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Case number 20-7T04 Stanley Webb appellant versus United States Veterans Initiative, U.S.

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Vets and Community Partnership.

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Ms.

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Fierro, appointed amicus curiae for the appellant, Ms.

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Steele for the appellees.

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Thank you, Your Honors.

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May it please the Court?

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Good morning.

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Good morning.

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My name is Thomas Birch from the University of Georgia, appointed by the court as amicus in support of Mr. Stanley.

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Well, thank you for having us today.

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Today, one of my third year students, Molly Fierro, will be arguing on our behalf, and I'll be standing by.

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Thank you very much, Your Honors.

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Thank you.

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Thank you, Your Honors and may it please the court.

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My name is Molly Pharaoh and I will be arguing as amicus in support of Mr Stanley web the appellant in this matter.

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Mr web is a disabled military veteran whose subway department through us vets housing programs.

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The district court dismissed his Fair Housing Act sex discrimination claim under Rule 12B1, finding that because he did not pay rent, he was not that black standing over his claim.

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In the alternative, it dismissed under Rule 12B6, finding that he failed to allege an injury because he did not pay rent.

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This court should reverse that decision because the district court misread the Fair Housing Act, applied the wrong rule of civil procedure, and applied that rule the wrong way.

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First, it had jurisdiction over Mr. Webb's claim, like all other claims arising under federal law, under federal question jurisdiction.

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And the Fair Housing Act only required him to be an aggrieved person.

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The provisions that Mr. Webb sued under, 3604A, B, and D, allow any person to sue.

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And that term aggrieved person merely requires someone to show that they experienced discrimination in related to housing.

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It's not a jurisdictional question because the Fair Housing Act, as held by the Supreme Court in Bank of America versus City of Miami, doesn't create a jurisdictional limit, but rather goes as far as Article III would allow.

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As this- Well, Ms.

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Fiora, what about the district court and the government's- not the government, the appellee's argument that you're not aggrieved unless you've paid rent?

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So that's not the rule.

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What's your response to that?

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Our response is first that the Supreme Court's decision in the city of Miami wasn't the case of a renter bringing suit.

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In other cases like Haven's Realty, which was the Supreme Court case about testers who had no intention of ever renting, but were merely showing up to see whether or not there would be discrimination when they asked about housing conditions.

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that those people didn't pay rent either.

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And that's supported by the clear language in the statute that says any person.

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Now, there is another part of the fair.

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Wait, wait, hold on a second.

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Yeah.

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Let's start with the statute rather than the cases.

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So I agree with you about the statute, but maybe for a different reason.

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It says it's unlawful.

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Tell me why this if this is wrong.

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It says it's unlawful to refuse to sell or rent.

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after the making of a bona fide contract or otherwise make unavailable or otherwise make unavailable or deny dwelling because of sex.

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And isn't that what happened here?

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Didn't the appellee make an apartment unavailable on the basis of sex according to the allegation?

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Yes, he was.

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Why isn't that why the statutes clear.

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It's not that it's any person.

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It's that the statute says otherwise, or otherwise make unavailable or deny.

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Is that right or not.

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Well, that does seem clear to me as well, your honor.

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But what I would add is that there has been some discussion about this other provision in the statute, F1, that adds the term any renter or buyer.

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So that seems to show that there was part of the statute where some housing claims did relate to you being a renter or buyer.

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So that's F1, but A, B, and D, which is what he's doing under, don't require that at all.

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So that's.

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If you're right about that, we don't have to get into the 12b1 issue at all.

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We then go on to the 12b6 issue.

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That's right.

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there's no reason here for this to have been dismissed on 12B1 and really 12B6 would have been the more plausible argument for the district court to dismiss under.

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That being said, at this stage, particularly given that he was a pro se pleading, the district court should have made every inference.

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With reference to the pro se pleading, nonetheless, are we going with both complaints

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That may greatly affect whichever 12b we operate under, whether we're going under the amended complaint, which doesn't really seem to allege a discrimination claim.

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It just grabs somebody's roommate mostly.

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Or are we going under both complaints?

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What's the status of this?

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You understand what I mean?

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I do.

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And it's true that there's a difference between these two documents he filed.

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When he filed his amended complaint, he attached a letter explaining why he was amending it.

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And he was concerned about things like addresses and adding additional facts.

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So Mr. Webb seemed to understand his amendment as a supplement to the original complaint rather than a replacement.

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But even if this court only wanted to look at just the amended complaint,

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He still references the Fair Housing Act and sex discrimination and specifically references the previous action before the Office of Human Rights, which was about this same set of facts.

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And in his response to the motion to dismiss, he also dealt with these Fair Housing Act sex discrimination claims head on.

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He answered the issue of whether this was really about his roommate and said that what he was concerned about was the preferential treatment of the program.

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in allowing a female participant access despite being less qualified than she was.

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So it's not just that we look at, the question is not just whether we look at both complaints or only the amended complaint.

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Even if we look only at the amended complaint, isn't the teaching of our decision in Brown versus Whole Foods that when we have a pro se plaintiff, we should look at all the documents and hear that would include, I mean, that would include the documents in front of the DC Office of Human Rights?

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So I think Brown does say, as you're suggesting, that a certain leniency is required, particularly on a 12b6, where the question is whether there is any there there, and looking at all of the pleadings that he filed.

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But those additional documents from the Office of Human Rights were actually brought in as part of US vets' motion to dismiss.

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Now his complaint itself and his amended complaint did refer back to those previous

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disputes.

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So there wasn't a concern here that perhaps the defendant didn't know that he was concerned about sex discrimination or that the district court judge didn't know that that's what he was asking them to rule on because he has consistently alleged that he is concerned with sex discrimination in the way that he was treated.

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How would you state the standard of for a pro se

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plaintiff for a district court, what should the district court look to in a situation like this and with what kind of a lens?

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What's the universe of material that they should look to?

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they should consider the filings on the question that's before the court, particularly a dispositive, a motion like a motion to dismiss.

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So that would include here his initial complaint, his amended complaint, and perhaps also his response to the motion to dismiss made by US FETS, particularly because in the interest of justice and of getting the case right, it's important to look at what he was able to allege and what he did connect to this issue.

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If there are no further questions, madam presiding judge, I'll reserve my remaining time for rebuttal.

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Thank you.

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Actually, my colleague, sir presiding judge is presiding, Judge Datil.

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Good morning, your honors.

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May it please the court.

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My name is Laura Steele.

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I am here on behalf of the Eppley US FITS

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Your Honor, at its core, this is not a Fair Housing Act case.

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Could you just start with the language?

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I mean, that's because there's no rent paid?

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Is that your comment?

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Well, Your Honor, Judge Tatel, I don't think that you necessarily have to reach that question because there was no... You argued that in your brief.

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We did, but... Well then, could you just focus on that argument and...

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the language of the statute, the statute says, subsection eight says, or otherwise make unavailable or do not.

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And when Congress wants to use, when Congress wants to, he says, make it unavailable or do not, which is exactly what happened here, right?

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No, what happened here.

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Wait, let me just see.

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He asked for a single occupancy apartment.

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And his allegation is that he didn't get it because they gave it to a woman, right?

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Four months after he was in an apartment, a shared occupancy.

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Let's divide this up, OK?

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The one question is, do you need to be a renter?

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Do you need to pay rent?

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The second question that I hear you raising is, even if you don't,

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There's something about, there's a problem here because the denial of the single occupancy apartment occurred after he was in the building, right?

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Those are your two arguments.

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But I just don't see where you get that from the statute.

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The statute says that the statute clearly, this part of the statute A, clearly is not limited to buyers or renters, like F, like sub F is, and,

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The Fair Housing Act prohibits discrimination in the conditions of the building, right?

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So I just don't see where you get this argument.

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Well, Your Honor, this circuit has not decided the question.

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Still, I'm looking at the statute.

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Tell me where you get your argument out of the statute.

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Well, the statute provides that there has to be a deprivation of housing first and foremost, a deprivation of housing.

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There has to be a refusal to rent.

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There was no refusal to rent.

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But his allegation is that he was denied a single occupant apartment because of his sex.

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No, not exactly.

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What he's saying is that four months after he received housing, that a female occupant,

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was given her own, a female veteran was given her own unit.

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That's not in connection with his rental, even assuming that he was a renter, even assuming that he comes within the statute's parameters, because number one, he was never deprived of housing.

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And number two, it was post acquisition.

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But Ms.

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Steele, could we possibly read the act that way?

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Just consider a hypothetical where you have a public housing project with too many people who want families that want multi-bedroom units.

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There just aren't enough in the project.

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So everybody coming in gets put in a too small unit and they're all there and they're all housed, but they're in a too small unit and it's being given to them subsidized and they're not paying.

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So they're not renters.

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then certain families leave and there are available openings, surely the Fair Housing Act would prohibit the requiring of earlier entrance into the program to wait because they're black and moving the white families into the more ample size apartments.

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I mean, that has to be classic discrimination under the act.

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And if that's prohibited, I guess the question is based on the allegations generously read,

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why isn't that the same thing that's at issue here?

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It's that people who have housing and what they want is to be transitioned to housing that's more desirable and they're being steered based on a prohibited classification.

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Right.

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Well, this court has said that the Fair Housing Act

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affects accessibility of housing, not habitability.

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Could you talk about the statute for a moment?

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Take a look at section, just following up on Judge Pillard's question, look at section sub B. Do you have sub B in front of you there, 36.4B?

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Yes, sir.

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Okay, it says, it's got some language in it, and then it says, you can't discriminate in provision of services, services or facilities.

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That's what the statute says.

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services or facilities, he's, he's asking for a single occupancy apartment that he was denied because of gender.

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But that is not clearly articulated in his amended complaint.

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And it is not clear.

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No.

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Because it's not clear what services he's talking about in his amended complaint.

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If you take the two complaints together as council suggested, is it not suggested at least clearly enough for us to discern from a pro se pleading?

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That four months after he has housing he wants a better unit or what he considers a better unit.

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Doesn't the pleading show that she also was an incumbent resident in housing at the same time?

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I think you have a point that you really haven't made that he hasn't really shown that he was deprived because of sex, only that she was awarded because of sex, which is not too subtle a difference, I don't think.

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And it may mean that he doesn't survive 12b6.

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But just as far as the question of whether the allegations will get him there, having alleged the housing claim, if you take the two together, it's fairly clear.

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And if that's what this case is about from his, at least that's one thing this case is about from his pleadings.

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From his perspective, yes.

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Yes.

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But that is not,

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under the statute and under the case law interpreting the statute, that is not a deprivation.

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That all of his complaints are post acquisition, deal with post acquisition events.

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Let's go back to Judge Pillard's question on that.

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If the case were a race case in a multifamily housing situation,

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Would the fact that they were applying for a vacancy move to another vacancy later on deprive them of an action under this Act as opposed to applying from the beginning?

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Yes, I think because that in under Judge Pollard's scenario, that would deal with habitability, not accessibility.

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The fact that you are in a unit

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Now it's different with a disability.

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No, no, no, no.

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The hypothetical is, at least I think it is, is they have decided to allow only white people to have single occupancy apartments.

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All the black people are in the building, but they can't have single occupancy apartments, but white people can.

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Is that legal?

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No.

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But that's not what happened here.

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He's in a multi-occupant apartment.

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He wants to be in a single one.

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And he says the only difference between Judge Pillard's hypothetical in this case is it's race.

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Her hypothetical is race.

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This is gender.

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What's the difference?

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Well, because US vets did not place her.

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US vets had

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only two people in single occupancy units.

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And they were both in a different program.

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You're getting into the facts now.

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We're talking about his allegation.

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This is 12-6.

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The question is, is his allegation sufficient to survive?

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I think not.

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And this is on your ledgers.

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I think not, because the decision to place her in a single occupancy unit occurs four months after

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He's already in housing, so it doesn't result in a deprivation to him.

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Well, then I go back to the hypothetical.

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It does.

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It results in... It's the same thing.

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The Black people, the African Americans are all in the building, in units, but they're denied single occupancy apartments.

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Or better, more desirable, whatever the... Yeah, whatever it is.

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They're not being denied housing because they've got apartments.

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That's right, I think that's why it affects habitability as opposed to availability, which is what this court has said the Fair Housing Act governs and protects.

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But so your view is that the access to a better type or category of housing is just not covered.

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So a family that's squeezed into a one-bedroom and wants access to a three-bedroom because it has many children and is denied in comparison to similarly situated existing occupants is denied based on our prohibited classification.

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In your view, that is a habitability claim is not covered.

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It's not a denial of access to the better unit, to the bigger, more appropriate unit.

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That's correct.

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And this is not a situation.

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That's a purely legal question, and that's your purely legal position.

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Yes, that's right.

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I had a follow-up question.

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We skipped over a little bit the Article III standing at the beginning in questioning this fear and talked a little bit about cause of action under the Fair Housing Act and its language.

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I took you to be arguing maybe less so in this court that there wasn't harm cognizable purposes of Article III.

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Have you abandoned

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that argument, but there is constitutionally recognizable harm.

[00:20:06] Speaker 04:
There's just not statutorily recognized harm.

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Yes, I think that under the statute, the statute requires a deprivation of housing or a denial of housing.

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And in this case, Mr. Webb had continuous housing for the entire time he was in the program.

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So he has sustained no injury and has no cause of action under the Fair Housing Act.

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Right.

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But assuming that that's the way one would read the Fair Housing Act, backing up to the constitutional question, there would be concrete harm to a person who, for example, with a large family has to live in a one-bedroom based on race, while people of a different race were ushered into

[00:20:55] Speaker 04:
a large family apartment, that would be constitutionally cognizable as harm, concrete injury, in fact, even if not cognizable under the Act.

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And so to the extent he's saying, because of my sex, I was held back from going into the more desirable sole unit.

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I was put instead with roommates.

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That would be, by the same token, constitutionally cognizable Article III harm.

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If he had a claim for emotional distress, for example, under a different statute or different theory.

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Right.

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But that's taking issue with the cause of action.

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But just as a matter of constitutional harm, it's not emotional harm he's arguing about.

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It's I'm living with roommates.

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And everybody would acknowledge on a market it's more valuable to be in a place that's your own.

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You lock the door, you don't have to deal with anybody.

[00:21:50] Speaker 05:
Maybe not.

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It's not even, it wouldn't have to be emotional harm.

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It could be just, you know, straight up monetizable harm.

[00:22:00] Speaker 04:
I mean, not that emotional harm isn't, but it would be a material harm relating to the nature of the unit.

[00:22:06] Speaker 05:
Well, you could certainly make an argument that having roommates might be preferable because of the social interaction that you have with them.

[00:22:13] Speaker 06:
That's not, that's damages.

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That's not whether there's harm that some people might not mind.

[00:22:24] Speaker 06:
It doesn't keep it from being actionable, does it?

[00:22:28] Speaker 06:
No, in our position, that's a defense perhaps on marriage or maybe just on damages.

[00:22:35] Speaker 06:
But as far as like somebody else might have a different preference, doesn't keep this from being discrimination, does it?

[00:22:43] Speaker 05:
No, but under the Fair Housing Act, since you have to have a deprivation and there is a year of it.

[00:22:49] Speaker 06:
Okay.

[00:22:50] Speaker 05:
And that's, and that's, we argued under 12 B six to judge Cotelli, uh, and asked her to dismiss on, uh, on that basis.

[00:22:59] Speaker 05:
I see that I'm running out of time.

[00:23:03] Speaker 05:
You're out of time.

[00:23:06] Speaker 05:
Yes.

[00:23:06] Speaker 05:
Did you have anything else?

[00:23:08] Speaker 05:
No, your honor, but we would submit with respect to the other issues on our brief.

[00:23:13] Speaker 03:
Thank you.

[00:23:15] Speaker 03:
Ms.

[00:23:18] Speaker 03:
Sierra, would you like a minute or two of rebuttal?

[00:23:21] Speaker 02:
Yes, thank you, Your Honors.

[00:23:23] Speaker 02:
Mr. Webb has pleaded enough to survive under a 12B6.

[00:23:27] Speaker 02:
He alleged that he was offered a one-bedroom apartment by U.S.

[00:23:31] Speaker 02:
vets after he was determined by the VA to qualify for one.

[00:23:34] Speaker 02:
But once he got there, he was told that it was not made available to him.

[00:23:38] Speaker 02:
And he later found out that a woman who was less qualified than he was, was given access to those kinds of privileges and conditions and looking at the clear language of the statute under 3604 those terms conditions of privileges are all relevant and under D making it not available for rental is also something that gets past that initial pleading stage based on what he has alleged.

[00:24:05] Speaker 02:
Dutch Pillard's hypothetical gets it exactly right.

[00:24:08] Speaker 02:
Just because someone is not paying rent, whether their housing is subsidized and they are living, even if they are paying rent, but they're living in some place, they're not literally denied housing, doesn't give carte blanche to discriminate against them on any of the protected categories under the statute.

[00:24:26] Speaker 03:
What do you cite in the statute for that proposition?

[00:24:29] Speaker 02:
for the proposition that despite, so one thing- What position of the statute supports that?

[00:24:36] Speaker 02:
So I would say that subsection D, making dwellings not available for inspections, sale, inspection, sale or rental, as well as the terms, conditions and privileges.

[00:24:47] Speaker 03:
Terms, conditions and privileges, right?

[00:24:50] Speaker 03:
That's the language of the law.

[00:24:51] Speaker 02:
Yes, and if it was true that they were steering certain people because of their characteristics away that would still be a violation of the act and cognizable under the Fair Housing Act.

[00:25:03] Speaker 02:
And the term in the statute the definition of to rent isn't even about payment, it says to exchange for a consideration.

[00:25:12] Speaker 02:
So that requirement of making it attached to what you're paying for really isn't what his claim is about.

[00:25:18] Speaker 02:
It's about being denied access to an entirely different program that afforded additional privileges.

[00:25:23] Speaker 02:
Thank you.

[00:25:26] Speaker 03:
Thank you.

[00:25:28] Speaker 03:
Ms.

[00:25:28] Speaker 03:
Ferro, the court appointed Professor Birch to serve as amicus and we appreciate your help.

[00:25:34] Speaker 03:
You've done a fine job.

[00:25:35] Speaker 03:
Thank you.

[00:25:36] Speaker 03:
The case is submitted.