thank you on our may it please the court the question for the court to resolve today is relatively simply stated made a municipality that is the sole provider of utilities be held liable under thirty six zero four b of the fair housing act if that minister paudie provides those services of those utilities in a discriminatory manner we need not be detained long by the district court's opinion in this case the reason is the district corps operated under that incorrect standard the district court explicitly stated that it was given a narrow construction of the fair housing act the supreme court has stated repeatedly that the fair housing act requires a generous construction that is consistent with its broad and inclusive purpose under that narrow reading of the fair housing act the district court came to the conclusion that thirty six zero four b of the fair housing act only applies up to the time of acquisition of housing and does not apply after housing has been acquired that interpretation simply cannot be squared with a lot of things but most importantly can't be squared with the plain language of the statute and your honor i have a board here with the statutory direct the court's attention to a number of aspects of thirty six zero four b of the fair housing act that mandate the conclusion that applies to so called post acquisition conduct first the section applies to privileges of sale or rent as many courts have acknowledged the most fundamental privilege of a sale or rental is the right to occupy a home of course the right to occupy a home comes after housing has been a uired so congress in the use of the phrase privileges of sale or rental must have anticipated and clearly stated in the statute and to supported this action applying to post acquisition conduct circuit that has considered this question even those circuits that have taken the most narrow reading of the fair housing act have recognized that a privilege of sale or rental must include the privilege of occupying the housing sector the section refers to services and facilities again are included in the coverage of thirty six zero four b this is provision would make no sense if the protection of the act ended at the moment of acquisition perspective homeowner can have utilities hooked up in his or her name prior to acquiring the housing all of these services in the services and facilities are only relevant upon acquisition of the housing again a nother aspect of thirty six zero four b that clearly indicates that applies to coast acquisition housing the district court in this case interpreted the phrase sale or rental of a dwelling to mean just that moment of acquisition well rental certainly doesn't even suggest that it's just the moment of acquisition it's a rental housing when you sign the lease but it's also rental housing six months later five years later it rents all the connotation of the word is an ongoing relationship and it's an ongoing status if you're renting a dwelling you're renting it when you signed the lease but you're also a renter many years later isn't your best argument that the statute is ambiguous and therefore we should apply chevron deference to the interpretation of the statute by the department of justice and the department of housing and urban development but that's certainly a very strong  the arming of housing and urban development which the supreme court has stated on numerous occasions is intitled to great weight in its interpretation of the fair housing act and that  substantial deference should be given to it it has in three different sections interpreted thirty six zero four b to apply to both post acquisition conduct and perhaps more most importantly for this case to municipal services the very conduct that is being challenged in this case the discriminatory provision in this all services hud has stated that that thirty six zero four b applies to maintenance and modifies that welling or is it rental and social or privileges well your honor as you can see from the cases that have looked at that question that may very well be ambiguous however for the purposes of this case that does not matter does not matter whether they're with applies to a dwelling for sale or rent to a dwelling because when you look at the phrase sale or rental actually been the housing has actually been acquired otherwise you would have no meaning if there is no provision of services and facilities at the moment of the acquisition of the house back to judge wilson's question if we find the statute is unambiguous what deference to the department of justice and hud's regulatory scheme and interpretation well notably the supreme court when it has looked at the huds interpretation of the fair housing act it has not required a fine in of an ambiguity it has instead looked at hud's interpretation of the fair housing act as further support for its own conclusion and that's come up in the context of standing and how the supreme court has addressed the this the standing question under the fair housing act so either  the language is clear as i assert it is when you look at privileges of sale you look at services and facilities you look at the term rental that it applies to post acquisition conduct or if there are aspects of the language there ambiguous certainly resorting to the interpretation that it does apply to post acquisition conduct and specifically to municipal services is appropriate in this court may do it let me ask you about your reliance on the inclusive communities project case which interpreted different so paragraph thirty six zero four eighty which did not include  in subsection b the phrase otherwise make unavailable what it would it is what is the difference here well let me say two things about the i c p case one p case is very instructive for interpret in thirty six zero four b because one of the things that the i c p case relied on to determine yes there is disparate impact is provided congress meant to provide for disparate impact claim under the fair housing impact available under the fair housing act in that twenty year time period congress we must presume was aware of that and they concluded not to amend the fair housing act to remove disparate impact same goes for  former hud officials we have to presume that congress was aware of those cases applying the fair housing act in thirty six zero four be specifically to current occupants yet congress did not amend the statute to correct those court decisions to say no we meant to limit the application of thirty six zero four be exactly the same analysis the supreme court went through in the i c p decision claim first the court need not reach that question because it was not ruled on by the district court however thirty six zero four b has nothing about its language that would suggest it's not covered by the p's decision which was the fair housing act allows for disparate impact claims did not limit it to thirty six zero four a or thirty six zero five the statute or the provisions of the also concluded at the end there are four reasons why we're finding disparate impact is available under the fair housing act one was that make otherwise unavailable language another was the parallel construction interpretation of title seven in the eighty eight and the other one was the purpose of the fair housing act which of course thirty six zero four b as part of the fair housing act and shares the same purpose and  the fourth was what i just discussed the fact that congress did not amend the fair housing act in any way between sixty eight and eighty eight to eliminate disparate impact even though courts or applying it so the make housing or otherwise unavailable language was only a small part of the i c piece of reasoning to apply disparate impact and let me finally note that it also applied disparate impact to thirty six zero five thirty six zero five does not have the making housing unavailable language and as you'll note in our great brief that thirty six zero five and thirty six zero four b share virtually identical language the only difference thirty six zero four b applies the terms and conditions housing thirty six zero five applies the lending transactions so that the i c p decision apply disparate impact to a section that is identical to thirty six zero four b and doesn't have the making housing otherwise unavailable you good morning in may please the court or name is jeff taught in the city attorney only brains represent the city in that capacity in this appeal i'm happy for the board to be up because both sides of this case are arguing strenuously plain rating here this morning to the panel the plain language of thirty six zero four b of the act before we get to the plain language of the statute would you agree that if the statute  ambiguous we're plash everonn deference to the department of justice and the department of housing and urban development interpretation of the statute i would agree that if as has been cited today the chevron cry in that case the question is whether congress has directly spoken on the issue that's the that's the question that we start with of congress has spoken and we think this is unambiguous then there's no need to look the beginning the sailor or the runner they would not of include language is language like the privileges of seo around going were you more important or in the provision of services or facilities what do you think cases look toward and consistently say is that you have to continue to read that phrase the provision of services or facilities in connection there with it's in connection there with that the courts have repeatedly look particularly as you know district court cases within the eleventh circuit that state precisely that subsection b is not written to capture the actions of third party service providers which are unrelated to that acquisition transaction and also as in our case occur after the acquisition transaction plaintiffs hope to use the courts to strike down to long term policies of the city and you're familiar with those policies one collateral debt policy requires anyone with a lawful debt to the city to pay that debt in conjunction with its utility bill and then the identity fraud policy requires a federally or state issued photo identification order to open a utility cow we formally required social security number in the beginning of the account process we don't anymore but that's still technically a part of the case it's important the plaintiff only seeks relief under what do you not require own social security numbers now sir you said you don't require social security no security number which is part of this case is no longer required by the city that policy has been rescinded so so security number is not required at the beginning of the account opening process if you substitute something else for it it just delete that you could use the individual tax invocation number and the more expansive well we could my folks the the people that do this day in and day out with the city of le grange do not have nearly the confidence in their ability to lessen identity fraud with that tool than the tools that they're currently using and in just the question really from our perspective is not whether this is the best policy the question is whether this policy lights the federal housing fair housing act you still have to have the immigrant still has to have a government issued id the right in any everyone has to have a government issued id or car is housing unavailable if there's no utility service that's not played in the complaint and there are a number of cases and we'll talk about them if i have time where this precise issue has come out a couple o three district court cases in this circuit and there is a timeline and if if in our case the delivery of these services are not in a roll and happening at the closing table then that's right that x simply doesn't include them in in its probation so if so if there was an apartment complex like it would it was you or the city is not involved in this  rental property but if an apartment complex was requiring that that utilities be turned on in connection with the rental of an apartment would that be a different situation i don't know frankly how that works i know in a number of not city wide and of course this is outside of the record we don't provide all utilities in all sections of the city but for the purposes of this appeal we are pled to be the sole utility provider throughout the city me pose a hypothetical and this is just a hypothetical now let's say the mayor of the city in the grange instructs that you director of the military department to cut off water and sewer and utility services to certain neighborhoods that are majority minority neighborhoods for whatever reason that wouldn't fall within the ambit of the fair housing act well first of  violate this subsection baby i don't think it would i don't think it would and let's remember the fair housing act is not just thirty six so for big there are a number of provisions which are aimed at different at different evils that the act was trying to remedy and one of them is one of them is thirty six zero four f two and the language is almost identical the language in section thirty six zero four b well then applies to post acquisition discriminatory conduct and well it does and it expressively does and as pointed out in in the acquiring housing but quote intending or residing in the toilet after it is so rented or mail are made available we actually think thirty six zero four f t a great argument for us because thirty six zero four f two shows that congress knows when they want to reach post acquisition behavior congress knows how to do it they went back and modified it to express liad applied to after housing acquisition behavior so we don't think that the six zero four f two is at all parallel in all of the cases cited by the plaintiffs that referred to that code section we think are irrelevant to this appeal i have i have some questions on your additional arguments that were not mentioned by the trial judge and his opinion yes or no but which i presume were presented to the trial judge in the lower court right they were yes sir and specifically about the failure to meet the pleading requirements of the inclusive community projects case which seems to bring the disparate impact into this if you want to speak to that yes or i'll be glad to see it was that was really our third argument because that argument as you know were choir to were required to assume that inclusive communities somehow deemed that disparate impact analysis was going to be available for every aspect of the fair housing act which when you look at the individual sections of the act it is is not at all logical worried the court was concerned about what would happen if particularly government policies if the government were hell level for  e statistical disparity so inclusive communities inserted to barriers pleadings barriers promise facia barriers before you could even plead disparate impact under thirty six zero four eight one of those was that the policy issue is required to be artificial arbitrary and unnecessary artificial arbitrary and unnecessary what well i've looked at i've looked at the complaint and it doesn't use those words but it does use unjustified we would submit that there is a has an in between unjustified that's what the plaintiffs are come the plaintiffs are saying other people have many better policies that work better for our constituencies and for the and for the plaintiffs and that and that may well be true but that's more in the land of an unjustified argument what what the plaintiff has to have played here which they did not is artificial arbitrary and unnecessary i'm not even sure i saw the word on just about it says not necessary in paragraph seventy three of the complaint  see that and that is a long way from artificial arbitrary and unnecessary the court also as a second prong from inclusive communities at the pleading requirement that you're familiar with it was called robust causality now frankly i don't know and maybe we won't know for the next several years exactly what robust causality looks like but the  consulate what they have presented in pleading stage which of course we're not be admitting is that particularly the court dept policy as they call it has affected african americans at a higher rate than african americans in the city but the cause and effect here is did our policy prevent the plaintiffs and those people that the plaintiffs are stating have been harmed by the policy were they prevented from acquiring housing and the answer to that is no so there's not that there's not only not robust cause ality there is the plaintiffs have made no pleading of causality at all and even if you assume disparate impact analysis applies under inclusive communities which we obviously do not concede then the plaintiff cannot meet those two various we've noted in our  brief plaintiff has cited as many as eleven the eleventh circuit court as many as nine eleventh circuit court cases but as we discussed earlier thirty six zero four f cases shouldn't count really six of the nine cases cited as being in support of plain his position are not thirty six zero four be cases the three remaining cases i think one the court to take note of so that there is no doubt that the plaintiffs position has not been endorsed by this court woodward versus fanboy from two thousand and two first of all like almost all of these cases the case involved allegations of egre intentional misconduct in this case it was sex in exchange for rants which of course distinguishable from the allegations of the plaintiffs complaint but more importantly this court in the  wrote a footnote that specifically said we are not making a decision with regard to plaintiff's argument regarding in the provision of services or facilities this court has never found as plaintiff is requested many district court as you're aware have found similarly to judge that in our lower court and the other circuits you'll note in our brief there's only one circuit and that's the ninth circuit that has found if you have you run across that i don't think so you're on the right well let me also ask you about the difference between thirty six zero for the thirty six zero for a because you did raise that in your brief course you cannot read inclusive communities without coming away with it because it's quoted by justice kennedy or otherwise make available was of central importance to the determination that subsection disparate impact analysis that you're exactly right for those reasons and those outlined in our brief we think that it would ask for the court to affirm the decision of the lower court in this matter thank you mister girlfight have some time remaining think your honor let me address a few of the questions that judgments and you raise related to disparate impact first of all of the arguments about the inclusion of the phrase making housing unavailable are inconsistent with the fact that i c p also applied disparate impact to section thirty six zero five which does not include that well they mentioned the school board of new york versus errors but just in passing that that would say that was what they had done in the past but i don't think they adopted so would anything really incorporating it where there were two provisions at issue and i see peace or six zero for a thirty six zero five and its conclusion  disparate impact is available under the fair housing act in that general statement this supreme court then articulated four reasons one of them was the forward looking language like making housing unavailable but then there were three other reasons that  apply just as much to thirty six zero four b as they do the thirty six zero four a and of course the comparison of the language at thirty six o five and thirty six zero four b really answers that question what is the policy challenge and does the harm alleged at that policy challenge does that fall disproportionately on a protected class the supreme court was worried about when you have third party actors that may be affecting it or in the case that it was before the court if there actually federal regulations that were acquiring texas to take certain actions so it wasn't texas policy right the federal government was affected and so that caused the connection is between the policy and the impact observed it's not whether or not the underlying difference in the population impact claims and put together a standard for determining is there a disparate impact claim that can be proven here i go there to counsel about the ellis case from the eighth circuit which says this is a pleading requirement if you if you've seen that