of the lease holders in this case was legally prosit and otherwise qualified to run a lot in the park yet despite that fact when the policy was in force they and their families were forced to leave the park as a result of the policy the effect on the leaseholders and their families as lead in the complaint plausibly states a disparate impact claim under the fair housing act the contrary decision reached below was air the starting point judgment stage but he made it clear that he disposed of the disparate impact claim at the twelve b six stage now inclusive communities the supreme court stated that f h a disparate impact claims are on doubtingly cognized will given the statutes best understood as imposing a duty on plaintiffs to identify a policy or policies responsible for a statistical disparity in the preceding sentence articulating what is the policy of the policy your honor is the policy requiring residents to provide a social security card or in the absence of a social security card a visa i ninety four and passport no other words it is a policy that requires proof of legal presence as a prerequisite for living in the so your honor in the complaint we first identified the policy and explained how that policy was tethered to various statistical disparities and then proffered statistical evidence at the state level showing that latinos for example are a disproportionate member of the undocumented community and then conversely the undocumented immigrants are also ordered to dish the wrong this your honor we believe the district court erred in historical analysis and concluding that the context of this particular disparate impact claim was outside the usual context of disparate impact claims such that as a result the disparate impact claim here could not go forward in particular the district court traced gregg's and other disparate impact decisions and found alternately that here the context was different and distinct from the context in which disparate impact claims are rose however as we demonstrated in our brief since griggs the supreme court has expanded disparate impact liability to numerous other arenas including age and gender discrimination according we believe th statistical evidence identified in the complaint in conjunction with the fact that he specific policy as opposed to a bare statistical unbalance was identified in this case now inclusive communities the supreme court sided wards understood as an analog to the requirement that a specific hiring practice must be identified here however a specific policy was identified and the policy requirement inclusive communities operates to winnow out a number of lawsuits indeed the part is is there a policy and once you get to that position the policy is there you've got to spare it impacted promise face a case there's another question to be asked down the road probably might that sort of inverting it my seeing the policy as to cause it as opposed to disparate impact arises from the the policy so judge when i would agree in essence that our position is the fact that at the pleading stage we plausibly stated a disparate impact claim by identifying a policy tethered to a statistical disparity flowing from that policy and the district court erred by putting the cart before the horse in a number of respects so you're saying the legitimate non just  discriminatory reason in the burden shifting analysis was not properly before the court and the court relied on that well your honor our position is that given that the complaint and the subsequent evidence proffered summary judgment properly made out a pr facie disparate impact claim the burden then shifted to the other side to prove a business necessity sufficiently compelling to justify the challenge practice yes it is the next question going to be whether there is a legitimate reason passing this policy which has not been reached well your honor the reason i am answering the question that way is because the parties did brief a disparate treatment claim that they just record interpret the complaint as asserted you seeking relief under families and so it's pretty big impact yes your honor we believe that the impact was disproportionate on latino families a bigger really relying on the fact that they are undocumented aliens sign to me that isn't at the essence what you're saying that they are being treated differently because of national origin when in fact they're being treated as they are because of their unprotected status of being undocumented aliens is next year i would agree that the statistical evidence in the complaint certainly relies on the documented status but wouldn't further submit that the complaint offers anecdotal evidence for example that the leaseholders the male plaintiffs in this case were all legally present and yet were affected by the policy in this case and ordered from that or you know yes your honor that is correct are you drawing a distinction between the males and females in your complaint no not a distinction per se your honor rather our position is that both of those pieces of evidence together more than enough satisfy the robust causality requirement we offer the statistical evidence showing the outsized impact on the undocumented population and then also offer anecdotal evidence of the effect on the male plaintiffs with respect to the legitimate nondiscriminatory reason point you just returned back the reason that i made a distinction is because this court held in betsy versus turtle creek associates that after a prima fascia disparate impact claim is made the burden shifts  necessity so efficiently compelling could justify the challenge of practice and that is a different and more difficult burden than the legitimate nondiscriminatory reason articulated by the apple reason this case now the district court never reached the question however and given the factual disputes that predominate on that issue it makes the most sense for the court to vacate in agreement on that question apple users offered a number of legitimate nondiscriminatory reasons that they articulated before th court however as demonstrated in our brief and through the record there are a number of factual disputes for each of the master whether they rise to the level of of a business necessity and in any of that a number of them can be accomplished through less discriminatory me the chief example identified both below and in our brief is the use of individual taxpayer identification numbers which as opponents have demonstrated can be used for background checks and to check carry out credit checks and to ensure in this case have identified a specific policy responsible for the statistical imbalance it is important to recognize them rather than just offer a statistical imbalance from various years based on population shifts one of the things that apple has claimed that we are doing rather in this case we have identified a specific course of conduct pursued by the applebee's and then heather that course of conduct who destroyed his school imbalance in this case  beings i'm not sure this is the case that happens if this is true says i i think that the interest here of the former what officials is just to ensure that and to know that the heightened pleading standard that the court district court appeared to apply is inconsistent with hud's interpretation of the fair housing act as embodied through the hud discriminatory effects rule and through the guidance documents that they have released is in their briefs have argued that the hot enforcement framework is somehow irrelevant or has been overridden by the inclusive communities case to the contrary we believe that the case does not undercut the regulatory framework but in fact is consistent with the regulatory framework there is nothing in the inclusive communities opinion which cites to the hood role in multiple instances but indicates that the the her that the court has made disagreed with the h roll or intended to override it and in fact the opinion is consistent with the burden shifting approach but set forth in the hud disparate impact regulations first the hundred rule requires that a practice actually or predictably results in a disparate impact on a protected class and that actually in predictably results language effectively achieves the same result as the court's robust causality requirement it would be a mistake as appellants counsel has pointed out to read her best cazalet a language to require something more than a showing that a question or challenge policy has actually and predictably resulted in a disparate impact second the hundred rouble allows for a rule twenty eight the court is absolutely correct this case was decided on the application of inclusive communities to the complaint but that's not how the issue was framed before this court in the statement of issues it was framed as the district judge determine if the policy was not a remnant of the past intentional discrimination of this country hard stop there is no reference to an inclusive communities there is no statement that the district judge failed to properly apply inclusive communities there is a complete failure to comply with rule twenty eight and this court has held previously that that constitutes a waiver of arguments are not set forth in the statement of issues what if th impacted differently because of their protected status that's through quorum and under the fair housing act and that's the requirement articulated by the supreme court in inclusive communities what's being presented in this case is you can demonstrate and make out a prime facie case of disparate impact by simply identifying a policy and statistics oh the other way around then a financial test that this will disparity and then then indicating that arises from polls well but what they've done here is said in this particular area fairfax county latinos happen to be the largest constituent of undocumented immigrants just dealing with inclusive community used whose community didn't say look to see if there's a policy that caused the effect which is what it looks like to travel just that it goes the other way look at the disparate impact because justice kennedy says yes in a five four decision you can use requirement the court repeatedly held that simply pointing to statistical imbalances are not sufficient to state a claim so the fact is there but they're saying that the parks policy resulted in housing becoming available to latino is at a disproportionate rate now it seems to me that so much of what ted tell us mr doing and what you were doing in your brief is to say that this policy was reasonable anti car bring all these things but that's at the next fission to go forward don't we but it has to be because of the fact that they're latino not because of the fact that they're in the united states illegally and when you look at their complaint in paragraph forty policy then inform this but if but others from from the other view if you look at that is there statistical disparity here or is there a disparate impact here years if the answer is yes then you moved it w policy in the you for say yes you basically get yourself to the promised face a case of it there's another day he might look like to be could wind down the road once you get into the is there a legitimate reason for this policy could not be on that well i think the court there were sufficient and we argued that issue but let me go back to eat what you just didn't get well in the back of or as i mean there's no question you've got a strong argument think if the court says if you can identify a policy and say well if you apply that policy to this segment of the population which already has an existing statistical imbalance then you could make out a claim for dispar impact the supreme court inclusive community said absolutely not it's specifically said that defendants are not responsible for the statistical imbalances that they did not create so all the they've alleged is not that latinos are treated differently but you know it's comply with the policy what they're saying is illegal latinos in this country cannot comply with this policy and they do not even allege  latino illegal immigrants are treated differently so if you look at the class it's affected the legal aliens there are no allegations that they're impacted any differently than an illegal alien from korea or norway or any other if i believe when the court said there must be a robust causal connection it was applying to because of requirement under the fair housing act there can be no claim whether it's disparate treatment or disparate impact unless it's because of the protected class that's the robust causal connection that has to be made and what is clear here is that the female plaintiffs are impacted not because they're latino they're impacted because they're even legal aliens the male plaintiffs who are also latino complied with the policy and signed multiple leases so that's been that's the missing link and it has to be part of a prime  there is love no liability that is part of it but i think the underlying issue here is under the fair housing act and this is straight out of the statute it only prohibits acts that discriminate because  example if they were evicted your male friends are also in so why don't you count them in them because they are on their own have complied with the policy and signed lisa's the fact that the female plaintiffs are not and i think this is an important point the female plaintiffs are in a different position not because they're latino but because they're in the united states that's really the dissenting view in a case that's not majority but i think that is exactly the majority view it one of the things that i better read differently but that dissenting opinion says just about what you just said right well what the court said in the majority opinion and clearly there was a lot of back and forth one of the things i think is important to highlight what the decision was is there was criticism of the gallagher versus magner case when the circuit in that case the eighth circuit affirmed or allowed a dispar impact claim to go forward under the simple argument there was a policy saying you have to get rats out of the properties statistics were presented to say african americans and hispanics will be disproportionately impacted by that policy and the supreme court said absolutely not that does not state a disparate impact claim in the eighth circuit has since inclusive communities state of the calendar is no longer good long the same theories being presented here you apply a policy to illegal aliens as just as judge ellis found when you have a disparate impact claim if you're latino hard stop there doesn't have to be any causal connection at all all that is required is a policy and you apply to a segment of the population which is what the gallup record did and you have a disparate impact claim in the majority of the court was clearly saying that is not enough statistical imbalance is not enough there has to be robust causalities and by robust causalities the court is hearkening back to the because of requirement under the fair housing act there cannot be clane of any kind under the fair housing act unless there are allegations that the impact is because of their race in this case what they've alleged themselves is a policy target illegal aliens what they've alleged themselves is the reason that the female plaintiffs cannot comply is not because they're latino you will not find that in their complaint what they've alleged is they cannot comply because they're illegal aliens and we argued to the district that's where they are and then once you get that point there then you get into you're going to fall into the next stage which we're just not there yet but and i think i'll talk about that next stage but i really think when the when you look at inclusive communities and robu causalities the court talked about policy and statistics those are good and you have to have those you can't get out of course i don't think there was a policy in that well and that was one of the issues and that's the difference is that they don't have a policy and of course if you don't have you got despair right but that that the the key issue that's required for a prime facie case is that the policy is causing the impact because of their race that has to be the requirement i i don't think it inverts and i think what it does in the cases that have been decided post inclusive communities that we sat in our brief for example the wells fargo case from the ninth circuit they all have the same common thing the policy impacted in the west wells fargo case all the borrowers the same yes to two sickly speaking it impacted protected classes more because that was the makeup of the group but that's not enough tical evidence is also all of once you establish that that in fact you've got a statistical imbalance there is a policy of whimsy once you get there you s the rest of the cases look at the t b s case from the northern just develop noir which looked at a rental ordinance in that case and the same theory is being presented here if you apply this rental policy to this to testicle group it will have a dispar impact because the make up is majority of a protected class the supreme court made it clear that cannot state a claim for disparate impact because you can find act statistical disparity just about anywhere merit treatment disparate impact type claims and the fact that you can have a facially neutral type law that basically posit everybody but the impact of it is going to result in this kind of that to keep a spare and if a policy does that that leverage is that then you get into the whole case to determine well ok we now have established as a disparate impact here you have to be viewed in reasonable but the reason to do it the key you're out of there was it has to cause it it cannot simply be if you applied this policy two miles to the west i don't think it says and latino's or maybe where we differ and i don't think you start with a policy because there was no policy in inclusive  if the plan is cannot point to a policy causing the disparity causing the disparity that's the key where you are at that point i mean if you so opposed to see is this policy in fact has statistical imbalance an already existed west imbalance already exists the statistics that they say that latino is in this particular part fairfax county are the majority of illegal aliens that's their basis for saying there's a disparate impact they're not alleging that they are impacted because of the fact that they're latino and i think that's a critical point where we go with that if we say you start out cause i see where you go  definition a policy can cost certain things to happen but if it's already existing that's not the analysis of of a disparate impact case but the key i think in the causing the disparity is how you see an inclusive communities handled by federal court since that time and time and again at the motion to dismiss stage the prime facie case is not made because the allegation is simply a policy is being applied to a group of individuals and the makeup happens to be that  majority are protected class and the courts of uniformly said if you're affected the same as everybody else then you cannot make out a prime facie case live in a moment when people question the church because i think we are sort of the allegation is the policy targets illegal aliens and then the argument in the allegations are the most predominant segment of the undocumented population are latino so they're impacted not because they're latino they're impacted because in that part of fairfax county they happen to be the largest segment of undocumented aliens if you move two miles to the west and the majority were undocking of undocumented aliens were from korea then latino's would not have a claim and that shows why this makes no sense the court in inclusive communities was critically concerned about letting this disparate impact plane go too far because of requirement of the fair housing act itself cannot be met and i think that's the essential question for the court what is the cause of the impact of the policy and if you answer is it's not because there latino then there is no cla calls that the educational level and you tell me there's no way you could be a disparate impact arises from that because the policy didn't cause it is simply distinguishing under inclusive communities i think that's correct and when you look at the courts that have interpreted inclusive communities that's what they say if you show that the impact falls on a protected class more heavily that's not enough you have to show that it falls on the more heavily because of their protected status and that's what's missing here if you could start off i'm concerned by the aspect of your argument that it's doing it's just pointing to the protected group let's say every trailer park in america has this policy how can that be that you have a protected group status that based on the exact same policy that will be different depending on where geographically it's being polite the answer your honor is that the plaintiff would still have to show a disproportionate burden through specific facts or statistics and so in those other populations or other areas if there was a policy identical to the policy at hand the plaintiffs would still have to proffer statistics and facts right but what i'm ok and so let's say there's a trailer park in in and dale and they would be affected by this policy if they are in fact undocumented well they're not protected if you move seven would be again that this is largely a byproduct of the fact that this is depleting stage the because of requirement in the f h a is an ultimate question of liability as this panel pointed out a number of times the defendant has the opportunity business necessity but at the prima fascia state right but that's the legitimate nondiscriminatory reason in the burden shifting part of the analysis but i'm trying to back it up a little bit earlier and ask you how can it be that the exact same policy would grant protected status to a group based on national origin six miles to the east but not do so six miles to the west that i'm i'm having trouble grappling with that i'm sympathetic with what you're saying but to me that's it's somewhat of an obstacle that is a very statement your honor and judge can to return back to your question the only thing we would submit on the point is that again it's not just enough to show a difference in absolute numbers of individuals or particular races or classes that there must be a demonstration of a disproportionate burden and in maybe and some cases that a disproportionate burden could be shown and it may be in some other cases but a disproportionate burden could not be shown but ultimately i facially neutral policy of like this one can be challenged under a disparate impact theory by proffering statistics showing a disparate impact along with the policy from their liability is certainly not automatic given the other prongs of the framework now i want to also address opposing counsel's treatment of gregg's versus do power because i think that is a useful analogue to guide this court's decision making now true in inclusive communities the court did caution that defense could not be held liable for disparities they did not create but again this goes to the ultimate question of liability indeed one could argue that in greg's for example that the defendant did not create the facially neutral distinction on the basis of a diploma yet nonetheless a disparate impact claim was stated and the reason for that is that there was a specific disparity hazard to concrete action taken alternately at the twelve b six stage based on inclusive communities the opponents in this case discharge their burden they identified a specific concrete policy