my name is robert peck i'm here on behalf of the city of los angeles i hope to reserve five minutes of my time for rebuttal the city of los angeles commenced the sachin because it had evidence the bank of america we allege that it was continuous since ninety two since two thousand and four to date today the bank of the district court granted the bank's motion for summ judgment on the statute of limitations issue in doing so the court used the word test and reached the wrong conclusion each of its rulings were built on the rocky foundation of that erroneous view of the statute of limitations the district court required the city to show that the discriminatory loans were issued and went to foreclosure and to cost the city money or within that to your limitation period that it could not refer back to those loans that occurred before that period and that the city essentially had to prove its entire case why body injury and damage with respect to the events within that two year period in order to be able to invoke the continuing violation analysis the that was wrong essential limitations measures time from when the claim creates let me let me see if i can understand how this  so the complaint is you just answered judge hawkins question alleged practice is going back to two thousand and four yes correct but the statute of limitations is only two years  impact case we need to take a look at a substantial number of loans and whatnot we need to prove an impact case not a disparate treatment case and so you're looking at a broader range of information and data and whatnot is that right well activities correct yes so the way you get over to is with the continuing violations doctrine that's correct right yes ok so as i understand from the litigation you set this case up you agreed to focus initially on whether or not you could establish a continuing violation yes right and so you agreed to limit your discovery to that period of time that's correct correct ok so when these motions were filed when the bank found its motion the supreme court had not yet decided inclusive communities that's correct ok so the district and the bank didn't have the advantage of that you didn't have the advantage of that neither did the district court is that right that is correct ok so what we do know that you did that under havens and morgan you could attempt to use the statue of limitations issue right that's correct ok so what in your view did you have to show to demonstrate the court to demonstrate to the court that the continuing violations doctrine applied in this context we had to show that the behavior of the bank offering an equal terms to minority borrowers continues and we could show that by demonstrating that loans of the kind that were could identify as being different from what would be offered to them on minorities so that's that's the discriminatory practice continuing in the motion you  an extended period of time what we were saying was that they were offering different terms to minorities than to someone who situated credit worthy known minorities over time and that the loan themselves don't matter it's discriminatory practice of the unequal terms so it's no it's a discriminatory difference in the terms of the laws which is that no one would get which is that the practice that you're trying to what we're is the adverse there in what we're saying is that the loans that go into a disparate impact analysis are those that have been offered to minorities that were more expensive or riskier than those that would be offered to none minorities and so the specifics of the loans matter less than the fact that these were unequal terms so what's the cause of this and the cause we say are the financial incentives that were given to l officers the marketing policies of the bank and that sort of thing that that created an incentive to give these higher cost loans when they could get away with it and of course as inclusive communities tells us unconscious prejudice  you know a stereotype being covert stereotyping is the term they use and that sort of thing is what goes into disparate impact analysis and that is the problem and of a disparate impact claim the practices you referenced is a failure to monitor yes how could that possibly be as well if the bank has notice that there is a disparate impact going on as they did because there were public studies that showed that that was the case then they had an obligation to do something about that that's the cause of the spirit we said that that was one of many we cited sixty different policies of the bank that we thought contributed to the disparate impact so again the focus really has to be on the whether the banks behavior centrally was continuous in fact in the city of miami case the eleventh circuit said it's not the loans themselves that matter the loans can cherish change over time it is the behavior of the banks in basically using these incentives to create more expensive loans and riskier loans for minority and in fact the district court in this case recognized that to be the case when it decided the motion to dismiss issue but it seemed to abandon that issue when it got to summary judgment well you changed your question were you able to show or did you show that the practices of the bank wire to the limitations period were the same as the practices in the limitation vary to take advantage of a continuing violation we did we did we used we used an expert evidence for that purpose even airs who was a law professor in business law a business professor at yale and also served as the expert for the department of justice in their action against the banks did they were gresham analysis to show that controlling for twenty different other characteristics to try to explain the differential treatment of of  borrowers and then minority bars and said that there was no other explanation other than race he found that in with respect to the high interest rate loans for instance there were  there were even just looking at the limitations period loans there was three times more likelihood that mexican american would receive one of those loans than a similarly credit worthy non minority that a hispanic would receive and two times more frequently with respect to you on the high interest loans they were eight times more likely i mean that that's that that's that's something that when you talk about f h a maybe i'm confusing this case with the wealth fargo case a little bit but when you when you looked at it you have a minority bar who goes in asking for a loan on a two hundred thousand dollar house they are steered to an f h a loan which has up front mortgage insurance premiums and other kinds charge you know it's just not my business because here's the reason if and no one minority borrower goes into the same bank with the same credit profile asks for the same kind of loan on a two hundred thousand dollar house in the same neighborhood and gets a conventional loan then their costs are going to be less and that is discrimination it doesn't matter whether it's a conventional loan both are offered conventional loans if one gets a higher wage or more onerous with yes or no we would say that it does not have a nice mission one policy but we had confidential witnesses in our complaint that said that they were pushed by branches to do this and that we what i'm saying is for disparate impact purposes the fact that there is a policy that's neutral on its face but that encourages this behavior is sufficient that's what inclusive communities held well talk about a robust cause can meet that but but even so let me say that the fact is that this is a nuff of a connection for purposes of saying that the behavior continued and at least for statute of limitations purpose morning may it please the court thomas heffron for the defendants the fundamental problem and we saw even just in mr peck's argument just now final problem that seattle city of los angeles had it to simply didn't offer evidence in connection with summary judgment motion which was sufficient to show that it had stated a claim and while their theories were basically the same and continued violation for example there was no evidence of what the conduct was prior to a time period take me back if you will to the structure the win which the parties agreed to move this case through the district court so in other words you nischelle you agreed at some point after you lost the motion after the district court ruled against you on the motion to dismiss you agreed to phase discovery in a phased approach basically is that correct yes although we we asked the district court to actually order that and stay all other discovery in the district court refused to do that so the parties informally prioritize we didn't have a formal stating so was was there an agreement that there would be a motion for summary judgment on the statue of limitations or was there going to be a motion for summary judgment on the entire claim in fact there was in not only agreement to file some rigid motion but actually judge anderson when he refused to put a stay pending summary judgment set a separate early deadline for that motion for which motion for a motion just focusing on statue limitations or focusing on  the merits of the claim just so sort of an out of order summary so no way to go during the during why did they have to prove during the limitations period at all they had to do was show a continuing violation was appropriate here why did they have to prove the merits of an adverse impact case within the statute limitations period in order to get the advantage of it they could do need dilation doctoring they have to show discriminatory housing practice which is a practice in violation of one of the substantive terms f  a which for us is the financing section thirty six zero five and in order to establish that they had to come forward with evidence showing that there was a violation what they did was they came up with professor ayres report which took on the burden of showing that in fact there was a disparate impact causal relation with the policy all within that to your period so they actually took on that burden and said we're going to provide that based upon those two years so i thought the and i'm just trying to understand how this case was structured i thought their task was to show that there's a genuine tribal issue of fact on whether or not they could invoke the continuing violations doctrine in order to get over the statute of limitations and to get that to move forward with the case in other words not that they had to prove the merits of their case but only that they had to show there was a factual dispute with regard to the continuing violet to utilizing the continuing violations doctrine they had that's correct and were fifty six they had to shows a travel issue show was that they were aggrieved you can bring a lawsuit unless you're aggrieved and the city which requires much sort of gets to the merits because the theory their case was an adverse impact case that's correct but it doesn't get hired for i mean you don't approve it's very difficult you know the title seven cases is extremely difficult to prove like a hostile work environment case with just one act of sexual harassment or something you need a pat you need so their theory of the case is adverse impact and they need to go back and up all this information or to prove an adverse impact why do they have to prove with one incident one loan that constitutes an adverse impact don't they just have to show that they were using the same policies and practices over a period of time there are several different ways they could have chosen to prove an adverse impact they chose to  restrict it to the loans and practices within the two year time frame they didn't show with respect to prior practices absolutely zero you're not just saying that it was insufficient you're saying they didn't prove anything at all nothing at all nothing at all they chose to argue that well mr pack indicated they chose to base upon the two year time period and there was no evidence about what happened prior to the two years and there was no evidence of an injury none at all and as a result they were not aggrieved and they didn't have article three standing to move forward with their case is that your position just hypothetically in general that if a lending institution in gauges in practices that create a high rate of foreclosure and a lot of houses become foreclosed and even abandoned but that doesn't produce damage or injury to the municipality which just to clean it up provide increased police protection etc the city to send the city has a proprietary interest for example and not spending money then they would be able to state a claim assuming they could prove it including the causal connection which would be difficult for your knowledge  that there could be damage that to the city from despair alone practices creating a high rate of foreclosure but that didn't happen here that's what you're saying it didn't happen here because it wasn't all there was no evidence offered and they didn't come up with a fifty sixty affidavit saying they needed time to develop that evidence and so instead they chose but there but that's a good bet and i guess i'm going around in circles and i'm sorry but it gets back to what the focus of the motion was about the way you're telling me it was focused was to be focused on whether or not they could invoke the continuing rely on the continued violations doctor and what you're saying is what you do in order to do that they had to prove with point to the practices or policies that overlap in what he did when he stood up there what he said was i asked him about failure to monitor well how could that how could that possibly be a causal connection and we and we agree with that that that that is not the robust causality that justice kennedy had in mind what instead has to happen is the plaintiffs in a situation i guess has to zero in on a policy which it can demonstrate a factual issue at summary judgment was limited to the it was limited simply to the issue of the ability of the point of to continuing you know nor did it go to the merits what the court found was that there was no timely claim because they had not come up with a timely injury which was necessary to support the claim so in that sense it's like garcia vs brockway where you have a violation but there was no timely aggrievement within the two years and the same was true here the plaintiff came up with the city came up with no evidence at all to show that they had a timely injury and therefore they could pursue a claim and that's and the court had warned in its motion dismiss opinion that when it came for summary judgment it was going to require specific facts and now we know from the comments the court made at the end of the opinion that the court was somewhat skeptical skeptical and was throwing out a marker in its summer in his dismissal opinion saying you're and we're going to have to come up with specific facts and the is that wasn't the approach the plaintiffs took the city took the approach that they were going to demonstrate disparate impact based upon only conduct within the two year time frame because it was about but the conduct what they're saying is the conduct relates back limitations and again i mean what what judge andersen had before him was an argument that there was not a timely claim which requires a discriminatory housing practice which was the evidence of this disparate impact and aggrievement because you can't bring a lawsuit if you not agree under the statute and the city did not come up with any evidence at all that it had suffered an injury  within the two year period or whatever they allege things but they didn't come up with any evidence they did not seek a fifty sixty affidavit saying they needed more time they did not say to the court on summary judgment when we argue the court indicated both as a matter of the statute in this matter of the article three that it can't go forward because there is not a time of calling and so that that was really the difficulty that the court had the court chose not to go on the issue of whether there was a discriminatory housing practice in other words it chose not to pursue that line judge right in the in the was photo case chose to do that so there are really two elements in judge wright decided on the issue of whether that an injury as me whether there was a violation and judge anderson in my case decided whether or not there was an injury so there was no there was there were no evidence of any injury and the only thing they came up with ultimately was they argue that the city has an interest in ensuring residents are free from housing discrimination well you see i mean i don't quite understand what judge andersen did by relying on injury because you know it's pretty clear that the city as a result of the of connection is just as kennedy says or briers because it was says is a whole nother question but this kid it seems to cook it's strictly what happened here there seems to be a collapse between limitations we argued both issues we argued there's no timely no timely claim and in order to have a timely claim you need to have a violation and you need to have a lawsuit by somebody who's agreed within two years as an allegation of  violation you have to have an alibi but then when it comes time for summary judgment you have to prove you have to show that there's a speed issue of travel issue a fact that there that there is a violation and travel issue a fact that there will be at least let me take you let me do this another way so to in order to get the benefit that in order to show a discriminatory housing practice ok they would have to show some conduct violation presumably would be a continuation of the prior conduct into the limitations period for at least a little bit that's what they would have to show to get the benefit of those principles you know and they didn't for several reasons first of all they again they offered no evidence at all of what happened prior to two thousand eleven secondly this is not a proper case for the continued violation doctrine in any event and you see that by looking at havens which is the case they rely on in haven's the court said we're going to recognize continue violation for what they refer to as the neighborhood claim people been injured by not living in an integrated neighborhood but then in the same paragraph they rejected the idea that individuals who had been discriminated against when they applied for an apartment could bring an untime lawsuit simply because there were further denials of other people's claims in the middle of the limitations period so the court recognized and morgan is another case where the court recognized it that continued violation doesn't apply wouldn't only applies in those circumstances like the neighborhood claim or like hostile work environment and it cannot be used to take a series of individual discriminatory activities and stitch them together and therefore you was asked to decide whether there was a timely claim and we argued there was not a timely claim because there was no discriminatory housing practice and there was no timely injury and the city did not complain that that was not something the court should decide in the court decided it and they actually don't even tell this court that that was ever for the court to decide that and in any event take a step back and i think what you have to ask yourself is why i the city being permitted to bring a lawsuit in federal court when at the time of summary judgment it can't show and one iota of evidence of harm no further questions from the panel appreciate time during no questions thank you the judge did not want to hear that and in the opinion below the court said that even if i were to consider that that does not make the current issues timely so he did not want to consider anything from prior he one of the entire case tried during for that true to your period and we think that that's wrong in havens for example we had five instances of a tester of testers going and asking for an apartment that was available i'm told that that wasn't available for those instances were by the same tester but all were outside the one hundred eighty day statue of limitations that existed at that time one tester was asked during the limitations  period and the court said that that constituted a continuing violation allowing the nonprofit organization homes which was a plaintiff in the case to bring the action so these were not discrete acts activities these this was a continuing violation of the same behavior that basically placed on minorities more expensive and risk your loans than they otherwise qualified for that is this stream of conduct that continued that's why they continue in violation  nicely presented arguments and the city of l a l a v s bank of america case shall be submitted