Opposition Brief — Wells Fargo & Co. v. City of Miami, 136 S. Ct. 2545 (2016) (No. 15-1112)

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MAY 20 206

OFFICE OF THE

No. 15-1112

IN THE

Supreme Court of the United States

WELLS FARGO & Co., ET AL.,

Petitioners,

V.

CITY OF MIAMI, a Florida municipal corporation,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

Victoria Méndez Robert S. Peck

CITY OF MIAMI Counsel of Record

OFFICE OF THE CITY CENTER FOR

ATTORNEY CONSTITUTIONAL

444 S.W. 2nd Avenue LITIGATION, P.C.

Suite 945 777 6th Street, N.W.

Miami, FL 33130 Suite 250

(305) 416-1800 Washington, DC 20001

(202) 944-2874

robert. peck celfirm. com

Attorneys for Respondent

Additional counsel listed on inside cover

Erwin Chemerinsky Joel Liberson

UNIVERSITY OF Howard Liberson

CALIFORNIA, IRVINE TRIAL & APPELLATE

401 East Peltason Drive RESOURCES, P.C.

Educ. 1095 400 Continental Blvd.

Irvine, CA 92697 6th Floor

(949) 824-7722 El Segundo, CA 90245

(310) 426-2361

Rachel Geman

LIEFF CABRASER HEIMANN

& BERNSTEIN L. L. P

250 Hudson Street

8th Floor

New York, NY 10013

(212) 355-9500

i

QUESTIONS PRESENTED

1. Whether the term “aggrieved” in the Fair

Housing Act imposes a zone-of-interests requirement

that requires more than an interest or injury arguably

protected by the statute?

2. Whether the City is an “aggrieved

person” under the Fair Housing Act?

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED . ————— i

TABLE OF CONTENTS. — il

TABLE OF AUTHORTIES. . . iv

BRIEF FOR RESPONDENT IN OP POSITION. 1

COUNTER STATEMENT OF THE CASE 1

REASONS FOR DENYING THE PETITION ........... 6

I. This Case Provides a Poor Vehicle for

the Exercise of this Court’s Discretion............ 6

II. The Absence of a Conflict in the Circuits

Further Advises Against Review in this

T 8

A. If a proper question, the issue

presented is likely to be reviewed

ã̃·. oicirccncecenimenteamesentnnccenees 8

B. The alleged conflict with this

Courts recent jurisprudence does

1 ̃ ſ—— Si Pe 11

J. Lexmark did not narrow

this Court s approach to the

zone of interestss. 11

2. Thompson did not redefine

standing under the FHA........... 13

ill

3. The Bunk s petition does

little more than ask for

correction of a claimed

8 — ———ů 16

III. The Second Question Presented Seeks

ZT 17

s . ( 20

APPENDIX

APPENDIX A: Plaintiffs Motion for

Reconsideration, Exhibit A (Proffered

First Amended Complaint) (filed July 21,

2014), ECF No. 50-1, Excerpt ........................ la

APPENDIX B: Plaintiffs Third Amended

Complaint (filed Apr. 29, 2016), ECF No.

iv

TABLE OF AUTHORITIES

CASES

Boumediene v. Bush, 553 U.S. 723 (2008) 18

Brotherhood of Locomotive Firemen v.

Bangor & Aroostock Railroad Co., 389

ESTE TN 6

Catlin v. United States, 324 U.S. 229 (1945) 6

City of Los Angeles v. Bank of America, No.

CV-13-9046, 2015 WL 4889511 (C.D. Cal.

e A oe oe SE 9

City of Los Angeles v. Wells Fargo & Co.,

No. 2:13-cv-9007, 2015 WL 4398858 (C.D.

D .. g

Clarke v. Securities Indus. Ass n, 479 U.S.

ES .. 12, 14

County of Cook v. Bank of America Corp.,

No. 14-C-2280, 2015 WL 1303313 (N.D.

e ceeeninibenenionanned 10

County of Cook v. HSBC North American

Holdings Inc., 136 F. Supp. 3d 952 (N.D.

RARER Re TS se “Satie Hie Fee 10

County of Cook v. Wells Fargo & Co., 115 F.

eln 10

DeMarco v. United States, 415 U.S. 449

CCC 19

Gladstone, Realtors v. Village of Bellwood,

gS eee 10, 13, 14, 15

*

Grupo Mexicano de Desarrollo, S.A. v.

Alliance Bond Fund, Inc., 527 U.S. 308

Hamilton-Brown Shoe Co. v. Wolf Bros. &

r csinuusiouiunnnns 6

Havens Realty Corp. v. Coleman, 455 U.S.

rr 13, 19

Jones v. Alfred H. Mayer Co., 392 U.S. 409

Layne & Bowler Corp. v. Western Well

Works, Inc., 261 U.S. 387 (1923)........................... 17

Lexmark Interantional, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377

ERT SETAE Gee SR ae Oe ee eee 11. 12, 13

Match -E- Be-· Nash · She · Wisi Band of

Pottawatomi Indians v. Patchak, 132 8.

F ̃ ( 12

Nasser v. City of Homewood, 671 F. 2d 432

r ... 4, 5

Rice v. Sioux City Memorial Park Cemetery,

gE 17

Stack v. Boyle, 342 U.S. 1 (1951) 16

Texus Department of Housing & Community

Affairs v. Inclusive Communities Project,

4 ee I ceccescccceccccsccessessces 5, 7, 13

Thompson v. North American Stainless, LP,

D 10, 14, 15, 16

vi

Trafficante v. Metropolitan Life Insurance

J EINE cnidiisdinternsevctesesssessenevenees

Virginia Military Institute v. United States,

e

STATUTES

e

r

42 U.S.C. 66 3812-3614... . .. . . . .. . .

RULES

0

OTHER AUTHORITIES

Appellee Bank of America Br., City of Los

Angeles v. Bank of America Corp., No. 15-

5589, 2016 WL 281342 (9th Cir. Jan. 19,

Appellee Wells Fargo Br., City of Los

Angeles v. Wells Fargo & Co., No. 15-

56157, 2016 WL 1003381 (9th Cir. Mar.

9 — —

1

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent City of Miami, Florida respectfully

requests that this Court deny the petition for writ of

certiorari that seeks review of the decision of the

United States Court of Appeals for the Eleventh

Circuit in this case.

In its Petition, Wells Fargo & Co. and certain of

its subsidiaries (collectively, “the Bank”) seek this

Court’s intervention at the same time they will be

either answering the Third Amended Complaint or

filing a new motion to dismiss, due May 24, 2016, in

the United States District Court for the Southern

District of Florida. The City has every expectation

that the Bank will opt to file a new motion to dismiss.

Both the effort before this Court and the anticipated

one before the District Court seek to relieve the Bank

from answering the Complaint filed by the City of

Miami for ongoing violations of the Fair Housing Act

(“FHA”), 42 U.S.C. §§ 3601 et seg. The Bank

speculates that there is “little chance” of a circuit

conflict on the questions it presents, but urges this

Court to review because the decision below is “plainly

wrong’ and because a decision now would promote

efficiency. Pet. 12, 16. However, there is no warrant to

use this flawed vehicle to examine the issues

presented or do so prematurely.

COUNTERSTATEMENT OF THE CASE

On December 13, 2013, the City of Miami filed

a detailed, 62-page Complaint against the Bank,

Petitioners here, alleging violations of the FHA by

engaging in discriminatory mortgage lending

practices that resulted in a disproportionate and

excessive number of defaults by minority homebuyers

2

and resulting in significant, direct, and continuing

financial harm to the City. The defendants named

were Wells Fargo & Co. and Wells Fargo Bank, N.A.

The Complaint alleged the discriminatory lending

practices at issue are aimed at disproportionately

“placing vulnerable, underserved [minority

borrowers in loans they cannot afford” and then “when

a minority borrower who previously received a

predatory loan sought to refinance the loan,. [the

Bank] refused to extend credit at all, or on equal terms

as refinancing similar loans issued to white

borrowers.” Compl. 44 8, 12, City of Miami v. Wells

Fargo & Co., No. 1:13-cv-24508 (S.D. Fla. Dec. 13,

2013), ECF No. 1. As the Eleventh Circuit correctly

characterized the allegations, the City alleged “the

bank targeted black and Latino customers in Miami

for predatory loans that carried more risk, steeper

fees, and higher costs than those offered to identically

situated white customers, and created internal

incentive structures that encouraged employees to

provide these types of loans.” Pet. App. 21a.

The Complaint alleged that a _ regression

analysis of available data reported by the Bank

demonstrated that African-American borrowers were

4.321 times more likely to receive a predatory loan

than a white borrower with similar underwriting and

borrower characteristics. Id. at 6a. Latino borrowers

were 1.576 more likely to receive such loans. Id.

The Complaint also provided facts supporting

allegations that these loan practices foreseeably

resulted in foreclosures, did so more rapidly for

African-American and Latino borrowers than whites,

and that the foreclosures were caused by the

discriminatory loan practices. Pet. App. 4a-5a. As a

result of these practices, the Complaint alleged that

3

property values of the homes vacated and of other

homes in the same neighborhoods diminished and

caused a loss of tax revenues to the City. Id. at 8a;

Compl. 44 156-170. Moreover, the Complaint alleged

that a Hedonic regression analysis can calculate the

City’s loss attributable to the Bank’s discriminatory

lending practices and separate out other potential

causes. Pet. App. 6a. In addition, the City suffered

other economic damages beyond lost tax revenues

because it has had to expend additional monies on

municipal services to address problems of vagrancy,

criminal activity, and threats to the public health and

safety arising at these properties because of their

foreclosed status, as well as to remediate newly

blighted neighborhoods. Id. at 8a; Compl. 44 172, 189.

To make concrete any generalized allegations, the

City preliminarily identified 999 discriminatory loans

issued by the Bank between 2004-2012 that resulted

in foreclosure and, in the Complaint, provided sample

addresses to 10 homes. Pet. App. 12a.

A second cause of action in the Complaint

alleged that the Bank unjustly enriched itself by

taking advantage of “benefits conferred by the City

and, rather than engaging in lawful lending

practices,” engaged in racially discriminatory

mortgage practices that “denied the City revenues it

had properly expected through property and other tax

payments and by costing the City additional monies

for services it would not have had to provide in the

neighborhoods affected by foreclosures due to

predatory lending, absent the Defendants’ unlawful

activities.” Jd. at 4a; Compl. J 194. The Bank filed a

Motion to Dismiss on March 18, 2014. Pet. App. 81a.

On July 9, 2014, the District Court granted the

Bank’s motion to dismiss with prejudice with respect

4

to the allegations based on the FHA, while the cause

of action premised on unjust enrichment was

dismissed without prejudice.' Id. at 82a. The District

Court reached its conclusion based on a reading of an

Eleventh Circuit decision that no party had cited,

Nasser v. City of Homewood, 671 F.2d 432 (11th Cir.

1982). Id. at 90a.

On July 21, 2014, the City timely moved for

reconsideration, proffering a proposed First Amended

Complaint to address issues raised in the dismissal

order with respect to its FHA claims and to provide

additional details deemed lacking by the court with

respect to its unjust enrichment claim. Id. at 72a, IIa.

It argued that the court had misconstrued Nasser. On

September 9, 2014, the District Court denied the

motion for reconsideration, while providing additional

time to file a new complaint based on the claim for

unjust enrichment alone. Id. at 73a. The City,

choosing not to split its causes of action, declined to

file a single-cause of action complaint. The City filed a

timely notice of appeal October 7, 2014. Id. at 12a.

The District Court order referenced and incorporated

its same-day order in a similar case brought by the City

against Bank of America. Pet. App. 81a. In the subsequent

appeal in the Eleventh Circuit, the cases against Bank of

America and Wells Fargo, along with a third one against

Citigroup, Inc., were argued together. Though separate

opinions were issued in each, the Bank of America opinion

was designated as the lead and most comprehensive opinion.

See Pet. App. 12a; 20a-7la. Bank of America has filed a

separate petition for certiorari. No. 15-1111. Wells Fargo has

asked this Court to consider granting both petitions and

consolidating the two cases. Pet. 6 n.2.

5

The Eleventh Circuit held the City had

constitutional standing to pursue its FHA claims, that

the City met the zone of interests requirement under

the FHA, and that the allegations were sufficient to

meet the FHA’s proximate cause requirement. /d. at

13a-16a. It agreed with the City that the District

Court had misread its decision in Nasser. Id. at 15a-

16a. As to the other issues raised by the Bank or the

District Court’s opinion, the Eleventh Circuit

remanded the case to allow the City to file an

amended complaint. Id. at 17a. In doing so, the

Eleventh Circuit noted that this Court had “handed

down a decision that may materially affect the

resolution of this case,” Id. at 64a, namely, Texas

Department of Housing & Community Affairs v.

Inclusive Communities Project, Inc., 135 S. Ct. 2507

(2015). Thus, the Eleventh Circuit instructed the

District Court to review the amended complaint in

light of this Court's decision in Inclusive

Communities, which discussed pleading requirements

for an FHA disparate-impact complaint. Jd. at 65a.

This Petition was filed March 4, 2016. Since

that filing, the District Court, on March 17, 2016,

dismissed the City’s Second Amended Complaint

without prejudice. Order, City of Miami v. Wells Fargo

& Co., No. 13-24508 (S.D. Fla.), ECF No. 77. The City

filed a Third Amended Complaint on April 29, 2016.

Third Am. Compl., ECF No. 80. The Bank has a

deadline to answer the new complaint or file a motion

to dismiss by May 24 2016.

6

REASONS FOR DENYING THE PETITION

I. This Case Provides a Poor Vehicle for the

Exercise of this Court’s Discretion.

This case may be rendered moot if the District

Court grants the Bank’s expected motion to dismiss.

That court has shown a disposition to grant such

motions, having done so twice before, including once

after the Eleventh Circuit reversed its decision. The

possibility that a dismissal is in the offing underscores

the wisdom of awaiting a final disposition. See

Virginia Military Inst. v. United States, 508 U.S. 946,

946 (1993) (“We generally await final judgment in the

lower courts before exercising our certiorari

jurisdiction.”) (Scalia, J.). See also Brotherhood of

Locomotive Firemen v. Bangor & Aroostock R. R. Co.,

389 U.S. 327, 328 (1967) (holding the case not yet ripe

for review by this Court“ because it was remanded to

the District Court for further proceedings).

Nothing extraordinary is alleged to justify early

review of the decision below, nor could it be alleged.

See Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 258 (1916) (“except in extraordinary cases,

the writ is not issued until final decree” and the

absence of finality “of itself’ may be “sufficient ground

for the denial of the application”).

This case currently stands in an even weaker

posture for consideration of certiorari than a dismissal!

motion stands for an ordinary appeal. Longstanding

precedent holds that “denial of a motion to dismiss,

even when the motion is based upon jurisdictional

grounds, is not immediately reviewable.” Catlin v.

United States, 324 U.S. 229, 236 (1945). In the Catlin

situation, the case goes on to its next phase. Here, the

7

City anticipates, much like Bank of America’s motion

filed May 16, that the Bank will argue three

overlapping grounds for dismissal: an alleged failure

to meet the statute of limitations, an alleged failure to

identify a timely injury, and an alleged failure to meet

this Court's requirements stated in Inclusive

Communities. See Mot. to Dismiss, City of Miami v.

Bank of America, No. 1:13-cv-24506, ECF No. 103.

In its decision below, the Eleventh Circuit

instructed the District Court that:

Any newly pled complaint must take into

account the evolving law on disparate

impact in the FHA context. Without the

new pleadings before us, we have no

occasion to pass judgment on how

Inclusive Communities will impact this

case, but we flag the issue both for the

parties and for the district court on

remand.

Pet. App. 65a.

The anticipated motion to dismiss will likely

test whether the City has met that direction. Because

this case is still being litigated at the motion to

dismiss stage, and a ruling adverse to the City will

provide a basis for a return to the Eleventh Circuit,

there is no warrant to exercise the unusual discretion

the Bank asks of this Court to review the Eleventh

Circuit’s earlier decision in this case and depart from

the general practice of awaiting final judgment.

Instead, the situation seems more akin to an appeal of

the denial of a preliminary injunction, which is

mooted by a district court’s decision on the permanent

injunction. See Grupo Mexicano de Desarrollo, S.A. v.

8

Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999)

(“Generally, an appeal from the grant of a preliminary

injunction becomes moot when the trial court enters a

permanent injunction, because the former merges into

the latter.”).

II. The Absence of a Conflict in the Circuits

Further Advises Against Review in this

Court.

A. If a proper question, the issue

presented is likely to be reviewed in

other circuits.

The Bank does not assert that a conflict exists

between the circuits on the issue of municipal

standing to bring an FHA claim of this kind. Pet. 10-

11. Instead, it speculates that there is “little chance”

of diverse opinions being issued on the first Question

Presented because of existing precedents. Pet. 11.

Even as it denies that any circuit is likely to issue a

decision conflicting with the decision of the Eleventh

Circuit, it contradicts the claim by asserting that the

“two sets of decisions [from this Court interpreting

“aggrieved” in different statutes} cannot be

reconciled” and that “this Court has already staked

out both sides of the issue,” forcing each circuit “to

only pick which set of this Court’s decisions to follow.

Pet. 10, 11. Rather than cause circuit stagnation, the

examination of the supposedly conflicting precedents

and the rationale for following one or the other

The claim of two separate sets of precedents on the

same issue ignores the fact that the precedents address two

separate statutes, Title VII and the FHA. Each statute,

however, has been treated consistently by this Court.

9

provides precisely the opportunity for percolation that

this Court favors.

The first Question Presented is currently before

the Ninth Circuit in a case in which the Bank is a

party. In City of Los Angeles v. Wells Fargo & Co., No.

15-56157 (9th Cir.), the District Court dismissed Los

Angeles’s FHA action against the Bank on summary

judgment on _ statute-of-limitations and related

grounds. City of Los Angeles v. Wells Fargo & Co., No.

2:13-cv-9007, 2015 WL 4398858, at *14 (C.D. Cal. July

17, 2015). In response to the City’s appeal, the Bank

has asserted, inter alia, that the judgment in its favor

may be affirmed because Los Angeles falls outside the

FHA’s zone of interests and therefore lacks standing

to bring the action. Appellee Wells Fargo Br. at 49-56,

City of Los Angeles v. Wells Fargo & Co., No. 15-56157,

2016 WL 1003381 (9th Cir. Mar. 11, 2015). A second

pending Ninth Circuit case also raises the same

question. Los Angeles also brought « similar action

against Bank of America, which was also dismissed at

summary judgment on statute of limitations grounds.

City of Los Angeles v. Bank of America, No. CV-13-

9046, 2015 WL 4889511, at *6 (C.D. Cal. May 11,

2015). On appeal, Bank of America also asserts

summary judgment may be affirmed on the

alternative grounds that Los Angeles is outside the

FHA’s zone of interests. Appellee Bank of America Br.

at 54-59, City of Los Angeles u. Bank of America Corp.

No. 15-5589, 2016 WL 281342 (9th Cir. Jan. 19, 2016).

The issue further appears likely to arise in the

Seventh Circuit. The Northern District of Illinois has

issued conflicting rulings that requires resolution by

the Seventh Circuit, taking the polar opposite

positions that the Bank speculates would never occur

absent a decision by this Court. In County of Cook v.

10

Wells Fargo & Co., 115 F. Supp. 3d 909 (N.D. III.

2015), the county’s lawsuit was dismissed as outside

the zone of interests protected by the FHA because the

county was not denied a home loan or offered

unfavorable terms. Id. at 919. The court further

stated, id. at 915-20, that, in Thompson v. North

American Stainless, LP, 562 U.S. 170 (2011), this

Court effectively overruled and made “kaput”

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

(1979), which had recognized municipal standing

under the FHA for claims similar to those of the City

in this case. The decision is at odds with the Bank’s

claim that no conflict can be possible. Thompson is

relied upon by the Bank so heavily in its Petition that

it earns a passim designation in its Table of

Authorities.

Despite that ruling, two months later, another

judge in the same court rejected that rationale. He

specifically “decline[d] to adopt such a sweeping view

of Thompson,” and lilnstead, this Court agrees with

another court in this district that found statutory

standing under similar circumstances.” Cnty. of Cook

v. HSBC N. Am. Holdings Inc., 136 F Supp. 3d 952,

2015 WL 5768575, at *8 (N.D. III. Sept. 30, 2015)

(citing Cnty. of Cook v. Bank of Am. Corp., No. 14-C-

2280, 2015 WL 1303313, at *4-5 (N.D. Ill. Mar. 19,

2015)) (examining Thompson and holding “the

County's claims falls within the FHA's zone of

interests”). With that conflict between district court

decisions plainly joined, the Seventh Circuit is likely

to weigh in on the first Question Presented.

Thus, this Court is likely to have the benefit of

additional decisions from the Ninth and Seventh

Circuits. Though the Bank denies that the issue will

percolate, Pet. 11, it plainly will as at least two other

—

11

circuits appear likely to weigh in on the issue. If the

first Question Presented is a proper one, it is one that

would benefit from further ventilation based on

additional exploration in appellate decisions.

B. The alleged conflict with this

Court’s recent jurisprudence does

not exist.

The Bank’s claim that this Court has adopted a

new approach to the zone of interests analysis that

needs preemptive application to the FHA through a

grant of certiorari does not stand up to scrutiny. The

argument is built on two recent precedents that

reaffirmed preexisting law. As such, there is no

warrant for this Court’s intervention in the absence of

a circuit conflict.

1. Lexmark did not narrow this

Court’s approach to the zone of

interests.

First, the Bank asserts that the decision below

is in tension with Lexmark International, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377 (2014). The

contention is based on an erroneous assertion that

Lexmark announced a new, more stringent

application of the zone of interests. Pet. 18. In

contrast, the Eleventh Circuit expressly held that the

FHA’s zone of interests “encompasses the City’s

allegations in this case because the City has

specifically alleged that its injury is the result of a

Bank policy either expressly motivated by racial

discrimination or resulting in a disparate impact on

minorities.” Pet. App. 47a.

Lexmark, applying the Lanham Act, stated that

the zone-of-interests test applies to all statutorily

12

created causes of action, but that Congress may

expand the zone of interests. 134 S. Ct. at 1388 (“a

court . cannot limit a cause of action that Congress

has created merely because ‘prudence’ dictates”).

Indeed, in Lexmark, this Court held that a third-party

whose trademark was not affected and who was not a

direct competitor of the defendant but whose product

was adversely affected by Lexmark’s anticompetitive

false advertising was within the Lanham Act’s zone of

interests. The breadth of zone-of-interest coverage in

that statute, permitting a case of third-party liability,

demonstrates that there is no inherent prudential

limit that would require a city be the discriminated-

against party to vindicate its own interests under the

FHA.

The zone-of-interests test is not a new test and

“is not meant to be especially demanding.” Match-E-

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

Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Clarke

v. Securities Indus. Ass'n, 479 U.S. 388, 399 (1987)).

In fact, this Court has “always conspicuously included

the word ‘arguably’ in the test to indicate that the

benefit of any doubt goes to the plaintiff.” Jd. Thus,

the “test forecloses suit only when a plaintiff's

‘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.” Id. (quoting Clarke, 479 U.S. at 399).

To make the “zone” determination, a court

applies Congress’s “evident intent” and emphatically

does “not require any ‘indication of congressional!

purpose to benefit the would-be plaintiff.” Jd. (quoting

Clarke, 479 U.S. at 399-400). Here, with respect to the

FHA, congressional intent is very broad and plainly

0

covers the City's action, as the FHA is a

13

comprehensive open housing law.” Jones v. Alfred H.

Mayer Co., 392 U.S. 409, 413 (1968). Unlike other civil

rights statutes, the FHA’s “potential for effectiveness

is probably much greater than [§ 1982] because of

the sanctions and the remedies that it provides.” Id.

at 416 n.19. Its purpose, as expressed by Congress, is

“to provide, within constitutional limitations, for fair

housing throughout the United States.” 42 U.S.C. §

3601. This Court recently elaborated on that, holding

that the FHA’s “central purpose” is “to eradicate

discriminatory practices within a sector of our

Nation’s economy.” Inclusibe Communities, 135 S. Ct.

at 2521. Consistent with that broad purpose, the FHA

provides for both private and governmental rights of

action. See 42 U.S.C. §§ 3612-3614.

Lexmark acknowledges that “our analysis of

certain statutes will show that they protect a more-

than-usually ‘expan{sive]’ range of interests.“

Lexmark, 134 S. Ct. at 1388 (ellipses in original). That

statement accords with the recognition in Gladstone

that “Congress may. by legislation, expand standing

to the full extent permitted by Art. III.“ Gladstone,

441 U.S. at 100. Thus, Havens Realty Corp. v.

Coleman, 455 U.S. 363 (1982), relying on Gladstone's

statement, held “courts accordingly lack the authority

to create prudential barriers to standing in suits

brought under [FHA Section 812].“ Id. at 372. Nothing

in Lexmark alters this conclusion.

2. Thompson did not redefine

standing under the FHA.

The other precedent the Bank asserts limits the

parties who may make a claim under the FHA and is

in tension with the decision below is Thompson.

However, Thompson was not an FHA case, does not

14

discuss discriminatory impact within the context of

the FHA, and patently did not make any holding with

respect to that statute. See 562 U.S. at 176 (“it is Title

VII rather than Title VIII that is before us here“).

Thompson reiterated previous holdings of this

Court that a person need not have been the object of

discriminatory practices to have standing. Id. at 177-

78 (quoting Clarke, 479 U.S. at 399-400). Thompson

also held that the term ‘aggrieved’ in Title VII covers

“any plaintiff with an interest ‘arguably [sought] to be

protected’ by the statutes.” Id. at 178 (citation

omitted). The only plaintiffs this Court held excluded

were those “whose interests are unrelated to the

statutory prohibitions in Title VII.” Jd. Although the

Bank submits that Thompson reinterpreted who a

person “aggrieved” is in a manner logically applicable

to the FHA as well, Thompson expressly recognized

that Gladstone, which upheld municipal standing to

bring an FHA case over lost tax revenues, is

“compatible with the ‘zone of interests’ limitation that

we discuss” here. 562 U.S. at 176.

If the narrowed approach of conveying standing

only to direct victims of discrimination that the Bank

asserts applies to Title VII and should apply to the

* Gladstone recognized that “[ijf [defendants'] steering

practices significantly reduce the total number of buyers in

the Bellwood housing market, prices may be deflected

downward.” 441 U.S. at 110. Then, with language applicable

here, this Court authoritatively held that 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.” Id. at

110-11 (emphasis added).

15

FHA were valid, Thompson would not have stated

that “if that is what Congress intended, it would more

naturally have said ‘person claiming to have been

discriminated against’ rather than ‘person claiming to

be aggrieved.” Jd. at 177. This Court rejected this

“artificially narrow” reading because it “contradicts

the very holding of Trafficante ſu. Metro. Life Ins. Co.,

409 U.S. 205 (1972)], which was that residents of an

apartment complex were ‘person(s] aggrieved’ by

discrimination against prospective tenants.” Id.

Thompson clearly recognized that the zone of

interests protected by Title VII is broad. Id. To satisfy

it, plaintiffs interests just need to relate to the

statutory prohibitions in Title VII. Jd. That conclusion

concerning Title VII, however, does not dictate a

standard applicable to the FHA because the City’s

injuries flow from the Bank’s racially discriminatory

violations of the FHA and adversely affect the City’s

efforts to promote and seek to maintain a diverse,

stable, and integrated community through various

programs and numerous city agencies and

departments, as the City has contended all along. App

l-a-6a.

While Thompson called some of Trafficante’s

dictum respecting Title VII “ill-considered,” Pet. 10

(quoting Thompson, 562 U.S. at 176), the Bank

eschews the care that this Court itself took in making

the statement. The rejected Trafficante dictum

concerned the scope of Title VII, not the FHA. See id.

Nevertheless, Thompson found no error in the

statement that FHA standing was as broad as Article

III, specifically approving those statements as it

appeared in Gladstone, 441 U.S. at 109, for its correct

understanding of “the ‘zone of interests’ limitation”

applicable to the FHA. 562 U.S. at 176. It further

16

emphasized that Thompson concerned “Title VII

rather than Title VIII [FHA],“ a wholly different

statute. /d. Thompson does not require a reevaluation

of FHA precedent by this Court, particularly in the

complete absence of a circuit conflict.

3. The Bank’s petition does little

more than ask for correction of

a claimed error.

Here, as the Eleventh Circuit held, the City’s

interests were well aligned with the statutory

prohibitions found in the FHA. It specifically ruled

that “to the extent a zone of interests analysis applies

to the FHA, it encompasses the City’s allegations in

this case.” Pet. App. 47a. Thus, the Bank’s real

complaint is not that the Eleventh Circuit failed to

undertake the zone of interests analysis, but that it

erred in its conclusion after reviewing the applicable

precedent. In fact, the Bank calls the Eleventh

Circuit’s decision “plainly wrong.” Pet. 12. However,

this Court does not sit as a court of error to review and

correct potentially erroneous rulings by lower courts.

After all, at least since the Judiciary Act of

1925, this Court has not sat as a court of last resort,

concerned primarily with correcting errors and

vindicating the rights of particular litigants, but

instead resolves conflicts among the circuits and

articulates legal rules and principles in cases with

broad legal or social significance. Cf. Stack v. Boyle,

342 U.S. 1, 13 (1951) (Jackson, J., concurring)

(certiorari granted for only general and important

problems). There is no warrant to depart from that

approach here. This Court has emphasized:

17

A federal question raised by a petitioner

may be “of substance” in the sense that,

abstractly considered, it may present an

intellectually interesting and solid

problem. But this Court does not sit to

satisfy a scholarly interest in such

issues. Nor does it sit for the benefit of

the particular litigants.

Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70,

74 (1955) (internal citations omitted).

Rather, as Supreme Court Rule 10 makes clear,

certiorari should rarely, if ever, be granted “when the

asserted error consists of erroneous factual findings or

the misapplication of a properly stated rule of law.”

Thus, “it is very important that we be consistent in

not granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties.” Id. at 79 (quoting Layne & Bowler

Corp. v. W. Well Works, Inc., 261 U.S. 387, 393 (1923)).

The Petition constitutes of little more than an

attempt to appeal a claimed error and should be

denied.

III. The Second Question Presented Seeks an

Advisory Opinion.

Suggesting that it would promote efficiency,

Pet. 16, the Bank asks this Court to determine

whether the City is an aggrieved person for purposes

of the FHA, as its second Question Presented. Even if

this Court were to grant the first question, no purpose

would be served in addressing the second. The record

in the case before the Eleventh Circuit consisted of a

complaint and briefing on the motion to dismiss. Since

18

then, the complaint has gone through two iterations,

including new paragraphs that add further detail to

the alignment of the City’s interests with the purposes

and thrust of the FHA. For example, absent from the

original complaint but detailed in the second are the

efforts of the City’s Department of Community and

Economic Development to operate the City’s fair

housing program, reduce illegal housing

discrimination, monitor and investigate fair housing

complaints, support fair housing litigation, and

conduct research to identify and address fair housing

impediments in order to improve the overall quality of

life in the city. Third Am. Compl. at 4 20, City of

Miami v. Wells Fargo & Co., No. 1:13-cv-24508 (S.D.

Fla. Apr. 29, 2016), ECF No. 80.

Any determination of whether the City has

alleged a sufficiently cogent connection between the

harms it has suffered and the purposes and

authorizations of the FHA should not be determined

on the basis of the original complaint, a pleading no

longer operative in this case. Instead, such a

determination of the adequacy of the original

complaint’s allegations to determine whether the City

is aggrieved would constitute little more than an

advisory opinion, as there is no present case or

controversy regarding those allegations. Moreover, it

is not the practice of this Court to examine the record

developed subsequent to the appeal in the first

instance. See, e.g., Boumediene v. Bush, 553 U.S. 723,

772 (2008) (recognizing the “ordinary course” is to

remand for consideration in the first instance.)

After all, “factfinding is the basic responsibility of

district courts, rather than appellate courts,” and

appellate courts should not resolve “in the first

instance this factual dispute which had not been

19

considered by the District Court.” DeMarco v. United

States, 415 U.S. 449, 450 (1974).

Even so, the Bank quotes and paraphrases the

FHA to the effect that an “aggrieved person” is a

“person who claims to have been (or believes he will

be) injured by a ‘discriminatory housing practice.”

Pet. 19 (quoting 42 U.S.C. § 3602(i)) (parenthetical in

original). If the City’s original pleading somehow did

not meet that standard, which both the City and the

Eleventh Circuit thought it did, Pet. App. 47a, the

City’s Third Amended Complaint adds more detail

that should be considered, if the question remains

unanswered. It provides the necessary connection

between the City’s injury and the FHA’s language

more explicitly than the original complaint,

demonstrating that its government efforts to secure

fair and equal housing are similar to that of the

nonprofit corporation in Havens, which the Bank

concedes “had an interest in nondiscrimination as an

end in itself.” Pet. 19. In Havens, the nonprofit alleged

that it was “frustrated by defendants’ racial steering

practices in its efforts to assist equal access to housing

through counseling and other referral services” and

“had to devote significant resources to identify and

counteract the defendant’s sic] racially

discriminatory steering practices.“ 455 U.S. at 379.

This Court held, if the allegation is true, the

organization unquestionably suffered a concrete and

demonstrable injury to the organization's activities

with the consequent drain on the organization's

resources” sufficient to confer standing under the

FHA. Id.

Miami's allegations in its current pleading are

no less within the embrace of the FHA. The Petition

provides no basis for a review of allegations that have

20

not been reviewed by either the District Court nor the

Eleventh Circuit and should be denied.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be denied.

Date: May 20, 2016 Respectfully submitted,

Robert S. Peck

Counsel of Record

CENTER FOR CONSTITUTIONAL

LITIGATION, P. C.

777 6% Street, N. W., Suite 250

Washington, DC 20001

(202) 944-2874

robert. peckœcelfirm. com

Victoria Méndez

CITY OF MIAMI

OFFICE OF THE CITY ATTORNEY

444 S.W. 2nd Avenue, Suite 945

Miami, FL 33130

(305) 416-1800

Erwin Chemerinsky

UNIV OF CALIFORNIA, IRVINE

401 East Peltason Drive

Educ. 1095

Irvine, CA 92697

(949) 824-7722

Joel Liberson

Howard Liberson

TRIAL & APPELLATE RESOURCES

400 Continental Blvd., 6th Floor

El Segundo, CA 90245

(310) 426-2361

21

Rachel Geman

LIEFF CABRASER HEIMANN &

BERNSTEIN, L. L. P

250 Hudson Street, 8th Floor

New York, NY 10013

(212) 355-9500

Attorneys for Respondent