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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2016

## Text

“> |
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0652%3A03. Public record. Not legal advice.