Amicus Curiae Brief — Bank of Am. Corp. v. City of Miami, 136 S. Ct. 2544 (2016) (No. 15-1111)

DISTRIBUTED

Nos. 15-1111, 16-1112

3n the

Supreme Court of the Anited States

ee tO ee

BANK OF AMERICA CORPORATION, ET AL.,

Petitioners,

Vv.

CITY OF MIAMI, FLORIDA,

Respondent.

WELLS FARGO & CO. and WELLS FARGO BANK, N.A.,

Petitioners,

Vv

CITY OF MIAMI, FLORIDA,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Eleventh Ciscuit

BRIEF OF CURRENT AND FORMER

MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

THOMAS J. HENDERSON

COUNSEL OF RECORD

SABA BIREDA

FELICIA GILBERT

JAMES F.. RICHARDSON

SANFORD HEISLER, LLP

1666 CONNECTICUT AVE. NW, SUTTE 300

WASHINGTON, DC 20009

(202) 499-5200

THENDERSON@SANFORDHEISLER.COM

OCTOBER 7, 2016 COUNSEL FOR AiiC] CURIAE

SUPREME COURT PRESS ¢« (s880686705 ¢ Bosron, MASsAcaUaETrs

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................0.20c0000 ill

STATEMENT OF AMICI CURIAE .....0000 I

SUMMARY OF ARGUMENT ....00.0.. 2. 2

EEE TTC 5

I. CONGRESS INTENDED THE FAIR HOUSING

ACT TO ADDRESS A WIDE SCOPE OF ACTIVITY

AND REMEDY A RANGE OF CONDITIONS

RELATED TO DISCRIMINATION IN HOUSING ....... 5

Il. CONGRESS INTENDED THE FAIR HOUSING

AcT TO HAVE A BROAD ZONE OF INTERESTS

IN ORDER TO EFFECTUATE ROBUST

A. Congress Intended to Extend Broad

Standing Under the Fair Housing Act

When It Was Enacted in 1968.................. 12

B. Congress Intended to Continue Broad

Standing in the Fair Housing Amend-

aio crccicsricicsentecsenerentes 18

C. To the Extent Comparisons to Title VII

Are Helpful in Understanding the

Scope of the FHA’s Zone of Interests,

They Require an Expansive Inter-

pretation of the FHA’s Zone of Interests 24

Ill. THE FHA’s ZONE OF INTERESTS IS

SUFFICIENTLY EXPANSIVE TO ENCOMPASS

THE CrTY’sS CLAIMS AND ITS ABILITY TO

a sesnienenta 28

a

TABLE OF CONTENTS — Continued

Page

A. The Court's Precedent and _ the

Legislative History of the FHA

Demonstrate that the FHA Incorporates

a Zone of Interests Sufficiently Wide to

Encompass the City’s Claims................... 30

B. The City’s Injuries Related to Its

Diminished Revenues and Heightened

Expenses Are Neither Marginally

Related to Nor Inconsistent with the

C. Injuries to the City’s Ability to Foster

Access to Fair Housing Are Neither

Marginally Related to Nor Inconsistent

with the Purposes of the FHA.................. 34

D. Robust Enforcement by Municipalities

Is Necessary to Realize the FHA’s

| ETE CE EEE CeNE SES Ar 35

TT AT Ce Se A ET 36

APPENDIX: List of Amici Curiae.............. App.1

1

TABLE OF AUTHORITIES

Page

CASES

Air Courier Conf. v. Am. Postal Workers Union,

le, AE GRIN dae ea 30

Bennett v. Spear,

ESET Nee 27

Block v. Cmty. Nutrition Inst.,

SS 29

Brown v. Bd. of Education,

A ree 6

Clarke v. Sec. Indus. Ass’n,

A 4, 29

Gladstone, Realtors v. Vill. of Bellwood,

a ncnsneuel passim

Green v. L.A. Cty. Superintendent of Sch.,

883 F.2d 1472 (9th Cir. 1989) 000... 26

Havens Realty Corp. v. Coleman,

TE passim

Lexmark Int'1, Inc. v. Static Control

Components, 134 S.Ct. 1377 (2014)...... 25, 27, 29

Linmark Assoc., Inc. v. Willingboro,

CT nh 32

Match- E- Be-Nash-She- Wish Band of

Pottawatomi Indians v. Patchak,

Si Ne 29

Price Waterhouse v. Hopkins,

ni ccnenccsocccnssnccesesconncessness 28

hd

TABLE OF AUTHORITIES—Continued

Page

Texas Dep't. of Housing & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

Ee 31, 34, 35

Thompson v. N. Am. Stainless, LP.

A passim

Trafficante v. Metro. Life Ins. Co.,

coun passim

Wards Cove Packing Co. v. Atonio,

a 27

Yates v. United States,

i enicienati 25

STATUTES

GB UTE. GB BBBRO GERAD ....0..0000-<0000ccccecccscceccesscesecess 26

I osc cnccccicerencsnsesonsseeneninnenen 26

I eeentiliimatedl 5, 35

ASS AREA ESAS 5

MN eee 5

LC RC RE EET 5

ET NCO a 24

Civil Rights Act of 1964,

Pub. L. No. 88-352, 78 Stat. 241................... 6, 26

Civil Rights Act of 1968,

Pub. L. No. 90-284, 82 Stat. 73.................... 17, 25

Fair Housing Amendments Act of 1988,

Pub. L. No. 100-430, 102 Stat. 1619.......... passim

—

TABLE OF AUTHORITIES—Continued

Page

Voting Rights Act of 1965,

Pub. L. No. 89-110, 79 Stat. 437 ...0......0.cccccc00 6

JUDICIAL RULES

TLR ALLE 1

a oe 1

CONGRESSIONAL RECORD

113 Cong. Rec. 22,841 (1967).................cccccccccceseeeeees 10

114 Cong. Rec. 2270 (1968) ..................-:ccssccssseeeseees 13

114 Cong. Rec. 2271 (1968) ..............ccccccccceeeeeees 13, 14

114 Cong. Rec. 2274 (1968) 0............cccccccccccceeee passim

114 Cong. Rec. 2275 (1968) .................cccccccccesecceeeseeeees 7

114 Cong. Rec. 2276 (1968) ....................ccccccceeeseeeees 6,7

i i I vin cccsccncccsecccsecccsssccsesseseonsns )

114 Cong. Rec. 2526 (1968) ...............:ccccccccceseseeeeeeeees 7

114 Cong. Rec. 2706 (1968) ..............0000ccccccccceees 14, 30

114 Cong. Rec. 3358 (1968) .................0ccccccccceeeeeee 9, 10

114 Cong. Rec. 4570 (1968) ................ccccccccccceeseeeseee 14

114 Cong. Rec. 4572 (1968) ...............ccccccccesceeeceeeeeees 15

114 Cong. Rec. 4573 (1968) ......0.........ccccccccececeeeeeeeees 15

114 Cong. Rec. 4575 (1968) ................ccccccccccsceeseeeeees 16

114 Cong. Rec. 4834 (1968) ..................ccccccceeseeeeeeeees 10

114 Cong. Rec. 9582 (1968) ...............c.cccccccesseeseeeeees 11

TABLE OF AUTHORITIES—Continued

Page

ee Be I civeiicscctcvececovencccscessescssesenss )

134 Cong. Rec. 19711 (1988)..................:ccccccceseceseeees 24

SER: PIE eccccccccscccccescsesesccecessssscnens 22

134 Cong. Rec. 7178 (1987) ....... Cae MOE One 22, 23

FS SL 28

Civil Rights Act of 1967: Hearings Before the

S. Subcomm. on Const. Rights of the S.

Comm. on the Judiciary,

Uy Ge, GF GOP ooceceocnncccncecccesccccccesccssccessccees 9

Fair Housing Act of 1967: Hearings Before the

S. Subcomm. on Hous. & Urban Affairs of

the S. Comm. on Banking & Currency,

TT 8, 13

Fair Housing Amendments Act of 1987

Hearings Before the S. Subeomm. on the

Const. of the S. Comm. on the Judiciary,

100th Cong. 537 (1987) .................0cccceceeceeeseeeees 22

H.R. Rep. No. 96-865 (1980) ....................0ccc000- 18, 20

H.R. Rep. No. 100-711 (1988) ........cccccccccesceeeee0e- 19, 23

eT .. . cnocscdnssscotoussnnsccens 19, 20

I cieicscsnsenanisinetsicdindetenatesesguuteil 27

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Ben A. Franklin,

Army Troops in Capital as Negroes Riot,

ee oc ccnccccscnnsscecscnessee 16

Hon. Charles McC. Mathias, Jr. & Marion

Easy Row to Hoe, 4 Cityscape, no. 3, 1999 .... 14, 15

Jean Eberhart Dubofsky,

Fair Housing: A Legislative History and a

Perspective, 8 Washburn L.J. 149 (1969)... 16, 17

Report of the National Advisory Commission

on Civil Disorders (1968) ....................000.000+- 7, 10

Robert G. Schwemm,

Private Enforcement and the Fair

Housing Act, 6 Yale L. & Pol’y Rev. 375

TS a 11, 17

Robert G. Schwemm,

Standing to Sue in Fair Housing Cases,

41 Ohio St. LJ. 1 (1980)... cece 12

U.S. Comm'n on Civil Rights,

Housing. A Report of the Commission

ile ceed ee LA ce ERs ee 6, 7,8

EEG Ceti

STATEMENT OF AMICI CURIAE!

Amici are current and former Members of

Congress, including some who participated in the

debates leading up to the passage of the Fair

Housing Act of 1968 (“FHA” or the “Act”) or its 1988

amendments.2 Amici include former Senator Walter

F. Mondale, co-sponsor of the original Act. Amicé

support the goals of the Act to promote fair housing

throughout the nation and recognize the pivotal role

the Act has played in facilitating fair housing in

America’s cities. Amici agree that the Act’s goals

require the law to provide a strong enforcement

scheme, including allowing a range of potential

plaintiffs to bring suit. Amici contend, therefore, that

the zone of interests under the Act is broad, and

support the Eleventh Circuit’s conclusion, that the

zone of interests encompasses the City of Miami's

(“the City”) claims.

The interests of Amici are to communicate the

intent of Congress in enacting the FHA. The

legislative history of the Act, of which Amuci are

uniquely familiar, indicates that Congress intended

the law to address a wide scope of activity and remedy

1 This brief is filed with the written consent of all parties

pursuant to this Court’s Rule 37.2(a). Copies of the requisite

consent letters have been filed with the Clerk. Pursuant to this

Court's Rule 37.6, no counsel for a party authored this brief in

whole or in part and no person other than the Amuci Curiae, its

members, or its counsel, made a monetary contribution to fund

the preparation or submission of the brief.

2 A complete list of Amici appears in an appendix to this brief.

a broad scope of conditions related to discrimination

in housing through administrative enforcement and

litigation by parties affected by discrimination. Con-

sistent with Congress’s intent, a diverse group of

plaintiffs, including municipalities, has pursued relief

for violations of the Act through private litigation.

This case demonstrates the importance of this vital

tool for plaintiffs to fight discrimination. Amici

respectfully request that the Court affirm the

Eleventh Circuit’s decision and preserve the Act’s

broad zone of interests to ensure vigorous enforce-

ment of the Act continues.

—

SUMMARY OF ARGUMENT

The legislative history of the Fair Housing Act

demonstrates that Congress intended to confer broad

standing to sue for a wide range of activities made

unlawful. Congress enacted the Fair Housing Act with

the intent to eradicate one of the most persistent

forms of discrimination—discrimination related to

housing. Congress understood that the Act’s ambitious

goals would require an equally ambitious enforcement

scheme. The Act allowed anyone to bring a cause of

action to enforce the law in the appropriate federal or

state court. Congress intended for a wide range of

litigants to be able bring suit regarding a wide range

of interests. As this brief will demonstrate, the Act’s

zone of interests is extremely broad—a fact substan-

tiated by the legislative history of the Act and noted

by this Court.

Congress considered fair housing legislation

against the backdrop of a country in tumult. Housing

discrimination led to significant residential segregation,

with an increasing number of African Americans forced

to live in distressed inner cities with few employment

and educational opportunities. The deplorable condi-

tions in the country’s urban centers sowed the seeds

of unrest and America’s cities experienced severe

rioting over a two-year period from 1965 to 1967.

Congress recognized that fair housing legislation was

necessary to address the conditions that gave rise to

the country’s “urban crisis.” Furthermore, Congress

knew the legislation would require a_ robust

enforcement scheme to ensure its effectiveness.

Congress included two pathways for private

enforcement in the 1968 Act: section 810 allowed

“lalny person” who claimed to be injured, or believed

injury would occur in the future, by a discriminatory

housing practice to file a complaint with the

Department of Housing and Urban Development

(HUD), while section 812 provided that the Act’s

provisions could “be enforced by civil actions” in

appropriate federal, state, or local courts. This broad

language regarding standing connotes Congress’s

intent to effectuate enforcement by expanding the

scope of interests and potential plaintiffs covered by

the Act. Such a broad zone of interests was necessary

to carry out Congress’s purposes in passing the Act:

to eliminate housing discrimination and _its

attendant negative effects.

Congress's intent to allow for a broad zone of

interests under the Act is further established by its

enactment of the Fair Housing Amendments Act of

1988. In amending the 1968 Act to include a

definition of “aggrieved person” for purposes of

bringing private suit, Congress stated, several times,

that it did so to reflect the Court’s confirmation of the

broad standing to enforce the original Act. See

Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91

(1979). Congress expressed no disagreement with the

Court’s interpretation and defined aggrieved person

as broadly as in the original Act. Indeed, it rejected

attempts to narrow the definition and strengthened

its private enforcement provisions.

The Act’s zone of interests clearly encompasses

the City’s claims and its ability to enforce the Act.

This Court has “described the ‘zone of interests’ test

as denying a right of review ‘if the plaintiffs interests

are so marginally related to or inconsistent with the

purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to

permit the suit.” Thompson v. N. Am. Stainless, LP.

562 U.S. 170, 178 (2011) (quoting Clarke v. Sec. Indus.

Ass'n, 479 U.S. 388, 399-400 (1987)). The City’s

claims meet this standard. In past cases considering

the FHA’s zone of interests, this Court has

recognized a range of causes of action from a variety

of plaintiffs, including municipal plaintiffs, see

Bellwood, 441 U.S. 91, and plaintiffs that were not

direct objects of discriminatory conduct, see

Trafficante v. Metro. Life Ins. Co., 409 U.S. 205

(1972), demonstrating that the City’s claims fall

squarely within the scope of the statute intended by

Congress. Indeed, the Court has_ specifically

recognized the City’s primary injury—diminished tax

revenues stemming from decreased property values—as

a theory of liability for municipalities under the Act.

See Bellwood, 441 U.S. at 110-11. Indeed, enforcement

by municipal plaintiffs like the City is essential to

realizing the broad remedial and deterrent purposes

Congress intended the FHA to fulfill.

a: ae

ARGUMENT

I. CONGRESS INTENDED THE FAIR HOUSING ACT TO

ADDRESS A WIDE SCOPE OF ACTIVITY AND REMEDY

A RANGE OF CONDITIONS RELATED TO DISCRIMI-

NATION IN HOUSING

The purpose of the Fair Housing Act (Title VIII

of the Civil Rights Act of 1968) is to “provide, within

constitutional limitations, for fair housing throug-

hout the United States.” 42 U.S.C. § 3601 (2012). The

law prohibits discrimination in virtually every aspect

of residential real estate from advertisements of

housing available for rent or sale to home mortgage

lending. Jd. §§ 3604-3606. The law’s extensive reach

reflects Congress's desire to provide every individual

with the opportunity to choose his or her housing and

to enjoy the benefits accruing from that choice,

without regard to race, color, religion, sex, familial

status, national origin, or disability. In passing the

Act, Congress sought not only to eliminate housing

discrimination but also to facilitate access to

economic and_ social opportunities for racial

minorities and stem the deterioration of America’s

urban areas.

Congress began considering fair housing legis-

lation at a critical juncture in the nation’s history. By

1966, when President Lyndon B. Johnson first proposed

a federal fair housing bill, the United States was

nearing the end of tlie nation’s most active period of

civil rights legislation and litigation. Twelve years

earlier, the Court had issued its historic decision in

Brown v. Board of Education, 347 U.S. 483 (1954).

Congress had passed two major pieces of civil rights

legislation: the Civil Rights Act of 1964, Pub. L. No.

88-352, 78 Stat. 241, prohibiting discrimination in

public accommodations (Title II), discrimination in

federally funded programs (Title VI), and discrimi-

nation in employment (Title VID, and the Voting

Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437,

guaranteeing the right to vote for every American.

The push for fair housing legislation came in

response to a growing sense of disillusionment regar-

ding the country’s progress in the arena of civil rights

among racial minorities, and, in particular, among

African Americans in the nation’s urban centers.

America’s cities had experienced an explosive growth

in their black populations in the years following

World War II. See U.S. Comm’n on Civil Rights,

Housing: A Report of the Commission (1961). Discri-

mination in the housing market severely limited the

ability of racial minorities to rent or buy homes

outside of increasingly crowded, blighted, and segre-

gated neighborhoods, amounting to “the confinement

of minority group Americans to ‘ghetto jails” in the

words of Senator Walter F. Mondale, who sponsored

Amendment 524 (S.1358) (the original version of the

Fair Housing Act) to H.R. 2516, 114 Cong. Rec. 2274

(1968). Housing discrimination also had a “serious”

and “adverse” effect on employment and educatioral

opportunities in the inner cities. 114 Cong. Rec. 2276

(1968). The lack of desirable housing available to

African Americans, paired with a dearth of employment

and educational opportunities, created a palpable

sense of anger in black neighborhoods across the

country. Senator Mondale, in introducing Amend-

ment 524, spoke of several witnesses who testified

before Congress that the “insult of racially segre-

gated housing patterns creatled] a sense of rage and

frustration and a crisis which contributled) enor-

mously to the explosiveness” of urban communities. 114

Cong. Rec. 2275 (1968). The “explosiveness” manifested

in multiple incidents of civil unrest from Watts to

Newark between 1965 and 1967. See Report of the

National Advisory Commission on Civil Disorders 20-

61 (1968). The nation faced an “urban crisis” borne of

the continued existence of racial discrimination in

almost every facet of African Americans’ lives.

Congress found that nonwhites not only had

difficulty finding available housing outside of the

inner cities, they also encountered discrimination in

their attempts to secure financing to buy a home.

Senator Edward W Brooke, who co-sponsored Amend-

ment 524 with Senator Mondale, quoted a 1961 U.S.

Commission on Civil Rights report that “found

evidence of racially discriminatory practices by

mortgage lending institutions throughout the country.”

114 Cong. Rec. 2526 (1968). The report detailed

discrimination in the mortgage industry, such as

banks’ refusal to grant mortgages to minorities

seeking to buy homes in certain neighborhoods and

the inclusion of unfavorable terms in mortgages

offered to minorities. See U.S. Comm'n on Civil Rights,

Housing. A Report of the Commission (1961). “Mortgage

credit, upon which homeownership so largely depends,”

the report concluded, “is often denied to members of

minority groups for reasons unrelated to their indivi-

dual characters or credit worthiness, but turning

solely on race or color.” /d. at 141.

In developing fair housing legislation, Congress

sought to address both the tangible and psychological

impact of discrimination on racial minorities. As

Senator Mondale stated on the Senate floor: “The

barriers of housing discrimination stifle hope and

achievement, and promote rage and despair; they tell

the Negro citizen trapped in an urban slum, there is

no escape, that even were he able to get a decent

education and a good job, he would still not have the

freedom other Americans enjoy to choose where he and

his family will live.” 114 Cong. Rec. 2274 (1968). The

knowledge of being barred from renting or buying

housing based only on their race deprived minorities

of a sense of dignity and agency intrinsic to full

participation in American society.3 It was this denial

that fueled the urban crisis.

Only a comprehensive fair housing bill, aimed at

could counteract the disillusionment felt by millions

of Americans; as Senator Edward M. Kennedy stated,

“(tlhe fact that we act can lend immediate hope, can

give instant proof of our dedication to the promise of

3 See, eg. Fair Housing Act of 1967: Hearings Before the S.

Subcomm. on Hous. & Urban Affairs of the S. Comm. on

Banking & Currency, 90th Cong. 180 (1967) (statement of

Algernon Black) (“Deprivation, despair, and desperation, are

the result of being shut out. Deeper than the material and

physical deprivation is the humiliation and rejection and what

this does to human beings.”).

equality and fairness .. what better antidote to riots

can there be than hope and promise.” Civil Rights Act

of 1967: Hearings Before the S. Subcomm. on Const.

Rights of the S. Comm. on the Judiciary, 90th Cong.

65 (1967). Representative William Ryan urged the

House to ratify the Senate-passed H.R. 2516, stating,

“[t}his bill means more than the opportunity for

Negroes to acquire decent housing. It should mean a

fundamental! change in attitude which must underlie

and support everything else we do to achieve the aim

of an integrated society.” 114 Cong. Rec. 9591 (1968).

Congress also knew that fair housing legislation

was necessary to address the unrelenting challenges

faced by overpopulated, and increasingly under-

resourced, cities. See Br. of Amici Curiae the City and

County of San Francisco, the City of Los Angeles,

and Other Jurisdictions. Senator Brooke remarked

that as a result of the exodus of whites from cities to

the suburbs, “cities are breaking down behind

them great leadership, competition in schools, the

tax base—all go down, as property devaluates in the

urban ghettos.” 114 Cong. Rec. 2283 (1968). Senator

Mondale cited the “[dleclining tax base,” “poor sani-

tation,” and “urban squalor” present in America’s cities

that would persist without fair housing legislation.

114 Cong. Rec. 2274 (1968). Senator Philip Hart

emphasized the need for Congress to alleviate cities

of the burden of segregation by reading into the record

a letter from President Johnson stating that “[mlino-

rities have been artificially compressed into ghettoes

where’ .city administrations are burdened with

rising social costs and falling tax revenues.” 114

Cong. Rec. 3358 (1968). The President’s letter urged

Congress to take action: “Fair housing practices .

10

are essential if we are to relieve the crisis in our

cities.” /d.

In the midst of the Senate’s final deliberations

on the fair housing bill, on February 29, 1968, the

National Advisory Commission on Civil Disorders,

commonly referred to as the “Kerner Commission,”

released its landmark report. The report confirmed

Congress’s findings regarding the impact of housing

discrimination on urban communities. The Commis-

sion documented the dismal conditions in black

neighborhoods in urban areas—including higher

crime rates, poor health outcomes, unsanitary

conditions, and blight. See Report of the Nationa/

Advisory Commission on Civil Disorders, 133-141

(1968). Senator Mondale introduced the Commission's

findings into the record, noting that the Commission's

report was the “most searching, most profound study

ever made of the problem of the American cities” and

that the Commission “{came] out strongly for a fair

housing measure.” 114 Cong. Rec. 4834 (1968).

Congress had a broader and deeper purpose in

passing the Act than to guarantee integration in every

community in the country. As Senator Mondale

acknowledged, “[dlispersal and racial balance [was]

not the primary goal and motivation” of the proposed

legislation. 113 Cong. Rec. 22,841 (1967). Instead,

the Act would “enable every American to buy a

decent home wherever he wishes in a neighborhood

of his choice in accordance with his income level and

personal desires and needs.” /d Furthermore, Senator

Mondale declared, “fair housing legislation is a basic

keystone to any solution of our present urban crisis.”

114 Cong. Rec. 2274 (1968). Representative Herbert

1]

Tenzer said, in passing the Act, that Congress would

commit to “mobilize our resources at every level to

meet the challenge of the ghetto.” 114 Cong. Rec.

9582 (1968). Throughout debate and eventual

passage of the Act on April 10, 1968, Congress

repeatedly acknowledged the breadth of the

challenges, inextricably related but not isolated to

individual acts of discrimination, it intended the Act

to address.

Il. CONGRESS INTENDED THE FAIR HOUSING ACT TO

HAVE A BROAD ZONE OF INTERESTS IN ORDER TO

EFFECTUATE ROBUST ENFORCEMENT

The legislative history of the Fair Housing Act

indicates that Congress intended the Act to have far-

reaching effects on the lives of racial minorities and

to spur a progressive transformation of urban

communities. In enacting the law in 1968, Congress

developed a robust enforcement mechanism for the

Act to ensure it would accomplish the goals of eradi-

cating housing discrimination, increasing economic and

social opportunities for racial minorities, and amelio-

rating the harsh conditions of the inner cities.4 The

Act allowed private litigants to seek enforcement in

federal court and also provided an administrative

process for those who suffered any injury under the

Act.

4 See Robert G. Schwemm, Private Enforcement and the Fair

Housing Act, 6 Yale L. & Pol'y Rev. 375, 383 (1988) (“Housing

was then and still is the last great frontier of civil rights and

the area most resistant to legal change. Congress could not

have been so cynical as to put the burden of accomplishing this

enormous task of the highest national priority entirely on the

shoulders of the individual victims of discrimination.”).

12

The FHA's enforcement provisions were broad

both in the type of litigants who could bring suit or

file a complaint and the scope of interests covered.

Congress chose not to limit standing under the Act’s

enforcement provisions because it wanted to leave

the door open for suits and complaints initiated by a

variety of litigants, including residents of communities

affected by discrimination,5 fair housing organizations,®

and municipalities.?7 Again, in 1988, following a series

of decisions from the Supreme Court recognizing

Congress’s intent to provide broad standing to enforce

the Act,8 Congress reaffirmed its intent that the Act

encompass a wide range of interests related to fair

housing and allow a wide range of plaintiffs to bring

suit.

A. Congress Intended to Extend Broad Standing

Under the Fair Housing Act When It Was

Enacted in 1968

1. Fair Housing Legislation Is Proposed

The hearings on the early fair housing proposals

produced significant evidence demonstrating the

5 See Gladstone, Realtors v. Vill. Of Bellwood, 441 U.S. 91

(1979); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972).

6 See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).

1 See Bellwood, 441 U.S. at 109-11; see also Robert G. Schwemm,

Standing to Sue in Fair Housing Cases, 41 Ohio St. L.J. 1, 21

(1980) (“ Title VIII's heavy reliance on private complainants for

its enforcement reflects a congressional desire to give standing

to sue to a wide range of potential plaintiffs.”).

8 See Trafficante, 409 U.S. at 209; Bellwood, 441 U.S. at 109;

Havena, 455 U.S. at 372.

13

“importance,” “necessity,” and “workability” of the

legislation that would eventually become the Fair

Housing Act. 114 Cong. Rec. 2274 (1968). On February

6, 1968, Senators Mondale and Brooke proposed a fair

housing amendment, Amendment No. 524, to the

larger civil rights bill being debated by the Senate,

H.R. 2516.

During the Congressional hearings on proposed

fair housing legislation, several witnesses advocated

for Congress to build a strong enforcement scheme

into the Act. See Fair Housing Act of 1967: Hearings

Before the S. Subcomm. on Hous. & Urban Affairs of

the S. Comm. on Banking & Currency, 90th Cong. 1

(1967). Attorney General Ramsey Clark urged that

“vigorous and effective enforcement” would bring

“substantial progress in housing desegregation in our

major metropolitan areas and elsewhere in the

country.” /d. at 15. Another witness warned that past

experience with federal housing policies indicated

that “adequate machinery to provide immediate

relief is vital.” /d. at 81 (statement of Frankie M.

Freeman, Member, U.S. Commission on Civil

Rights). In response, the Mondale-Brooke amend-

ment vested significant enforcement power in HUD

including the power to investigate complaints, hold

evidentiary hearings, and issue cease-and-desist

orders to any party that violated the Act.9 The

amendment allowed “any person who claims to have

been injured by a discriminatory housing practice or

who believes that he will be irrevocably injured by a

discriminatory housing practice that is about to occur

(hereafter, ‘person aggrieved’)” to file a charge with

9 See 114 Cong. Rec. 2270-71 (1968).

14

the HUD Secretary, and, ultimately, to file a private

cause of action.!0 The amendment did not require

potential plaintiffs to complain of a specific injury,

nor did it specify that potential plaintiffs had to be

bona fide home seekers. This broad definition of

“person aggrieved” reflected Congress’s interest in

providing standing to anyone who could claim to be

injured by housing discrimination, whether directly or

indirectly. The definition also demonstrates Congress’s

intent that the Act protect the “whole community,”

not just racial minorities, from the harms resulting

from housing discrimination. See 114 Cong. Rec. 2706

(1968) (statement of Sen. Jacob Javits). Accordingly,

the Act could be enforced by members of the whole

community. !1

The Mondale-Brooke amendment was stymied by

filibuster for 10 days. Hon. Charles McC. Mathias,

Jr. & Marion Morris, Fair Housing Legislation: Not

an Easy Row to Hoe, 4 Cityscape, no. 3, 1999, at 25. On

February 28, 1968, Senator Everett Dirksen introduced

an alternative fair housing proposal in the hopes of

obtaining enough votes for cloture of debate.!2 The

Dirksen amendment was substantively similar to the

10 114 Cong. Rec. 2271 (§11(a)) (1968).

11 See Trafficante, 409 U.S. at 211 (“The person on the

landlord’s blacklist is not the only victim of discriminatory

housing practices; it is, as Senator Javits said in supporting the

bill, the ‘whole community’ We can give vitality to § 810(a)

only by a generous construction which gives standing to sue to

all in the same housing unit who are injured by racial

discrimination. ”).

12 114 Cong. Rec. 4570 (1968).

15

Mondale-Brooke amendment except that it removed

much of the enforcement power granted to HUD. Jd.

The Dirksen proposal left in place the definition

of “person aggrieved” from the Mondale-Brooke

amendment for purposes of filing a complaint with

HUD: “any person who claims to have been injured

by a discriminatory housing practice or who believes

that he will be irrevocably injured by a discrimi-

natory housing practice that is about to occur

(hereafter, ‘person aggrieved’) may file a complaint

with the Secretary.”13 The Dirksen amendment also

authorized the Attorney General to initiate “pattern

or practice” suits or suits regarding issues of “general

public importance.”!4 Finally, the proposal provided

an alternative enforcement route, “Enforcement by

Private Persons,” by which any plaintiff could bring a

private cause of action under the Act for violations of

the FHA related to discrimination in the rental or

sale of housing, discrimination in the financing of

housing, and discrimination in the provision of

brokerage services: “The rights granted by sections

203, 204, 205, and 206 may be enforced by civil actions

in appropriate United States district courts. . and

in appropriate State or local courts of general

jurisdiction.”!5 That Congress intended broad enforce-

ment is illustrated by the fact that this provision

listed no restriction on who could bring suit.

13 Jd. at 4572 (§ 210(a)).

14 Jd. at 4573 (§ 213(a)).

15 Jd. at 4573 (§ 212(a)).

16

Proponents of the original bill supported the

Dirksen proposal, suggesting that they viewed it as a

comparable alternative. Senator Mondale, for example,

spoke in favor of the compromise amendment, noting

the proposal would “contribute enormously to the

strength, unity, and compassion of this great country

we represent.” 114 Cong. Rec. 4575 (1968).

Following the release of the Kerner Commission

report, the Dirksen amendment, with its clear mandate

facilitating private enforcement of violations of the

Act, gained the support of the Senate where previous

bills had failed. See Jean Eberhart Dubofsky, Fair

Housing: A Legislative History and a Perspective, 8

Washburn L.J. 149, 158 (1969). The Senate voted for

cloture on March 4, 1968. The Senate then debated

additional amendments to H.R. 2516, none of which

removed or changed the enforcement provisions, and

finally voted to pass H.R. 2516, including the Dirksen

amendment, on March 11, 1968.

2. The Fair Housing Act Is Passed in the House

The House of Representatives began considering

the Senate amendments to H.R. 2516 on March 28,

1968. The House raised concerns regarding the bill’s

coverage over the vast majority of American homes

but no significant opposition to the enforcement

scheme advanced. Only a few days later, on April 4,

Dr. Martin Luther King, Jr. was assassinated and

numerous incidents of civil unrest occurred through-

out the country.!16 On April 9, the House Rules

Committee, recognizing the urgency of the moment,

16 Ben A. Franklin, “Army Troops in Capital as Negroes Riot,”

NY. Times, April 6, 1968.

17

submitted a rule to the full House agreeing to the

Senate amendments to H.R. 2516, including the

Dirksen amendment, and prohibited any additional

amendments. Dubofsky, Fair Housing, at 160. On

April 10, the House debated the Civil Rights Act of

1968, including Title VIII (Fair Housing), for one

hour and voted to pass the legislation. President

Johnson signed the Civil Rights Act of 1968 into law

on April 11.17

The broad standing provision in the 1968 Act

invited plaintiffs to utilize private litigation to

enforce the law—and they did so with vigor. In the

years following the enactment of the law, fair

housing commentators observed that “private efforts

under the Act [were] more successful than govern-

ment enforcement.” Robert G. Schwemm, Private

Enforcement and the Fair Housing Act, 6 Yale L. &

Pol'y Rev. 375, 375 (1988). Indeed, the Court noted in

Trafficante, 409 U.S. at 209, that “complaints by

private persons are the primary method of obtaining

compliance with the Act.” Privately-initiated cases were

responsible for many of the important decisions

interpreting the provisions of the Fair Housing Act,

including cases establishing, inter alia, that: (1) the

Act prohibits racial steering, exclusionary zoning, and

redlining, (2) homeowners are responsible for the

discriminatory acts of their agents and employees; and

(3) broad remedies may be available in private

actions as well as in government “pattern or practice”

suits. See Schwemm, Private Enforcement, at 378-79

(citations omitted).

17 Civil Rights Act of 1968, Pub. L. 90-284, 82 Stat. 73.

18

B. Congress Intended to Continue Broad Standing

in the Fair Housing Amendments Act of 1988

1. Congress Considers Amendments to the Act

While private litigants had successfully enforced

provisions of the Act in federal court, by the late

1970s, many Members of Congress began to express

concern that the Act did not provide sufficient

enforcement by the federal government, specifically

by HUD. The legislative record demonstrates that

Congress was determined to amend the bill so that it

would more adequately fulfill Congress’s original

intent to provide effective enforcement of the Act’s

provisions. Congress sought to address the gap between

the anti-discriminatory intention of the Act and the

reality of its implementation, as evidenced by a report

submitted by the Committee on the Judiciary of the

House of Representatives in April 1980. The report

states:

The result of [the passage of title VIII of the

Civil Rights Act of 1968] was the establish-

ment of a clear national policy against

housing discrimination, but little attention

was paid to the details of implementation,

resulting in what this Committee, in light of

experience, now views as shortcomings. The

primary weakness in the existing law

derives from the almost total dependence

upon private efforts to enforce its provisions.

H.R. Rep. No. 96-865, at 3 (1980). This focus on the

inadequacies of the enforcement measures of the Act

demonstrates that Congress intended to strengthen the

federal government’s authority through amendments

to the existing law. Furthermore, Congress sought to

19

expand the Act’s protection to include people with

disabilities and people discriminated against based

on their familial status.

* ee a ee

Person” that Reflects Supreme

Rulings Regarding Standing

While Congress’s main focus in amending the

Act was to strengthen the federal government’s

authority to enforce the Act, Congress also considered

other changes affecting the Act’s private enforce-

ment provisions. These included defining the term

“aggrieved person” and amending the private enforce-

ment provision (§ 812) to include the new definition:

“[aln aggrieved person may commence a civil

action. ”S. Rep. 96-919, at 52 (1980). Congress spe-

cifically intended to incorporate the zone of interests

previously recognized by this Court into the Act’s

provirions. See Bellwood, 441 U.S. 91, 109 (1979) (“Stan-

ding under § 812, like that under § 810, is ‘as [broad]

as is permitted by Article III of the Constitution.”)

(quoting Trafficante, 409 U.S. at 209) (alteration in

original)).

Congress's intent to incorporate the Court’s

interpretation of the FHA’s broad zone of interests as

coterminous with Article III] standing is readily

apparent in the legislative history. For example, the

House Report on the precursor bill to the Fair Housing

Amendments Act of 1988, H.R. 5200,18 proposes the

definition of aggrieved person as “any person who

18 “H.R. 6200 was similar to H.R. 1158 [the 1988 bill] and

provided for administrative enforcement and protection for

handicapped persons.” H.R. Rep. No. 100-711, at 14 (1988).

20

claims to have been injured by a discriminatory housing

practice or who believes that he will be irrevocably

injured by a discriminatory housing practice that is

about to occur.” H.R. Rep. No. 96-865, at 33 (1980).

The report states that the definition “retains the

court’s interpretation of standing under title VIII”

and cites 7rafficante and Bellwood. H.R. Report 96-

865, at 11 (1980).

The Senate Report on another early version of

amendments to the Act, S. 506, as amended, further

elucidates Congress's intent in amending the defini-

tions section of the Act. The Report states that it is

the Judiciary Committee’s understanding that “in

1968 the Congress intended that persons seeking

redress for violations of title VIII would have

standing to use any method provided by the Title to

remedy such a violation.” S. Rep. 96-919, at 12-13

(1980). The Report then notes that the “Supreme

Court agreed” that this was Congress's intent and,

therefore, that the Committee’s action in adding a

definition of aggrieved person to be applied

throughout the Act simply “reaffirms this policy.” /d.

Petitioner Wells Fargo focuses on the “relevant”

House Report issued in 1988 in arguing that

Congress intended to ratify only the “holdings” of

Bellwood and Havens. Pet’r Wells Fargo’s Br. 25.

According to Petitioners, “the legislative history

confirms that Congress meant to ratify the holdings,

not the dicta, of those prior opinions.” /d. at 25.

Petitioners expend a great deal of effort arguing that

Congress could not have intended to reaffirm the

Court’s conclusions in Havens, Bellwood, and Traffi-

cante that the FHA’s zone of interests is as broad as

21

permitted by Article III, despite Congress’s clear

statement that the 1988 amendments intended to

“reaffirm [the] broad holdings of these cases” in

defining the term “aggrieved person.” Pet’r Wells

Fargo’s Br. 19-27.

However, Petitioners overlook the crucial fact

that, at the time that Congress amended the Act in

1988, the Supreme Court regarded its interpretation

of the FHA’s zone of interests as coterminous with

Article III standing as a holding. See Havens, 455

U.S. at 375-76 (“Bellwood held that the only require-

ment for standing to sue under § 812 is the Art. III

requirement of injury in fact.” (emphasis added)).

That Congress had the same understanding of these

cases is reflected in the legislative record. Whatever

the Court may have concluded in later cases about its

earlier statements about the zone of interests Congress

intended for the FHA in ruling on a different statute, 19

there is no question that, in 1988, Congress intended

to reaffirm the Court’s self-described holdings in

Bellwood and Havens. Any inquiry into the zone of

interests Congress intended in the amended FHA

begins and ends with those two decisions and the

incorporation of what was understood to be their zone-

of-interests holdings into the 1988 amendments.

19 Petitioner's argument hinges on dicta in a much later Title

VII case, Thompson, in which the Court declined to extend the

definition of “aggrieved” from the FHA to Title VII,

acknowledging that “[llater opinions __ reiterateld] that the

term ‘aggrieved’ in Title VIII reaches as far as Article [Tl

permits,” but noting that “it is Title VII rather than Title VIII

that is before us here, and as to that we are surely not bound by

the 7rafficante dictum.” See Thompson, 562 U.S. 170, 176-77

(2011).

22

The records of the Congressional! hearings on the

Fair Housing Amendments Act of 1988 include

testimony and statements confirming the Court’s

decisions in Trafficante, Bellwood, and Havens finding

broad standing under the Act. Robert G. Schwemm, an

expert on the FHA and respondent’s counsel in

Bellwood, described the Court’s holding in TYafficante

as a “mandate by a unanimous Supreme Court to

construe Title VIII broadly” that would serve as “the

foundation for all subsequent interpretations of the

Fair Housing Act.” Fair Housing Amendments Act of

1987 Hearings Before the S. Subcomm. on the

Constitution of the S. Comm. on the Judiciary, 100th

Cong. 537 (1987) (statement of Robert G. Schwemm,

Professor of Law, University of Kentucky College of

Law). The legislative record included a statement

from Mayor Richard Arrington of Birmingham,

Alabama, on behalf of the National League of Cities

regarding cities’ interest in the bill. Mayor Arrington

wrote that the Court, in Bellwood, recognized “[t}he

interest of cities in protecting their residents from

discriminatory housing practices.” Jd. at 990.

Congress’s intent to maintain broad standing to

bring suit was also made clear by its rejection of

attempts to narrow standing. In March 1987,

Senator Orrin Hatch introduced S. 867, the Equal

Access to Housing Act of 1987. 134 Cong. Rec. 7176

(1987). Senator Hatch’s bill would have transferred

all enforcement responsibility from HUD to the

Justice Department. In addition, S. 867 narrowed the

definition of “aggrieved person” to any person whose

“bona fide” attempts to secure housing or housing

credit were denied because of discrimination. 134

Cong. Rec. 7178 (1987). In introducing the bill, Senator

23

Hatch noted his interest in curbing lawsuits by “so-

called public interest groups” by making it more

difficult for those not seeking home rental or

purchase, such as testers, to bring private suit. /d

Congress rejected the Hatch Amendment and passed

a final version of the Fair Housing Amendments Act,

H.R. 1158, on August 8, 1988.20

3. Congress Reiterates Its Intent to Support

Enforcement by Private Litigants

Congress’s motivation to strengthen the federal

government's enforcement powers is not an indication

that Congress intended to “decrease its previous

reliance on private attorneys general,” as Petitioner

Bank of America argues. Pet’r Bank of America’s Br. 37.

Nothing in the legislative history of the Fair Housing

Amendments Act of 1988 supports this conclusion.

Congress acted in order to strengthen the overall

enforcement of Act, not to lessen the role of private

litigants in enforcement.

In the course of amending the Act, Congress

unambiguously expressed its intent to maintain a path

for private plaintiffs to enforce the Act while strength-

ening administrative enforcement. One purpose of the

proposed H.R. 1158, was to “removle] barriers to the

use of court enforcement by private litigants and the

Department of Justice.” H. R. Rep. No. 100-711, at 13

(1988). In advocating for passage of the Fair Housing

Amendments Act, Senator Kennedy stated that “[t]he

provisions in existing law related to private fair

housing enforcement actions [were] also strengthened.”

20 Fair Housing Amendments Act of 1988, Pub. L. No. 100-430,

102 Stat. 1619.

24

134 Cong. Rec. 19711 (1988). Rather than decreasing

the role of private litigation in the final legislation,

Congress extended the statute of limitations for

bringing private suit, authorized courts to appoint

attorneys for plaintiffs in need, and removed the cap

on punitive damages. See 42 U.S.C. § 3613 (1988). If

Congress was intent on decreasing private litigation,

it would not have gone to such lengths to ensure

plaintiffs continued to bring their grievances directly

to the courthouse.

Congress debated amendments to the 1968 Act

for almost a decade. At no point in this prolonged

process did Congress state its intent to restrict

standing under the Act even though it had multiple

opportunities to do so.

C. To the Extent Comparisons to Title VII Are

Helpful in Understanding the Scope of the

FHA’s Zone of Interests, They Require an

Expansive Interpretation of the FHA’s Zone

of Interests

While Petitioners argue that the use of the term

“aggrieved” in both the FHA and Title VII conclusively

demonstrates that Congress intended both statutes

to have the same zone of interests, the structure of

each statute and their underlying legislative

histories counsel otherwise. Moreover, insofar as case

law interpreting Title VII's zone of interests is useful

to defining the FHA’s zone of interests, that case law

unambiguously counsels that that zone is broad

enough to encompass the City’s claims.

As an initial matter, while Congress left the

term “aggrieved” undefined in Title VII, in the FHA

25

it purposefully defined “person aggrieved” in sweeping

terms. See § 810(a) (1968) (defining “person aggrieved”

as “any person who claims to have been injured by a

discriminatory housing practice or who believes that

he will be irrevocably injured by a discriminatory

housing practice that is about to occur”). Such a

broad definition imposes no limit on who may bring

an action under the Act other than that the conduct

giving rise to the injury claimed be of the type

proscribed by the Act. This definition is also

consistent both with the expansive nature of the

FHA’s statement of policy and with the prudential

standing holdings in Havens, Bellwood, and Trafficante

that Congress purposefully reaffirmed in 1988, as

discussed in supra Section II.B. Insofar as evaluating

a statute’s zone of interests is a matter of “traditional

statutory interpretation,” Lexmark Inti, Inc. v.

Static Control Components, 134 S.Ct. 1377, 1387

(2014), it is difficult to overlook that the term

“aggrieved” is defined only in the FHA, even after the

FHA and Title VII were comprehensively amended in

1988 and 1991, respectively. See also Yates v. United

States, 135 S.Ct. 1074, 1082 (2015) (“We have several

times affirmed that identical language may convey

varying content when used in different statutes, some-

times even in different provisions of the same statute.”).

Moreover, Congress’s intention of making redress

under the FHA as broadly available as possible is

echoed in the enforcement regime the statute instituted.

The final version of the Act passed in 1968, with the

private enforcement provision included in § 812, was

notable for its accessibility to those with fair housing

claims. Section 812 allowed for any plaintiff to bring

suit in an appropriate federal or state court to enforce

26

the anti-discrimination provisions of the bill. While

the conduct proscribed by Title VII is as broadly

defined as that proscribed by the FHA, Congress drafted

Title VII to limit the ability of parties to enforce the

law through litigation. As Title VII was drafted in

1964, an aggrieved plaintiffs only recourse was to

file a charge with the Equal Employment Opportunity

Commission (EEOC) within 90 days of the discrimi-

natory act (or 210 days if the plaintiff first filed with

a state employment agency).2! The plaintiff was then

required to wait at least 30 days while the EEOC

investigated the charge and could proceed to federal

court only after the EEOC determined the charge

was true and had failed to obtain compliance through

informal methods.22 The law required the plaintiff to

then quickly file suit, within 30 days, or be barred by

the statute of limitations;23 any claims not raised

with the EEOC are barred. See Green v. L.A. Cty.

Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th

Cir. 1989). By contrast, the FHA has consistently

included no restrictions on enforcement through

litigation, reflecting Congress’s intention of making

relief under the FHA as broadly available as possible,

21 Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 § 706(d).

Congress subsequently revised the filing requirements to allow

plaintiffs to file a charge within 180 days and 300 days,

respectively. 42 U.S.C. 2000e-5(e)(1).

22 Id. at §§ 706(a), (e). Congress subsequently revised the law to

extend the period of EEOC consideration to 180 days. 42 U.S.C.

§ 2000e-5(0(1).

23 Id. § 706(e); see also Bellwood, 441 U.S. at 104 n.12 (comparing

administrative remedies available under Title VII and the

FHA). Congress subsequently revised the law to increase the

time period to file suit to 90 days. 42 U.S.C. 2000e-5()(1).

27

even as Title VII’s more restrictive regime demon-

strates that Congress was fully capable of restricting

access to enforcement of a civil rights statute through

private lawsuits.

Regardless of whether the Court concludes that

its past evaluations of Title VII's zone of interests are

useful guideposts with respect to the FHA, it is clear

that both statutes “protect a more-than-usually

‘expan|sive]’ range of interests.” Lexmark, 134 S.Ct.

at 1388 (quoting Bennett v. Spear, 520 U.S. 154, 163

(1997)) (alteration in original). While the Court has

not yet had the opportunity to define the outer boun-

daries of Title VII's zone of interests, see Thompson,

562 U.S. at 177 (“concludfing] that the term ‘aggrieved’

must be construed more narrowly the outer boun-

daries of Article III” but ing them), it has

indicated that those boundaries are at least sufficient

to permit claims by municipalities and other parties

that were not themselves the object of discriminatory

practices. See id. at 176-77 (observing that Title VII's

zone of interests limitation is “compatible with” the

Court’s holdings in Trafficante and Bellwood ).

Such an expansive reading is supported by Title

VII's legislative history. Just as Congress, in amending

the FHA in 1988, explicitly sought to ratify the Supreme

Court’s holdings that the FHA’s zone of interests was

as broad as constitutionally possible, the 1991

amendments to Title VII were specifically intended

to abrogate at least two decisions that had limited

the availability of relief under the statute. See S.

Rep. 101-315, 6-7 (1990) (rejecting the ruling in Wards

Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), that

employers would no longer need to prove that facially

28

neutral business practices with a discriminatory

disparate impact are “significantly related to a legi-

timate business objective” and rejecting the ruling in

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),

that an employment decision motivated in part by

prejudice would not violate the statute if the employer

could show after the fact that the same decision would

have been made for nondiscriminatory reasons); see

also 136 Cong. Rec. 1657 (1990) (statement of Sen.

Howard Metzenbaum) (criticizing a series of 5-4

decisions from the 1988 term as “reversling] long-

standing precedents” and “denlying] protection to the

victims of employment discrimination,” and describing

the then-proposed bill, S. 1745, that became the Civil

Rights Act of 1991 as “a direct response to those

decisions”).

In sum, the Court need not decide how relevant

its Title VII jurisprudence is in evaluating the FHA’s

zone of interests. Under the holdings in Trafficante,

Bellwood, and Havens, the City’s claims would

clearly come within the broad-as-possible zone of

interests identified in these cases. But its claims

would also easily fall within a zone of interests

similar to that of Title VII discussed in Thompson,

which the Court stated is at least broad enough to

encompass municipal plaintiffs and indirect injuries.

Ill. THe FHA’s Zone OF INTERESTS IS SUFFICIENTLY

EXPANSIVE TO ENCOMPASS THE CITy’s CLAIMS

AND ITS ABILITY TO ENFORCE THE ACT

This Court has “described the ‘zone of interests’

test as denying a right of review ‘if the plaintiffs

interests are so marginally related to or inconsistent

with the purposes implicit in the statute that it

29

cannot reasonably be assumed that Congress

intended to permit the suit.” Thompson, 562 U.S. at

178 (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S.

388, 399-400 (1987)) (discussing the use of the term

“person aggrieved” in Title VII and the Admi-

nistrative Procedure Act). Petitioners suggest that

the imposition of any test would doom the City’s

claims, but such confidence belies this Court’s recent

observation “that the test is not ‘especially demanding.”

See Lexmark, 134 S.Ct. at 1389 (quoting Match-F-

Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 132 S.Ct. 2199, 2210 (2012)). Indeed, the

zone of interests test incorporates a strong presumption

in favor of plaintiffs. See id. (observing that the Court

has “often ‘conspicuously included the word “arguably”

in the test to indicate that the benefit of any doubt

goes to the plaintiff.”) (quoting Patchak, 132 S.Ct. at

2210).

Consistent with this broad formulation, in those

cases where this Court has found that a claim did not

fall within a statute’s zone of interests, it has often

been because the Court found an extremely clear

indication that it would not have been possible that

Congress had intended to permit such a claim, such

as a concrete logic in the statute that made the

exclusion of such claims necessary. For example, in

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 347, 348

(1984), which Petitioners cite, the Court concluded

that consumers fell outside the zone of interests to

challenge milk market orders issued pursuant to the

Agricultural Marketing Agreement Act of 1937

because “(t]he structure of this Act indicateld] that

Congress intended only producers and handlers, and

not consumers, to ensure that the statutory

30

objectives would be realized,” such that “[a]llowing

consumers to sue the Secretary would severely disrupt

this compiex and delicate administrative scheme.” In

another case cited by Petitioners, the Court concluded

that plaintiffs’ injuries were outside a statute’s zone

of interests only where the legislative history decisively

showed that the interest of the plaintiffs could not

have been contemplated by Congress as within the

statute’s zone of interests. See Air Courier Conf. v.

Am. Postal Workers Union, 498 U.S. 517, 520, 526-28

(1991). Here, Petitioners have offered no argument

that the City’s cause of action would disrupt the

statutory regime envisioned by Congress. Indeed, the

deleterious effects of housing discrimination on local

communities, including their tax bases, were front-

and-center in Congress’s debates leading to the

passage of the FHA. See 114 Cong. Rec. 2706 (1968)

(expressing concern for the effect of discriminatory

practices on “whole communitlies}”); 114 Cong. Rec.

2274 (1968) (identifying a “[dleclining tax base” as one

of the specific ills Congress sought to remedy with

the FHA).

A. The Court’s Precedent and the Legislative

History of the FHA Demonstrate that the

FHA Incorporates a Zone of Interests

Sufficiently Wide to Encompass the City’s

Claims

As discussed supra Section I, the purposes

underlying the FHA are remarkable in their breadth;

indeed, this Court has characterized the Act’s “central

purpose” as the outright “eradicatlion of] discriminatory

practices within a sector of the Nation’s economy.”

31

Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys.

Project, Inc., 135 S.Ct. 2507, 2511 (2015).

Consistent with the statute’s far-reaching and

lofty purposes, this Court has recognized a broad

range of causes of action from a broad range of

plaintiffs, as Petitioners acknowledge. For example,

the Court has recognized the injury to residents of an

apartment complex that engaged in discriminatory

practices, even though they themselves had not been

the direct targets of discrimination, see Trafficante,

409 U.S. at 210-211; the injury to “testers” who encoun-

tered discrimination in the provision of information

by actively seeking it out, but who did not intend to

enter into a transaction, see Havens, 455 U.S. at 373-

374; and the injury to a municipality that alleged,

among other injuries, that discriminatory practices

would lower property values and damage its tax

base, see Bellwood, 441 U.S. at 110-111.

In its complaints, the City alleges a wide range

of injuries directly resulting from Petitioners’ violations

of the Act—as one might expect from a municipality,

the livelihood of which is deeply intertwined with the

wellbeing of its people and the property within its

boundaries. These include both economic injuries

related to reduced property taxes from properties

that have been devalued as a result of Petitioners’

discriminatory practices and the need to provide

increased municipal services to foreclosed properties,

Third Am. Compl. Against Wells Fargo 44 100-127,

ECF. No. 80., and non-economic injuries related to “the

City’s longstanding and active interest in promoting

fair housing and securing the benefits of living in an

integrated society.” Third Am. Compl. Against Wells

32

Fargo 4 99, ECF. No. 80. See also Resp’t City of

Miami's Br. Against Wells Fargo 22. Both types of

injuries fall within the narrowest zone of interests

one could reasonably argue Congress to have

intended in providing for a private right of action

under the FHA.

B. The City’s Injuries Related to Its Diminished

Revenues and Heightened Expenses Are

Neither Marginally Related to Nor Inconsistent

with the Purposes of the FHA

The City’s clearly delineated, empirically verifiable

economic injuries also fall squarely within the Act’s

zone of interests. This Court unequivocally recognized

that damage to a municipality's tax base as a result

of discriminatory housing practices is precisely the

sort of injury that the FHA was intended to address;

moreover, it recognized the essential link that exists

between neighborhood stability and the development

of increasingly integrated communities. See Bellwood,

441 U.S. at 110-11 (“A significant reduction in property

values directly injures a municipality by diminishing

its tax base, thus threatening its ability to bear the

costs of local government and to provide services.

Other harms flowing from the realities of a racially

segregated community are not unlikely. As we have

said before, ‘[there] can be no question about the

importance’ to a community of ‘promoting stable,

racially integrated housing.” (quoting Linmark

Assocs. Inc. v. Willingboro, 431 U.S. 85, 94 (1977))

(alteration in original). Here, the City has alleged

that an increased incidence of foreclosures as a result

of Petitioner’s discriminatory lending practices

resulted in the direct and immediate effects of

33

diminished property values and conditions requiring

an increase in costly municipal services.

While Petitioners argue that the economic

injuries alleged by the City are merely “financial”

and so not within the FHA’s zone of interests, their

argument is inconsistent with the most basic,

commonsense reading of the statute. The City alleges

that Petitioners’ racially discriminatory conduct

directly caused a chain of events resulting in reduced

tax revenues and heightened municipal expenses:

foreclosed-on homes are sold at a deep discount,

lowering the values of surrounding property and leaving

the city with a tax revenue shortfall; and abandoned

properties become hotbeds of crime and safety hazards,

requiring the city to stretch its already-diminished

resources to address these immediate dangers to the

surrounding community. These injuries are cognizable

under the FHA in the same way that a family’s

increased housing expenses resulting from its having

received discriminatorily unfavorable lending terms

would be cognizable. Whether or not the target of the

alleged discrimination is also the party that suffers

the injury is immaterial, as this Court has recognized.

See, e.g., Trafficante, 409 U.S. at 209-10. Like the

plaintiffs in 7rafficante, the City suffered an injury

as a result of racially discriminatory conduct against

victims that directly resulted in injuries to it— injuries

that reduced its revenues and increased demands for

expenditures that indisputably are within the Act’s

zone of interests.

Petitioners also miss the point in suggesting

that the City’s injuries do not fall within the FHA’s

zone of interests because the City would have suffered

34

a similar loss if Petitioners had irresponsibly lent to

subprime borrowers without any race-based differen-

tiation among borrowers. It is precisely the fact that

the Petitioner’s conduct was the race-based discrimi-

nation in lending activities specifically prohibited by

the Act that makes that conduct actionable and the

resulting injuries compensable. That some non-

discriminatory conduct might have a similar effect is

irrelevant to the inquiry here; that conduct would be

outside the zone of interests of the Act because it was

non-discriminatory, not because of the nature of the

injury.

C. Injuries to the City’s Ability to Foster Acceas to

Fair Housing Are Neither Marginally Related

to Nor Inconsistent with the Purposes of the

FHA

The City’s non-economic injuries fall squarely

within the FHA zone of interests. Congress’s stated

policy of providing fair housing throughout the

United States is deeply consonant with the policy

interests that the City alleges have been damaged by

Petitioners’ discriminatory practices, namely, the

City’s efforts to “promotle] fair housing,” to “securle]

the benefit. of an integrated community,” and to

“affirmatively further fair housing objectives of Title

VI of the Civil Rights Act of 1964, Title VIII of the

Civil Rights Act of 1968, as amended, and other

relevant federal, state, and local housing laws.” Third

Am. Compl. Against Wells Fargo 4 99, ECF. No. 80

(internal citations and quotation marks omitted).

Indeed, the City’s interests in advancing fair housing

incorporate and go far beyond the interests of the

non-profit plaintiff in Jnclustve Communities, which

35

Petitioners rely upon but do not challenge on zone of

interests grounds.

D. Robust Enforcement by Municipalities Is

Necessary to Realize the FHA’s Purposes

The ambitious purpose of the FHA—to “eradicate

discriminatory practices” in housing, /nclusive Com-

munities., 135 S.Ct. at 2511, to the full extent “within

constitutional limitations,” 42 U.S.C. § 3601—would

be ill-served by prohibiting the City’s claim. In

enacting the FHA in 1968 and amending it in 1988,

Congress clearly sought to provide for robust enforce-

ment by a wide range of plaintiffs who had incurred

a wide range of injuries, as this Court has recognized

in Inclusive Communities, Havens, Bellwood, and

Trafficante. Moreover, the types of injuries alleged by

the City, clearly resulting from Petitioners’ racially

discriminatory practices, represent interests that are

both central to the Act and which the City, as a

municipality, is uniquely positioned to vindicate. The

erosion of a property tax base, the burden of

providing the additional municipal services made

necessary by foreclosure, the racial disintegration of

neighborhoods: these are the very types of problems

that were central to Congress’s intent and which are

uniquely injurious to municipalities like Miami. See

Br. of Amici Curiae the City and County of San

Francisco, the City of Los Angeles, and Other

Jurisdictions. To foreclose a municipality's ability to

seek redress for its injuries would be to constrain the

FHA from being used as Congress intended—

broadly, to vindicate the full range of interests

predicated on non-discriminatory housing practices.

36

a

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

THOMAS J. HENDERSON

COUNSEL OF RECORD FOR AMICI CURIAE

SABA BIREDA

PELICIA GILBERT

JAMES E. RICHARDSON

SANFORD HEISLER, LLP

1666 CONNECTICUT AVE. NW, SUITE 300

WASHINGTON, DC 20009

(202) 499-5200

THENDERSON@SANFORDHEISLER.COM

OCTOBER 7, 2016

— App.1 -

APPENDIX: LIST OF AMICI CURIAE

Amici curiae include the following current and

former Members of Congress:

e Vice President Walter Mondale

Co-Sponsor of the Fair Housing Act of 1968 (in

office from 1964-1976 (Senate) and Vice

President from 1977-1981)

e Senator Harry Reid

Minority Leader, United Statee Senate (in

office from 1983-1987 (House) and in office

since 1987 (Senate))

e Representative Michael Capuano

Co-Founder and Co-Chair, VCongressiona!

Former Mayors Caucus; House Financial

Services Committee (in office since 1999)

e Representative Keith Ellison

Co-Chair, Congressional Progressive Caucus

(in office since 2007)

e Representative Raul Grijalva

Co-Chair, Congressional Progressive Caucus

(in office since 2003)

e Representative Lois Frankel

Vice-Chair, Congressional Caucus on Women’s

Issues (in office since 2013)

e Representative Al Green

Co-Chair, Economic Development and Wealth

Creation Taskforce, Congressional Black

Caucus; Ranking Member, Subcommittee on

Oversight and Investigations, House Commit-

tee on Financial Services (in office since 2005)

— App.2 -

Representative Maxine Waters

Ranking Member, House Committee on

Financial Services (in office since 1991)

Representative John Conyers, Jr.

Ranking Member, House Committee on the

Judiciary (in office since 1965)

Senator Sherrod Brown

Ranking Member, Senate Committee on

Banking, Housing, and Urban Affairs (in office

from 1993-2007 (House) and in office since

2007 (Senate))

Representative Rubén Hinojosa

Ranking Member, Subcommittee on Higher

Education and Workforce Training, House

Committee on Education and the Workforce

(in office since 1997)

Representative Frederica Wilson

Ranking Member, Subcommittee on Workforce

Protections, House Committee on Education

and the Workforce (in office since 201 1)

Representative Carolyn Maloney

Ranking Member, Subcommittee on Capital

Markets and Government Sponsored Enter-

prises, House Committee on Financial Services

(in office since 1993)

Representative Emanuel Cleaver, [I

Ranking Member, Subcommittee on Housing

and Insurance, House Committee on Financial

Services (in office since 2005)

Representative Steve Cohen

Ranking Member, Subcommittee on the

Constitution and Civil Justice, House Commit-

tee on the Judiciary (in office since 2007)

Representative John Lewis

Ranking Member, Subcommittee on Over-

sight, House Committee on Ways and Means

(in office since 1987)

Senator Jack Reed

Ranking Member, Subcommittee on Trans-

portation, Housing and Urban Development

and Related Agencies, Senate Committee on

Appropriations (in office from 1991-1997

(House) and in office since 1997 (Senate))

Senator Robert Menendez

Ranking Member, Subcommittee on Housing,

Transportation, and Community Development,

Senate Committee on Banking, Housing, and

Urban Affairs (in office from 1993-2006 (House)

and in office since 2006 (Senate))

Senator Bernard Sanders

Ranking Member, Subcommittee on Primary

Health and Retirement Security, Senate Com-

mittee on Health, Education, Labor, and

Pensions (in office from 1991-2007 (House)

and in office since 2007 (Senate))

Representative Barbara Lee

Senior Member, House Committee on Appro-

priations (in office since 1998)

Representative Dan Kildee

House Committee on Financial Services (in

office since 2013)

— App.4 -—

Representative Stephen Lynch

Senior Member of the House Committee on

Financial Services (in office since 2001)

Representative Patrick Murphy

House Committee on Financial Services (in

office since 2013)

Representative Ted Deutch

Subcommittee on the Constitution and Civil

Justice, House Committee on the Judiciary (in

office since 2010)

Representative Luis V. Gutiérrez

House Committee on the Judiciary (in office

since 2003)

Senator Patty Murray

Subcommittee on Transportation, Housing

and Urban Development and Related Agencies,

Senate Committee on Appropriations (in office

since 1993)

Senator Jeff Merkley

Subcommittee on Housing, Transportation, and

Community Development, Senate Committee

on Banking, Housing, and Urban Affairs (in

office since 2009)

Senator Al Franken

Subcommittee on the Constitution and Civil

Justice, Senate Committee on the Judiciary (in

office since 2009)

Senator Sheldon Whitehouse

Subcommittee on the Constitution, Senate

Committee on the Judiciary (in office since

2007)

— App.5 -

Senator Richard Blumenthal

Subcommittee on Oversight, Agency Action,

Federal Rights and Federal Courts, Senate

Committee on the Judiciary (in office since

2011)

Representative Alcee Hastings

United States House of Representatives (in

office since 1993)

Senator Cory Booker

United States Senate (in office since 2013)

Senator Barbara Boxer

United States Senate (in office from 1983-1993

(House) and in office since 1993 (Senate))

Senator Mazie K. Hirono

United States Senate (in office from 2007-2013

(House) and in office since 2013 (Senate))

Senator Tim Kaine

United States Senate (in office since 2013)

Senator Edward J. Markey

United States Senate (in office from 1976-2013

(House) and in office since 2013 (Senate))

Senator Bill Nelson

United States Senate (in office from 1979-1983

(House) and in office since 2001 (Senate))

Senator Jeanne Shaheen

United States Senate (in office since 2009)

Senator Ron Wyden

United States Senate (in office from 1981-1996

(House) and in office since 1996 (Senate))