good afternoon ladies and gentlemen welcome to the th circuit court of appeals we have one case to be submitted today and we want both attorneys to know how much we appreciate your willingness to to be here we're working on finding ways for the court to be reopened under normal procedures and this is a big help to us for you to be here so we can work on social distancing and in other things we had successful arguments with another panel i covers and you can remove your mask while you're making your arguments and the judges will remain masked and unless we're asking questions or other other announcements  you're your reward for being here if there if there is one is not only to be able to make a face to face presentation on behalf of your clients but also instead of the normal twenty minutes we wanted to give you thirty she had plenty of the district court in this case you're on there's apply the incorrect legal standard for standing under the fair housing that the district court disposed of this case on summary judgment based on the holding that the housing authority is required to establish official action by the city commission in order to proceed with its claims on the fair housing act however that is not the law as never been law have not uncovered any legal precedent setting for that that would be the appropriate legal standard and perhaps more importantly your honour's logic dictates that this cannot be the standard because if this is the standard the way that this standard was applied in this case it would completely eviscerate any claims under the fair housing act because municipalities in situations like this would simply sit back and do nothing but accomplish exactly the harm that the fair housing act were hi multiple reasons adopting the standard would be a severe diversion a significant change in the law so for two reasons both when we think about this in terms of spending generally and when we look at  cases under the fair housing act is well settled that in actions omissions and this is specifically set forth in the both the court's order and an applebee's briefing in terms of the that the standard for standing general john standard  standard is what we were dismissed on that is the that is this the the tall of the standing standards that requires injury in fact which is fairly traceable to for isabelle's acts or omissions and similarly and more right along the lines of what happened in this case courts including the united states supreme court in the huntington case as recognized that the failure to resolve may constitute a fair housing act i'm going to interrupt you for just one procedural thing i just want to be sure that a judge judge poe is with us by my telephone and i just want to be sure that judge who was able to hear everything ok i am thank you can i make the yes you're fine thank you  excused the interactive one go ahead so the court focuses on this what would be a new and very stringent standard of official action by the city commission but at the same time acknowledges that in the in the in the standard part and in the earlier in the opinion just setting forth the demijohn standard that omissions can give rise to legal claims but ignores that when it actually gets to the standard that is applied in this case now even if  official action or the standard your honour's there is extensive evidence of official action in this case that were that were taken to prevent this housing project from moving forward before we get into it can i i want to ask a question about your legal theory suppose that on november th when at this sort of the end of the negotiations were approaching the december one deadline supposed that this mayor and the city manager had come to you and said you know what we're proofer four houses and the rd party financier said four houses is going to be good with us two and so on december whatever november th the day before december one you close on the four houses right and the whole thing goes through everyone's agreed would you have a claim under the for housing act eventually when what would be the claim the the damages that were caused if the if the prior iterations of the plans because in that instance your honor on still would have been lost a significant amount of those federal at the end of the day are already damages our damage model in this case which is a nice change is it the damage model is pretty straightforward we were awarded one million seven hundred thousand dollars by the federal government and under that hypothetical your do want to i do want to mention one thing your honor that would not have been possible before would not have been possible because we're out we're under a this this property is designated as formal housing multifamily when it when that when the property was have claimed then i think that's possible and what would be the case that would support that theory of recovery under the fair housing act because the thing i'm struggling with this suppose that the federal government gives you an affordable housing grant for a trillion dollars contingent on city approval right but huge but you've got to have one hundred million dollars units that mean that your damages model would entitle you to you know whatever the trillions of dollars on some wildly speculative thing because all of the grants are conditioned on the city approval would we have a claim i don't know i can tell you i doubt we would be there right now if that happened but when the when the when the all the money was was there clearly well here's the other thing and i understand if if you're telling me that there were some independent legal prohibition six days before the deadline or five days before the deadline and we're still trying to get the deal done i on the on the knowledge that the city will approve the four i think it was it was desperation there were there were federal funds that had been granted  reading and keep in mind that it's a something that i think it's overlooked a lot in this case is that this had been a multifamily housing project before it was destroyed by earth and if it was there is at least i  ok so back to back to the standard that that was applied in this in this case the that the city commission did not take official action when you look at the at the the early long project and the city did so but what's critically important to keep in mind for purposes of this appeal is that at every step of the way in the city block this project they didn't have to do to do so through any proactive measure could do so through inaction the city didn't have to do a single thing to accomplish the goal of blocking this project where you made the statement that it was it was clear that if the city was going to block it to tell us tell us what we think you are about to do some of this mattel us what's in the record step by step that we should reasonably read is an indication that the city was just never going to do it so it when the funds were st granted actually there was a prior mayor that said that high that he did support and so then the and so then that the administration changes but that the real the critical starting point of this whole of this whole case is the market planning zoning  time there was vehement community opposition in the neighbors and then in the planning and zoning commission unanimously rejected the the request and this is all in the record this is all go plenty of time and if you need more time what were given to you say that your i did i just want to make sure that i'm that i'm entering your question is as directly as possible in the end there are so there is vehement community opposition not only were there in this neighborhood as a family there were good things to that extent and i thought and i believe more directly to your question your honor there's evidence in the record of the folks from the planning and zoning commission saying we're going to be what the what the public what the public said we're we're going we're going going to go the way that the public is honest and clearly that the neighborhood was against this that but when you look throughout the whole throughout the whole history it's clear that that i don't know i think there's an argument that what would be the argument i mean if you if you had been at their offer you sixteen you know you have to negotiate with them because your funding is conditional on getting a permit so you go from twenty four to sixteen and they say great we're going to do a deal at sixteen and it closes and everything's fine you think you'd have a you could come to federal court and complain that i went from twenty six to sixteen and i'm not i'm not i'm not saying that because i disbelieve you on this one and i don't understand the as to whether you're injured it strikes me that if you oppose sixteen you go to your rd party lender and say can i get funding for sixteen the rd party lender says here's your funding for sixteen and then you close the deal at sixteen you have absolutely agreed to sixteen and so regardless of whatever happened to get you to sixteen you can't possibly be injured because you asked for it but you you absolutely went into that deal all you know eyes open asking for sixteen the same would be cheap true of ten diligence to to discover whatever legal restrictions there were that that it that's not sure of that the the so legal restrictions in terms of the  judge there i guess that they're that the project had been grandfathered in prior to the time that it was destroyed if anything going to the planning and zoning commission and then and seeking that the variance under the then the applicable ordinances i would say was belt and suspenders and that at that point it had been vacant for a couple of years and i think they wanted to go in and clarify i think it is clear from the record that they were taken by surprise by the the opposition there and there had been a housing project there before there they now had one million seven hundred thousand dollars to buy to redevelop it  the vehement opposition from the community i think was i think was unexpected but after it was rejected that time then the the process and then there was a there was a nine month period after that initial rejection where the diligence was intense and it wasn't just my client they they partner with the community development corporation of brownsville which is a nonprofit that has a very sterling reputation and these types of projects also the better block which is a lot of those on architecture farm in dallas that apartment with these folks those folks started expanding resources in gauging the community i think it i think they knew that if they if they couldn't convince the neighborhood to allow this that it wasn't that it was the city that the folks on the on the city commission in the planning and zoning commission that made it clear this neighborhood opposition continues we're not going to let it happen and so that but the diligence over and over those nine months i don't believe that there was a lack of  regard i would be guided by the supreme court's decision in the huntington case which is which is directly on point with this case where you had the failure to rezone gave rise to injures you we all understand that we see that every day when we don't is not acting somehow injuring you you would need some sort of can common it legal duty to do the thing you admitted to do and i'm not sure i understand where that is in this case either well that in huntington they want to address saying they did not address standing they did address exhaustion of a similar issue came up in that line of cases involving lives of of remedies and if that could be that's another area where the honey case is so critical because that in that case there was an issue made of the fact that there had not been a final determination by the town board it was a it was a never going to let you move forward is that correct well i think that the deadline is very important because they knew everyone knew that that this that these funds were going to expire so they can sit back  to retract that statement that's probably too broad of a statement i think that what was clear was that as long as there was community opposition the city was not going to allow this to happen and during the time that that that we would have been able to utilize these federal funds that the community maintained its opposition and the city did as well from the federal government the housing authority initiated the request with the planning and zoning commission to change the zoning and we developed the site and as we sit here today the site remains dilapidated  thank you very much our judicial system sure doing a terrific job of helping us this week the struggle are let me tell you again how much we were very much appreciate your efforts  here in person and it really does assist the court from both from both of you have already said that but i want to say it again to emphasize that that the court really is is indebted to both of you for your for your help on this case and also for your patience and waiting since march or april to have controversy there's no evidence that there was a final action by the city there's no evidence that there was discrimination by the city to do any final action and rd that statue limitations had in fact expired before getting into that  would lead to the court just a very short background of what actually happened it happened was going way back to the st century this particular building which was owned by the  that in the event that the non conforming use of any building or premises is discontinued or its normal operations stopped for a period of six months the use of the same shall thereafter conform to the regulations for the distributor it is located it had been grandfathered in one point but one so they've written that one resident moved out and there was nobody living there that grandfathering clause expired and now he had to comply with all the codes so then they got there they got the thirty six from servers and twenty six different apartments have you considered what we're going to do this is a narrow street where are they going to park how big is this building going to be what are they going to do to get to justify this modification to the city's building code and basically they provided nothing they started meeting with different members of the i'm sorry the city staff and the city snap i think their role is trying to help them get to where they want to be and  how they're going to comedy all these people in this small area when that one didn't work out the d n c board told them we haven't showed us how or why we should recommend this so we're going to recommend now building that will fit problem with that would be also then you've got certain height requirements of this one probably wouldn't fit in this area but regardless of that i'm just giving you the background as to how this played out the standing issue has more to do with the fact that they have not identified an injury in fact by describing have more to do with what actually happened if you want to give the court some background if i could get into those other issues that when they showed up they had no development plans they only had an idea for a project and i told you about the code requirements that provide certain they're entitled to like certain restrictions on height size it back and those sorts of things but the most important part is that the plaintiffs never got to the point where they made a presentation or request somehow presented or requested that the city commission consider it now one of the things that plagued us want to argue is that the normal process would have been chair and she asked or they asked her what is it that happens she said well my understanding is that you know it goes on from there she didn't really say this is the process and for comparison what i would what i would ask the court to consider for example let's say a different type of situation instead of having this presentation to the p and z board instead of that you have a guy walks in hispanic guy walks into this to the city hall talks to the  i'd like to make a twenty six unit subdivision here's my form here you go and in my form i'm saying this is what i want clerk looked at him says we don't want that mexicans around here and she stick at that point have they identify any discriminatory action by the city the city is not responsible for every action of every clerk of every employee within the city somehow you have to present it to the appropriate decision makers i think the buck sternburg case that's one that apply to a village ordinance that's one where they said you have to have a decision by the appropriate decision makers not simply by somebody within the city i don't have homes that want to talk about having a need to establish cities discriminatory intent huntington branch which is the one they want to rely on primarily is involved a mix of discriminatory treatment and disparate impact that was in one thousand nine hundred and eight case that talked about the town's refusal to plate opposing counsel is correct in saying that they haven't specifically said that but if you look at every case that discussed the f h a and how it applied in those circumstances every one of those cases were presented to the town council the town board the city commission which whatever it might have been as i was talking about the i'm sorry of the l n f home to talk about requiring a citizens criminal jury in ten huntington beach was a mixed case but in huntington beach that was their refusal the town councils refusal to rezone now what happened was they presented it to the town council and the town council said no action taken  as he cited in huntington branch that was a case where they presented it to the town council and the town council took no action which was and the basis to follow up on what he was saying the basis for the town council action was there were a lot of complaints about or capacity it's official capacity for example to get an injunction heard the clerk to worry instruction to make him go do what he's supposed to do whatever that might be because they didn't file that claim against individuals had they done that might have been a different case but we have a case against the city and the claims against a city in order to pursue a claim against a city you've got to have the city responsible which only acts for city commission now moving on to the  commission if i may continue on the race issue i'd compare the court to refer the court to an f holmes that was one where here is a standing question where at city hearing there were comments regarding drugs parking and safety but like the current case they made no reference to race and the court came back and said look your complaint they're complaining about this then there's no indication that just because you want to know it's all  now the words whenever people say well there is drugs that does not mean it's race i'm hispanic you get offended by that just because you say there's a bunch of mexicans live in there doesn't mean we're drug dealers just because there might be drug dealers doesn't mean they're hispanic or any other race there's no connection there and i haven't seen any basis for a connection there now the inclusion communities project of also the one that said that you need to have some form of intentional discrimination not simply i can interpret really what they meant was discrimination you have to have some kind of intentional discrimination the  what it appears they're trying to do the place trying to do is follow the post hoc ergo propter hoc analysis because of wind followed x therefore x caused y another words the fact that they were not able to get their permit obviously had to be because of race look they didn't get their permit and there's a bunch of this and it's a little there that logic doesn't really follow it's an extension of the can i clarified  you brought the inclusive counties project case we've talked this morning about huntington it's clear that the appellant's think that huntington is their best case it's not obvious to me how this interacts with the standing question right because inclusive queens project obviously is not a standing the housing authority was injured in fact in an article three sense and my missing some piece of the argument here you know i've had trouble understanding that myself the standing issue but the way the courts have analyzed it is when you have not established a basis for action by the city and damages related directly attached to that action you have not identified a case or controversy and without a case or controversy you have no standing to appear before the court and that understand other words what i would normally file a motion to circumstance there would be an article three injury in fact purely based on the omission regardless of what caused it because the a mission is the thing that's actually injuring the housing authority the mission here being that i think you still need to have what but that wouldn't be a question that would be o again that's where i get confused myself in terms of i went round and round on this because i've never argued one case were in along this vein where i'm trying to  say you know they did they have no basis in fact or that cause of action they have no damages so i've never argued and therefore they have no standing usually i argued they have no standing because this particular person or this particular claimant didn't identify why they were the ones who were injured and that's it but again i'm not i don't have a good answer for you i'm just saying this is the way i mean by science the best i can interpret but maybe i can get at it this way do you think that our court without a cross appeal from the city could affirm summary judgment in this case on the basis on the merits that is that there's no evidence of racial animus do you think we could do that then and would that not be a different form of a judgment than a dismissal for lack of trying i don't disagree that it would never work you can say i know what you consider but really the way we're looking at it is really they just i think they wanted to argue in terms of what did they want to argue discrimination on the basis of constructive or implied discrimination rather than actual discrimination and i think the courts clearly have all provided that that final decision by the city commission has to be based on some sort of some form of actual discrimination whether it's because i know we're not going to do it because it would want more of your race and here or i heard what you're saying but no they have to consider if you give them the opportunity to consider i prefer the court also to prop me which was the case it said you can't sworn its decisions do not establish policy by default  now the only other thing i'd like to bring in the st of a few minutes is the statue of limitations and i think just all that was talking about this will that are really you had the p m c board meeting in march you had a june issue where they wanted to talk to some city officials about how to make it work they played of say that what the city manager said was you're going to parish yourself or something like that what he was trying to tell her was she was not really if you want to get what the city wanted to do and you if you could listen to every one of the comments references to the city officials they all wanted this project to w they wanted to bring people in there but they had to be within the rules that the designing rules that were already set by the city so they met with her to try to figure out ok how are you going to get this and she couldn't get anything he said she said that he said i don't want you to go to see the commission because it'll be explosive what he meant by that was you don't have answers yet and if you don't have answers they're going to run you out so why do you want to go without answers she could have said i want to go away and he was she could have at any time there's a days if what is executive director she could have made it any time to do that time later on in august or september when they were talking again about the sixteen units we've been in november when she said they were talking about the four cottage units she could have said i need you to go i need you to get approval or not because i'm my findings going to run out in a week or two she could have taken that action but she didn't she never gave the city the opportunity to make a final decision the last action that she  june that the city trip was in june when we at her bit in her listening using her argument the last communications you really have in the city where the city said yes or no the city manager at that point didn't recommend she do two thousand and seventeen and nothing else at the city did prior to that time as a basis for claims at that point or section limitations had already they did not file suit time are highly analogous to this case particularly the auntie case i would say that the while that the standing issue wasn't the dressed the planet had standing in most cases to proceed with those planes   there's no support for that can so on that point can i ask i'm looking at the days before his declaration and the most of the stuff that you talk about that the city has done wrong agreeing with the residents and cetera is from this march meeting where the comments were made and then paragraph ten says after hearing these comments from the public the p and c commission agreed that the apartment complex was not right for this neighborhood in need of a sleep rejected the resounding replanting could your client have sued then most of what opposing counsel was discussing as far as whether they had shown that they had their ducks in a row or whether there's going to be working requirements and so forth those are all intensely factual questions for trial  get later on into the summer and we don't even need the the proposals that were presented at that time don't require rezoning and we're having meetings with the city manager in the marrow of the building inspector who are saying we're not going to we're not going to grant the much about the merits of the case and whether or not there is discrimination whether or not there is discriminatory intent whether or not they're there what we believe are pretextual reasons for not doing this project the parking and all those issues but if there is it to the question of whether or not there was discrimination i do want to leave with one thing and that is the minutes from the planning and zoning from from that st critical planning and zoning commission meeting statistical disproportionate impact on the details you believe that all of that is there of course we believe that that that should be that those are issues that should be decided by the fact by our thank you mr rimmer your case is under  submission very interesting legal issues and you've both done a fine job of presenting it on a on a personal note i just wanted to say i've been in both of your shoes because i was on the board of the harris county having  authority for a couple years many many years ago and then three plus years as city attorney of houston so i i can i can i can sympathize with with what both of you are entrusted with to represent your respective clients now five cases that have been submitted on argument this week as far as we know this is the st federal court of appeals to ever have had face to face live on merits arguments