PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-1738

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CAROL VORCHHEIMER,

Appellant

v.

THE PHILADELPHIAN OWNERS ASSOCIATION;

JUNE IDZAL; FRANK J. BONOM

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:16-cv-05145)

District Judge: Honorable Juan R. Sánchez

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Argued March 23, 2018

Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges

(Filed: September 5, 2018)

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2

Stuart D. Lurie [ARGUED]

Rosenthal Lurie & Broudy

102 Pickering Way

Suite 310

Exton, PA 19341

Counsel for Appellant

Christopher M. Curci [ARGUED]

Freeman Mathis & Gary

1800 John F. Kennedy Boulevard

Suite 1500

Philadelphia, PA 19103

Counsel for Appellees

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OPINION OF THE COURT

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BIBAS, Circuit Judge.

A disabled tenant has a right to a reasonable housing accommodation that she needs to use and enjoy her home. But if 

her landlord offers her an alternative that likewise satisfies that 

need, she has no right to demand the particular accommodation 

that she wants.

Carol Vorchheimer needs ready access to her rolling walker 

and wanted to leave it in her building’s lobby. The building 

managers refused, but offered her four other ways to store and 

access her walker. She sued under the Fair Housing Amendments Act, claiming that her preferred accommodation was 
3

necessary to equally enjoy her home. The District Court dismissed her complaint, holding that she had not plausibly 

pleaded necessity.

We will affirm. Necessity is a demanding legal standard. 

For a housing accommodation to be “necessary” under the Act, 

it must be required for that person to achieve equal housing 

opportunity, taking into account the alternatives on offer.

Here, Vorchheimer’s own complaint, including the exhibits

attached to it, forecloses her claim. Leaving the walker in the 

lobby was her preference. But given the four alternatives offered—which she herself pleaded—she did not plausibly plead

that it was necessary.

I. BACKGROUND

We accept as true the well-pleaded allegations in the 

amended complaint, including those in the exhibits attached to 

it: Vorchheimer suffers from pulmonary hypertension (high 

blood pressure) and other disabilities. As a result, she must use 

a rolling walker to get around. She owned a condominium in 

The Philadelphian and had a reserved parking space in front of 

the building. Vorchheimer would use her walker to get from 

her condo to the lobby and then use her cane from the lobby to 

her car. She could neither lift her walker, nor fold it, nor put it 

into her car. Instead, she began leaving her walker in The Philadelphian’s lobby when she left. 

One day, Vorchheimer left her walker in a corner of the 

lobby. A building staffer took the walker and stored it in a room 

behind the concierge desk. The next day, The Philadelphian’s 

general manager, Frank Bonom, emailed Vorchheimer and 
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asked her to give her walker to the front-desk staffer whenever 

she left. She refused. 

A year-long quarrel ensued, culminating in this case. 

Vorchheimer kept leaving her walker in the lobby. The Philadelphian’s staff kept putting it into storage until she returned 

and asked for it. And Vorchheimer kept insisting that putting it 

away was unacceptable. Because of her disabilities, she asserted, she needed her walker to be available in the lobby upon 

her return so that she could independently retrieve it. 

Although The Philadelphian refused to let Vorchheimer 

leave her walker in the lobby, it offered her four alternative 

accommodations. Am. Compl. ¶33 & Ex. 8. First, she could 

have staff store the walker and then return it to her in the 

lobby—she could either phone ahead to have it ready for her, 

or sit on a bench to await its retrieval. Second, she could have

a staffer deliver the walker to her car before she got out of it. 

Third, she could have the doorman load the walker into and 

take it out of her car’s trunk. Or finally, she could start parking 

in the building’s indoor valet-parking garage, where she could 

leave her walker near the valet station. But Vorchheimer rejected all these alternatives and insisted that she needed to 

leave her walker in the lobby.

To support her demand, Vorchheimer gave the building’s 

managers several letters from her doctors. In the first two, her 

doctors detailed her medical issues and wrote that “[h]er use of 

a rolling walker is a medical necessity.” Id. Exs. 4 & 7. In the 

third, her doctor reiterated that she needs to “have ready access 

to her walker or scooter” and that she should “not [be] required 

to stand [a]waiting assistance for any period of time.” Id. Ex. 9. 
5

The doctor noted management’s offer to bring the walker to 

Vorchheimer’s car. But he considered it “preferable to simply 

have her walker readily available to her in the building lobby.” 

Id. This way, she could “maintain[ ] her independence” and not 

risk having to stand and wait for someone else to get the 

walker. Id.

Neither side would budge. So Vorchheimer sued Bonom, 

The Philadelphian Owners’ Association, and the Association’s 

then-president, June Idzal. She alleged that the defendants 

were violating 42 U.S.C. §3604(f) by refusing to let her leave 

her walker in The Philadelphian’s lobby so she could retrieve 

it by herself. And she attached to her complaint her doctors’ 

letters and her correspondence with the building’s managers.

The District Court dismissed Vorchheimer’s complaint. It 

acknowledged that “keeping her equipment in the lobby may 

be Plaintiff[’s] preferred accommodation.” App. 2 n.1. But she 

had not plausibly alleged that it was necessary. App. 3 n.2. So, 

the Court held, “Defendants’ storage ... and prompt retrieval 

of [her walker] when she returns does not deny Plaintiff a full 

and equal opportunity to enjoy her housing.” Id. Vorchheimer’s amended complaint added nothing material, so the District Court dismissed again based on lack of necessity. App. 5

n.1. Vorchheimer then filed this appeal and later moved out of 

The Philadelphian.

II. STANDARD OF REVIEW

We review de novo the dismissal of a complaint for failure 

to state a claim. Foglia v. Renal Ventures Mgmt., LLC, 754 

F.3d 153, 154 n.1 (3d Cir. 2014). In doing so, we construe the 
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complaint in the light most favorable to the plaintiff. We accept 

all factual allegations as true and draw all reasonable inferences in her favor. Id. To survive a motion to dismiss, a complaint must contain enough facts to “state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). In determining whether Vorchheimer’s claim is plausible, we consider not only her complaint, but also the exhibits 

she attached to it, including her doctors’ letters and The Philadelphian’s correspondence proposing alternative accommodations. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

III. TO BE “NECESSARY,” A HOUSING ACCOMMODATION 

MUST BE REQUIRED TO ACHIEVE EQUAL HOUSING 

OPPORTUNITY IN LIGHT OF THE ALTERNATIVES OFFERED

The Fair Housing Amendments Act forbids housing discrimination against the disabled. One of its key provisions bans

“discriminat[ing] against any person in the terms, conditions, 

or privileges of sale or rental of a dwelling, or in the provision 

of services or facilities in connection with such dwelling, because of [that person’s] handicap.” 42 U.S.C. §3604(f)(2), 

(f)(2)(A). “[D]iscrimination includes”:

[1] a refusal to make

[2] reasonable accommodations in rules, policies, 

practices, or services,

[3] when such accommodations may be

[a] necessary to afford such person

[b] equal opportunity to use and enjoy a 

dwelling[.]
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42 U.S.C. §3604(f)(3), (f)(3)(B) (line breaks, numbers, and

emphases added). 

Under this subparagraph, a plaintiff can state a claim by 

pleading all three elements. This case turns on the first half of 

the third element: whether a requested accommodation is necessary. That is an independent requirement, one we must now 

define.

A. The statutory text requires an accommodation be essential to achieve equal housing opportunity, measured 

against any alternatives that were offered.

We begin with the text. We look to the statutory provision’s 

language and to the ordinary meaning of the words it uses. Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018). Dictionaries, statutes, case law, treatises, literature, and even songs 

cast light on the ordinary meaning of “necessary.” These 

sources tell us at least three things: First, “necessary” means 

“required.” It is a high standard. Second, we must consider 

what is necessary to satisfy the particular disabled person’s

need. This statute pegs necessity to affording this disabled person equal opportunity to use and enjoy her dwelling. And third, 

we must gauge necessity in light of proposed alternatives.

1. “Necessary” means required, indispensable, essential.

“Necessary” is a “word[ ] of limitation.” In re Microsoft Corp. 

Antitrust Litig., 355 F.3d 322, 327 (4th Cir. 2004). As an adjective, it means “[i]ndispensable, requisite, essential, needful; 

that cannot be done without,” or “absolutely required.” 10 Oxford English Dictionary 275-76 (2d ed. 1989); Webster’s Third 

New International Dictionary 1510-11 (1966). The other sense 
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of the adjective is causal: “Inevitably determined or fixed by 

predestination or the operation of natural laws; happening or 

existing by an inherent necessity.” 10 Oxford English Dictionary at 275-76.

Necessary’s dictionary definitions reflect the word’s ordinary meaning. Consider its use in formal logic: a necessary 

condition is something essential for something else to be true. 

See 10 Oxford English Dictionary at 276; Irving M. Copi et al., 

Introduction to Logic 471 (14th ed. 2011). In the example

above, lemon juice is a necessary condition for making lemonade. 

In keeping with these definitions, English speakers distinguish desired goods from necessary ones. Thoreau categorized 

the “necessaries of life” as “Food, Shelter, Clothing, and Fuel.” 

Henry David Thoreau, Walden 14 (Courage Books 1990). 

“[N]ext to necessaries,” he ranked only “a few implements, a 

knife, an axe, a spade, a wheelbarrow, etc., and for the studious, lamplight, stationery, and access to a few books.” Id. at 15

(emphasis added). And years before he became president, Lincoln contrasted alcohol with staples like “flour, beef, bacon, or 

any other of the real necessaries of life.” Abraham Lincoln, 

Temperance Address, Springfield, Illinois (Feb. 22, 1842).

So the word “necessary,” without more, is stringent. When 

it is not followed by an object, as it is in this statute, English 

speakers and writers typically reserve “necessary” for our 

physiological needs and perhaps our needs for health and 

safety. Cf. A.H. Maslow, A Theory of Human Motivation, 50 

Psych. Rev. 370 (1943) (describing these as the foundational 

and second levels of Maslow’s hierarchy of needs). Necessities 
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do not include conveniences and creature comforts, much as 

they are desirable or even helpful.

True, we sometimes speak loosely, confusing our wants 

with our needs. Children may declare, “I need candy.” Adults 

may groan that they need a beer or a vacation. But wants are 

not needs. Parents remind their children that, while they want 

candy, they do not need it. So too with beers and vacations. As

The Rolling Stones put it: “You can’t always get what you 

want / But if you try sometimes you might find / You get what 

you need.” The Rolling Stones, You Can’t Always Get What 

You Want, on Let It Bleed (London Records 1969). And though 

we sometimes use the verb “need” loosely, we do not do the 

same with the adjective “necessary.” Nor does Congress write 

statutes with such loose, colloquial phrasing.

Like ordinary English speakers, the common law uses “necessary” in this strict sense of essential or indispensable. In contract law, “the predominant rule is that a minor’s contracts are 

generally voidable but that contracts for what are known as 

‘necessaries’ are enforceable.” Rodriguez v. Reading Hous.

Auth., 8 F.3d 961, 964 (3d Cir. 1993) (Alito, J.). “[C]ourts have 

traditionally viewed what constitutes necessaries narrowly.” 5 

Richard A. Lord, Williston on Contracts §9.19 (4th ed. 1993

& May 2018 update). The classic necessities are “food, clothing, and shelter,” and at least a basic education. Id. Ordinary 

food qualifies, though candies and fruit do not. Ordinary clothing qualifies, but elegant clothing and jewelry do not. A majority of courts hold that cars and trucks do not qualify, nor even

bicycles. Id. And while shelter qualifies if a minor’s parent or 
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guardian will not provide it, buying a house or furniture does 

not. Id.; Rodriguez, 8 F.3d at 964.

When writers wish to tighten or loosen the degree of necessity, they add modifiers. Describing a necessity as “absolute,”

“logical,” “physical,” or “bare” constricts the necessity required even more. But when Congress wants to loosen necessity to mean just “sufficiently important,” it uses the phrase 

“reasonably necessary.” E.g., Ayestas v. Davis, 138 S. Ct. 

1080, 1093 (2018) (interpreting 18 U.S.C. §3599(a)). Or it

pairs “necessary” with a looser term to include what is merely 

fitting or preferable. So Congress, in the All Writs Act, authorized courts to “issue all writs necessary or appropriate in aid of 

their respective jurisdictions.” 28 U.S.C. §1651(a).

Congress even used “necessary or appropriate” in another 

section of this Act. That provision authorizes the Secretary of 

Housing and Urban Development to “collect such information 

... as the Secretary determines to be necessary or appropriate.” 

42 U.S.C. §3608(e)(6). “[W]here Congress includes particular 

language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress 

acts intentionally and purposely in the disparate inclusion or 

exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) 

(internal quotation marks omitted). Congress knew how to 

broaden “necessary” by adding “or appropriate” in 

§3608(e)(6), but chose not to do so in §3604(f)(3)(B). Each 

statute is different, however, and the text, structure, or context 

of another provision may suggest a different interpretation or 

degree of necessity. Our holding today is limited to this particular provision of the Fair Housing Amendments Act.
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The statute applies “when such accommodations may be 

necessary,” but “may” does not change our analysis. 42 U.S.C. 

§3604(f)(3)(B). Vorchheimer cites a few district-court decisions that imply that the conditional “may” waters down the 

degree of necessity, requiring only a probability of necessity. 

E.g., Kuhn ex rel. Kuhn v. McNary Estates Homeowners Ass’n, 

228 F. Supp. 3d 1142, 1149 (D. Or. 2017); Sabal Palm Condos. 

of Pine Island Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1281 

n.11 (S.D. Fla. 2014). That is not so here. In this statute, “may”

signals not a low probability of necessity, but rather the conditional mood. The condition, when met, makes the accommodation necessary, as in the phrase “as the case may be.”

“[W]hen such accommodations may be necessary” in 

§3604(f)(3)(B) is another way of saying “whenever they are

necessary” or “as far as they are necessary.” 

In short, the Act’s necessity element requires that an accommodation be essential, not just preferable.

2. We must gauge necessity in light of the goal of achieving 

equal housing opportunity. Necessity tracks an underlying 

need or goal. Sometimes that goal is implicit; “necessary” 

without more often implies “necessary for survival.” Sometimes, it is explicit. The word “necessary” is often followed by 

“to” or “for,” specifying the need. Fuel, oxygen, and a spark 

are necessary to build a fire. A medical degree is necessary to 

practice medicine.

Here, the Act tells us what to look for: an “accommodation[ ] ... [that] may be necessary to afford [the disabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. 

§3604(f)(3)(B). The text pegs the necessity to the goal of 
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providing the particular tenant with equal housing opportunity. 

“[T]he object of the statute’s necessity requirement is a level 

playing field in housing for the disabled.” Cinnamon Hills 

Youth Crisis Ctr. v. St. George City, 685 F.3d 917, 923 (10th 

Cir. 2012). “Think of the blind woman who obtains an exemption from a ‘no pets’ policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs.” Id. The blind 

woman’s need is a way to navigate to and around her apartment. The paraplegic’s need is a way to get to his apartment. 

Once we identify the particular tenant’s need, we can gauge 

what is necessary to afford that tenant equal housing opportunity.

3. One must also consider the alternatives on offer to

gauge whether they satisfy the statutory goal. Giving the paraplegic a first-floor apartment is one way to give him access and 

thus equal opportunity to use his apartment. But an elevator 

would work too. That alternative would give him access to 

every apartment, so a first-floor apartment would no longer be 

necessary. The landlord has to offer at least one of the accommodations, but not both. If she does offer one of them, she has 

not “refus[ed] to make reasonable accommodations ... [that]

may be necessary to afford [the tenant] equal [housing] opportunity.” 42 U.S.C. §3604(f)(3)(B) (emphasis added). In that 

vein, food is necessary to survive. But if soup and salad are on 

offer, a sandwich is not necessary. Gauging necessity, then, requires considering whether another alternative on offer satisfies the goal of equal housing opportunity for that tenant.
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Consideration of the alternatives has long been built into 

the common law’s analyses of necessity. For example, in criminal law, the defense of necessity justifies breaking the law, but 

only if there is no “reasonable, legal alternative to violating the 

law.” United States v. Bailey, 444 U.S. 394, 410 (1980); accord

2 Wayne R. LaFave, Substantive Criminal Law §10.1(d)(5), at 

172-73 (3d ed. 2017 & Oct. 2017 update). Torts has a similar 

defense, and it also considers alternatives. See Restatement 

(Second) of Torts §196 cmt. d (1965). In double jeopardy, the 

manifest-necessity doctrine allows judges to declare mistrials. 

But, except in cases of jury deadlock, courts must first consider 

alternatives to doing so, such as granting continuances or giving curative jury instructions. 6 Wayne R. LaFave et al., Criminal Procedure §25.2(c)-(d), at 798-804 (4th ed. 2015); see, 

e.g., United States v. Jorn, 400 U.S. 470, 487 (1971) (plurality 

opinion). And the doctrine of easement by necessity grants the 

owner of a landlocked parcel a right of way to reach a public 

road. E.g., Leo Sheep Co. v. United States, 440 U.S. 668, 679 

(1979). Traditionally, the “necessity giving rise to the easement must be ‘absolute,’ affording no alternative means of ingress and egress.” Kapp v. Norfolk S. Ry. Co., 350 F. Supp. 2d 

597, 610 (M.D. Pa. 2004); see also John G. Sprankling, Understanding Property Law §32.05[B][3][a], at 554-55 (4th ed. 

2017).

Section 3604(f)(3)(B) likewise requires courts to consider 

alternatives. Two district-court decisions illustrate this consideration. In one, a disabled tenant was unable to drive her handicapped-accessible van over speed bumps. So it was necessary 

that her building’s parking lot have one entrance without a

speed bump, but not that both of its entrances lack speed
14

bumps. See Resnick v. 392 Cent. Park W. Condo., No. 07-cv1988, 2007 WL 2375750, at *2 (S.D.N.Y. Aug. 14, 2007). In 

the other case, a disabled couple needed on-site parking. So it 

was necessary that this couple have one parking spot, but not 

two. See Temple v. Hudson View Owners Corp., 222 F. Supp. 

3d 318, 324 (S.D.N.Y. 2016). “While having only one parking 

space may be less convenient for Plaintiffs [than having two], 

the law does not require defendants to provide the best possible 

accommodation” or plaintiffs’ preferred accommodation. Id.

When defendants have already provided an adequate alternative, “[they] need not adopt plaintiff’s preferred means of accommodation.” Resnick, 2007 WL 2375750, at *2.

Of course, the proffered alternatives must still satisfy the 

remainder of the subsection’s third element: affording equal 

housing opportunity. That may require more than “just those 

accommodations that are absolutely necessary for the disabled 

individual’s treatment or basic ability to function.” Anderson 

v. City of Blue Ash, 798 F.3d 338, 361-62 (6th Cir. 2015). To 

qualify as alternative “reasonable accommodations,” the accommodations must afford the particular disabled person equal 

opportunity both to use and to enjoy her home. An accommodation that does not provide equal opportunity, or that provides 

equal opportunity to use but not to enjoy, will not satisfy that 

requirement.

So courts must weigh whether the tenant’s requested accommodation and the landlord’s proposed alternative afford 

equal housing opportunity. Whether the accommodations do so

depends on that particular tenant’s abilities and disability, 
15

which may require a fact-intensive inquiry. But all the proffered alternatives that afford equal opportunity to use and to 

enjoy housing bear on whether a specific accommodation is 

necessary.

Beyond those observations, we need not offer detailed 

guidance on how judges and juries should compare various alternatives. We leave those details for another day. And, as we 

discuss below, a plaintiff need not plead or hypothesize alternatives to state a claim or establish a prima facie case.

B. Precedent supports this reading.

1. Our precedent. This reading of §3604(f)(3)(B) comports with our precedent. The Supreme Court has not defined 

the necessity element. And most of our cases on this provision 

have addressed other elements, not necessity. Our decision in 

Hovsons addressed the reasonableness element and who bears 

the burden of proving it, not what is necessary. Hovsons, Inc. 

v. Township of Brick, 89 F.3d 1096, 1103-06 (3d Cir. 1996). 

More recently, we applied the refusal element, not necessity. 

Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 110-12 

(3d Cir. 2017). 

The one time that we have applied the necessity element, 

we equated “necessary” with “required.” Lapid-Laurel, L.L.C. 

v. Zoning Bd. of Adjustment, 284 F.3d 442, 461 (3d Cir. 2002). 

In Lapid-Laurel, we held that, to establish necessity, the plaintiff had “to show that [the requested zoning variance] is required to make [the proposed nursing home] financially viable 

or medically effective.” Id. (emphasis added). In other words, 

the plaintiff had to prove “that the size of the proposed facility 
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either would be necessary for the facility’s financial viability 

(and therefore necessary to give the handicapped an equal opportunity to live in a residential neighborhood) or would serve 

a therapeutic purpose, (and would therefore be necessary to 

ameliorate an effect of the handicap).” Id.

We described that test as “[a] strict interpretation of the ‘necessity’ requirements.” Id. Applying that “strict interpretation,” we held that no reasonable jury could have found that the 

requested variance was necessary. Id. But because the case involved zoning variances, it focused on what was necessary to 

build and situate a nursing home in the first place. We had no 

occasion to consider an individual tenant’s request for accommodations or the relevance of a landlord’s proffered alternatives.

Vorchheimer, however, reads Lapid-Laurel differently. 

She asks us to distill a much weaker test of necessity from an 

earlier passage, in which we block-quoted a Fourth Circuit 

opinion: “‘And if the proposed accommodation provides no 

direct amelioration of a disability’s effect, it cannot be said to 

be “necessary.”’” Id. at 460 (quoting Bryant Woods Inn, Inc. 

v. Howard County, 124 F.3d 597, 604 (4th Cir. 1997)). 

But that sentence did not define necessity. All the quoted 

sentence did is set forth a threshold criterion. Its double-negative construction means only that an accommodation is unnecessary when it does not directly ameliorate a disability’s effect. 

That does not mean that an accommodation is necessary just 

because it does ameliorate a disability; it must “ameliorate 

[the] effect of the handicap” on the achievement of equal housing opportunity. Lapid-Laurel, 284 F.3d. at 461 (emphasis 
17

added). A beverage without lemon juice cannot be said to be 

real lemonade. But lemon juice alone does not lemonade make; 

it needs other ingredients, like water and a sweetener, in the 

right proportions. So that sentence did not weaken Lapid-Laurel’s test.

2. Other circuits. Likewise, sister-circuit precedent adopts 

the strict sense of “necessary.” As then-Judge Gorsuch recognized, “necessary” in §3604(f)(3)(B) bears its ordinary meaning: “The word implies more than something merely helpful or 

conducive. It suggests instead something ‘indispensable,’ ‘essential,’ something that ‘cannot be done without.’” Cinnamon 

Hills, 685 F.3d at 923 (quoting 10 Oxford English Dictionary

at 276). “Put simply, the statute requires accommodations that 

are necessary (or indispensable or essential) to achieving the 

objective of equal housing opportunities between those with 

disabilities and those without.” Id.

Other circuits make the same point using the language of 

causation. Necessity functions as a but-for causation requirement, tying the needed accommodation to equal housing opportunity. An accommodation is necessary if, “without the accommodation, the plaintiff will be denied an equal opportunity

to obtain [or use, or enjoy] the housing of her choice.” Wis. 

Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 749 (7th

Cir. 2006) (en banc); accord id. at 754-55 (“cause-in-fact” and 

“but for” cause); Anderson, 798 F.3d at 361 (“but for ... causation inquiry” (internal quotation marks omitted)); see also 

Lapid-Laurel, 284 F.3d at 460 (quoting other circuits’ cases 

adopting a “but for ... causation requirement”). Cf. Bhogaita v. 

Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289 
18

(11th Cir. 2014) (upholding a jury verdict for plaintiff because, 

“without the [emotional-support] dog [sought], [plaintiff’s] social interactions would be so overwhelming that he would be 

unable to perform work of any kind” (internal quotation marks 

omitted)). In short, these precedents confirm our, and LapidLaurel’s, reading of the plain text.

C. HUD’s informal guidance does not change the plain 

meaning of “necessary.”

Vorchheimer argues that alternative accommodations are 

irrelevant to analyzing necessity. She relies on a Joint Statement of the Department of Housing and Urban Development

and the Department of Justice, Reasonable Accommodations 

Under the Fair Housing Act (May 17, 2004). But it does not 

aid her cause.

The passage of the Joint Statement to which she points does 

not define necessity. It advises landlords to heed disabled tenants’ requests and superior knowledge: A landlord may “believe[ ] that, while the accommodation requested by [a disabled 

person] is reasonable, there is an alternative accommodation 

that would be equally effective.” App. 116. Because a disabled 

person “typically ha[s] the most accurate knowledge about [her 

own] functional limitations ... [she] is not obligated to accept 

an alternative accommodation suggested by the provider if she 

believes it will not meet her needs and her preferred accommodation is reasonable.” Id. This may well be prudent advice. But 

it does not purport to interpret the statutory requirement of necessity.
19

Even if one read the Joint Statement as bearing on necessity, it would be unpersuasive. It is not a notice-and-comment 

regulation, but a guidance letter. So it does not merit Chevron

deference. Christensen v. Harris County, 529 U.S. 576, 587 

(2000) (discussing the limits of Chevron U.S.A. Inc. v. NRDC, 

467 U.S. 837, 842-44 (1984)). It merits “‘respect’” under Skidmore, but “only to the extent that [its] interpretations [of the 

statute] have the ‘power to persuade.’” Id. (quoting and applying Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

Some of Skidmore’s factors weigh in Vorchheimer’s favor. 

The Joint Statement was issued fourteen years ago, and we 

have no reason to believe that it is “[in]consisten[t] with [the 

agency’s] earlier and later pronouncements.” Skidmore, 323

U.S. at 140. Even so, it is unpersuasive on this point. The passage does not purport to parse or define the statutory requirement of necessity, nor to consider what that word means in 

common parlance or in other areas of law. So it neither “thorough[ly] ... consider[s]” nor “valid[ly] ... reason[s]” about the 

particular statutory requirement of necessity. Id. It cannot overcome the plain meaning of the word, which requires courts to 

consider the alternatives on offer.

IV. VORCHHEIMER DID NOT PLAUSIBLY PLEAD

NECESSITY, SO DISMISSAL WAS PROPER

A. Necessity is amenable to dismissal.

Vorchheimer argues that necessity is so fact-specific, and 

so divorced from the alternatives on offer, that it is never amenable to dismissal—or even perhaps summary judgment. We 

disagree. As we have explained, the necessity element has a 
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legal meaning. And that legal meaning requires considering the 

alternatives. 

Our holding today in no way raises or shifts the pleading 

requirements or burden of proof for housing-discrimination 

claims. We do not require plaintiffs to hypothesize alternatives,

let alone to preempt hypotheticals. Nor do we change how 

courts should treat these claims, including the necessity element, on a motion to dismiss. To survive a motion to dismiss, 

a plaintiff need only plausibly plead enough facts to make out 

the three elements set forth in §3604(f)(3)(B): refusal, reasonable accommodation, and necessity/equal opportunity. 

Plaintiffs need not, and generally do not, plead alternative 

accommodations. So, ordinarily, district courts do not have alternatives before them on a motion to dismiss. Assessing alternatives typically requires a factual record, and developing that 

factual record requires discovery.

But this is not an ordinary case. Vorchheimer did not just 

plead facts supporting the statutory elements, including her disability and her requested accommodation. She also specifically 

pleaded the four alternative accommodations in her complaint. 

Am. Compl. ¶33.a-d. She attached Idzal’s correspondence (on 

behalf of The Philadelphian) outlining them. Id. Exs. 5, 8. And 

she attached four doctors’ letters that detail her disabilities and 

medical needs. Id. Exs. 4, 7, 9, 12. As exhibits to her own complaint, these materials were appropriate to consider on a motion 

to dismiss. See Mayer, 605 F.3d at 230; see also 5C Wright & 

Miller, Federal Practice and Procedure §1363 (3d ed. 2004 & 

Supp. Apr. 2018). They do not require going “outside the 

pleadings.” See Fed. R. Civ. P. 12(d). And if her own exhibits 
21

contradict her allegations in the complaint, the exhibits control. 

Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir. 2010); see 

also Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 

F.3d 405, 417 (3d Cir. 1997) (rejecting, on a motion to dismiss,

factual “assertions [that were] belied by both the remaining 

factual allegations and the law”).

Finally, this appeal arises on a motion to dismiss, not a motion for summary judgment. Nothing in our opinion adds elements to a plaintiff’s prima facie case or alters the burden-shifting framework that we apply at summary judgment. See LapidLaurel, 284 F.3d at 459; Hovsons, 89 F.3d at 1103.

B. Vorchheimer did not plausibly plead that her requested accommodation is necessary in light of the alternatives offered.

Although Vorchheimer asked to leave her walker in the 

lobby, she did not plausibly plead that it was necessary. Her 

own doctors’ letters establish two medical necessities. First, 

while she can “walk[ ] (with the assistance of a cane) the short 

distance from her car to the lobby,” “her use of a rolling walker 

is a medical necessity” to get from the lobby to and from her 

apartment. Am. Compl. Exs. 7, 9. So she needs “ready access 

to her walker or scooter.” Id. Ex. 9. Second, she needs to 

“[m]inimiz[e] her periods of unsupported standing.” Id. Ex. 7. 

“Even just standing, for periods as brief as 5 minutes, result[s] 

in the occurrence of progressive symptoms.” Id.

All four of the proffered alternatives, however, satisfy both 

of these medical needs. Staff could retrieve the walker from 
22

storage to the lobby, while Vorchheimer sits on a bench, or retrieve it before she arrives if she calls ahead. Am. Compl. ¶¶30, 

33.a & Exs. 5, 8. A staffer could bring the walker to her car. Id.

¶33.b & Ex. 8. The doorman could fold the walker, load it into 

her car, and unload and unfold it upon her return. Id. ¶33.d & 

Ex. 8. Or she could park in the indoor valet-parking garage and 

leave her walker there. Id. ¶33.c & Ex. 8. On their face, all four 

of these alternatives offer her “ready access to her walker or 

scooter” and “[m]inimiz[e] her periods of unsupported standing.” Id. Exs. 7, 9. Not one requires her to stand without support.

Nor, though Vorchheimer amended her complaint, did she 

plausibly plead the contrary. Her only suggestion that the alternatives are inadequate is half a sentence in a footnote at the 

very end of her brief, citing three paragraphs of her amended 

complaint. Br. 21 n.5 (citing Am. Compl. ¶¶34-35, 39). The 

cited paragraphs allege at least four occasions on which she left 

her walker in the lobby and had to stand and wait for front-desk 

staff to retrieve it. But in none of the examples she gives did 

she seek to use The Philadelphian’s alternatives; each time, she 

neither used the bench nor called ahead. See Am. Compl. ¶¶35, 

39. She alleged no problem with calling ahead to the front desk, 

having a doorman bring the walker to her, having a doorman 

load and unload the walker from her car, or using valet parking. 

Nor did she allege that she ever tried any of these options.

Vorchheimer also alleged a third medical necessity: preserving her “functional independence.” Am. Compl. ¶¶20, 23, 

32, 34, 48, 69, 70, 78. She claims that if she cannot herself get 

the walker in the lobby, she might have to wait for it, increasing 
23

her stress. But those allegations of necessity are conclusory and 

contradicted by her own exhibits. Her doctors’ letters do not 

state that independent access is necessary. On the contrary, Dr. 

Palevsky repeatedly described it as “preferable” or “medically 

preferable.” Id. Exs. 9, 12. It causes Vorchheimer less stress, 

which her doctor described as desirable. “When faced with two 

potential solutions, the one that permits the patient to retain her 

independence is the better option.” Id. Dr. Palevsky was careful to distinguish her needs from her preferences. So are we.

Even if it were necessary for Vorchheimer to retrieve her 

walker independently upon her return, a satisfactory option 

was on the table. Idzal offered to let her park in the indoor 

valet-parking garage, “where [she] could leave [her] rolling 

walker in close proximity to the pick-up and drop-off spot for 

[her] vehicle.” Am. Compl. Ex. 8. Vorchheimer’s only quibble 

with the valet-parking option is that she would have to “relinquish her coveted, designated outdoor parking space.” Am. 

Compl. ¶33.c. But nothing in the Act gives her a right to her 

preferred option. Wants are not needs.

One final note: If a civil-rights complaint fails to state a 

claim, a district court must grant leave to amend the complaint 

unless amendment would be futile or inequitable. Mullin v. 

Balicki, 875 F.3d 140, 151 (3d Cir. 2017). But here, Vorchheimer had already amended her complaint once and did not move 

to amend again or suggest what she might add. The District 

Court concluded that further amendment would be futile. We 

agree.
24

* * * * *

Carol Vorchheimer preferred to have access to her walker 

without having to wait for a staffer. But she did not plausibly 

plead that she needed to leave it in the lobby. To enjoy her 

home, she needed access to her walker without having to stand 

for minutes. She pleaded four alternatives on offer that, on their 

face, satisfied those needs. And she attached doctors’ letters 

that distinguish her needs from her preferences. Because the 

Act guarantees her only a “reasonable accommodation” that 

satisfies her needs, not the particular accommodation that she 

wanted, we will affirm.