of the petitioner’s own

design. Having forfeited the ability to seek certiorari

review, the petitioner was not entitled to “the secondary remedy of vacatur.” Id. at 27. Here, by

contrast, Wells Fargo could not have prevented the

City from mooting the case. Because the City’s

actions to moot the case were unilateral, vacatur is

Wells Fargo’s sole available remedy to rid itself of

the Eleventh Circuit’s opinion and judgment. Bonner Mall supports vacatur in this case.

2. Next, the City asserts that this Court “would

have” denied certiorari had the City not rendered

this case moot. Suggestion of Mootness 8-10. Although Wells Fargo believes the Court would have

granted certiorari had this case not become moot, see

Pet. 2-5, 13-39, the parties’ predictions are irrelevant

to whether certiorari should be granted now. See

Garza, 138 S. Ct. at 1793 (“[T]he fact that the relevant claim here became moot before certiorari does

not limit this Court’s discretion.”). The Court need

not discern whether it would have granted certiorari

in a counterfactual world, and attempting to do so

would waste the Court’s efforts. This Court routinely

grants certiorari for the limited purpose of vacating

the lower court’s judgment without ever finding that

certiorari would have been granted had the case not

become moot. E.g., Blue Water Navy Vietnam Veterans Ass’n, 139 S. Ct. 2740; Village of Lincolnshire,

11

139 S. Ct. 2692; LG Elecs., 572 U.S. 1056; Eisai, 564

U.S. 1001; Hollingsworth, 562 U.S. 801; Radian

Guar., 553 U.S. 1091; Lehman, 529 U.S. 1106; Teel,

525 U.S. 979; Nelson, 442 U.S. at 93-94.

3. Relying only on lower-court precedent, the City

next asserts that Munsingwear vacatur is reserved

for final judgments. Suggestion of Mootness 11-12.

No such rule exists in this Court. Nor would such a

rule make sense. Unlike interlocutory district court

orders, published opinions of the courts of appeals

constitute binding precedent if not vacated. The

supposed “consensus” (Suggestion of Mootness 11)

among the courts of appeals regarding vacatur of

interlocutory district court orders is inapposite.

Unsurprisingly, then, this Court has routinely vacated decisions in an interlocutory posture that

became moot. That happened in Radian Guaranty,

553 U.S. 1091, where the district court had granted

summary judgment for the defendant, the court of

appeals reversed and remanded, the defendant

petitioned for certiorari, and then the plaintiff voluntarily dismissed its claims; this Court then vacated

the decision below. See Whitfield v. Radian Guar.,

Inc., 501 F.3d 262, 270-271 (3d Cir. 2007); Suggestion of Mootness at 1-2, Radian Guar., 553 U.S. 1091

(No. 07-834). Likewise in Alvarez v. Smith, 558 U.S.

87, 90-91, 97 (2009), where the district court had

granted a motion to dismiss, the court of appeals

reversed, and this Court then vacated after determining that the case had become moot. See also, e.g.,

Garza, 138 S. Ct. at 1793; Harper ex rel. Harper v.

Poway Unified Sch. Dist., 549 U.S. 1262 (2007).

12

4. Finally, the City’s preemptive opposition to vacatur is itself revealing. As Wells Fargo and amici

make clear, the practical effects of the Eleventh

Circuit’s decision could be staggering. Pet. 37; Br.

for Amici Curiae Chamber of Commerce of the United States et al. 8-14; Br. for Amici Curiae American

Bankers Ass’n et al. 8; Br. for Amicus Curiae Cato

Institute 19-22; Br. for Amicus Curiae DRI–The

Voice of the Defense Bar 19-21. If the Eleventh

Circuit’s opinion is not vacated, the City may well

stand to benefit as a plaintiff in other cases under

the Fair Housing Act or other statutes that encompass similar proximate-cause principles. Having

unilaterally insulated that judgment from this

Court’s review, equity demands the City not be

allowed to retain the benefit of that judgment at

Wells Fargo’s expense. Garza, 138 S. Ct. at 1792 (“It

would certainly be a strange doctrine that would

permit a plaintiff to obtain a favorable judgment,

take voluntary action that moots the dispute, and

then retain the benefit of the judgment.” (internal

quotation marks omitted)). That the City would

spend so much time protesting vacatur when it

claims that vacatur is irrelevant tells the Court all it

needs to know about the practical importance of the

decision below.

13

CONCLUSION

The Court should grant the petition for writ of certiorari and vacate the Eleventh Circuit’s judgment

below.

Respectfully submitted,

PAUL F. HANCOCK

OLIVIA KELMAN

K&L GATES LLP

200 S. Biscayne Blvd.,

Ste. 3900

Miami, FL 33131

(305) 539-3300

ANDREW C. GLASS

K&L GATES LLP

One Lincoln St.

Boston, MA 02111

(305) 539-3300

NEAL KUMAR KATYAL

Counsel of Record

SEAN MAROTTA

MICHAEL D. GENDALL

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

JOHN F. O’SULLIVAN

JAMES L. VANLANDINGHAM

HOGAN LOVELLS US LLP

600 Brickell Ave., Ste. 2700

Miami, FL 33131

(305) 459-6500

Counsel for Petitioners

FEBRUARY 2020