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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13152-AA ________________________
CITY OF MIAMI GARDENS, a Florida municipal corporation,
Plaintiff - Appellant, versus
WELLS FARGO & CO., WELLS FARGO BANK N.A.,
Defendants - Appellees. ________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
BEFORE WILSON, Acting Chief Judge, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, and LUCK, Circuit Judges.*
BY THE COURT:
The Court having been polled at the request of one of the members of the Court and a
majority of the Circuit Judges who are in regular active service having voted against it (Rule 35,
Federal Rules of Appellate Procedure), the Petition for Rehearing En Banc is DENIED.
WILLIAM PRYOR, Circuit Judge, joined by NEWSOM and BRANCH, Circuit Judges,
respecting the denial of rehearing en banc:
A majority of the Court has voted not to rehear en banc our decision in City of Miami
Gardens v. Wells Fargo & Co., 931 F.3d 1274 (11th Cir. 2019), which held that the City of
* Chief Judge Ed Carnes and Judge Barbara Lagoa recused themselves and did not participate in this proceeding. Case: 18-13152 Date Filed: 04/27/2020 Page: 2 of 14
Miami Gardens lacked standing to bring its lawsuit under the Fair Housing Act against Wells
Fargo. Id. at 1277–78. As members of the panel, we write to explain why our decision adheres to
both Supreme Court and our precedent and to respond to Judge Wilson’s dissenting opinion.
It is well established that the City, as the party invoking federal jurisdiction, bore the
burden of establishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). And that
burden increased with the successive stages of litigation: although mere allegations sufficed at
the pleading stage, actual evidence was required to withstand summary judgment. Id.
In addition, federal courts always have “an independent obligation to assure that standing
exists.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). To be sure, the Supreme Court
has explained that, in limited circumstances, “elementary principles of procedural fairness”
mandate that a court provide the party with “an opportunity to provide evidence of [its standing]”
instead of sua sponte dismissing the action for lack of jurisdiction. Ala. Legislative Black Caucus
v. Alabama, 575 U.S. 254, 271 (2015). And our Court has held that the absence of notice of the
need to prove standing may sometimes mandate the application of a more lenient standard for
assessing standing. Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994).
Our decision adhered to these principles. The City failed to satisfy its burden of
establishing standing. And we respected the concerns of fairness and notice demanded by
precedent.
The City faced an uphill battle to establish its standing because it relied on an attenuated
theory of injury. Its principal theory was that Wells Fargo steered minority borrowers into
higher-cost loans that were more likely to go into foreclosure. These foreclosures then allegedly
decreased the value of the vacant properties and neighboring properties, which allegedly caused
economic injury to the City because property tax revenues decreased and its spending “to remedy
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blight and unsafe and dangerous conditions” increased. Miami Gardens, 931 F.3d at 1278–79.
To establish its standing, the City needed to prove that at least one of the purportedly
discriminatory loans caused or would cause it to suffer a de facto injury that a favorable decision
could redress. Id. at 1283.
In addition to standing, the City faced another hurdle: the statute of limitations. The
City’s complaint largely focused on purportedly discriminatory lending practices outside the
applicable two-year limitations period. See 42 U.S.C. § 3613(a)(1)(A). But the City contended
that all of Wells Fargo’s alleged violations were actionable under the continuing-violation
doctrine, which makes violations outside the limitations period actionable if the defendant
engaged in “an unlawful practice that continue[d] into the limitations period . . . [and] the last
asserted occurrence of that practice” was within the limitations period. Havens Realty Corp. v.
Coleman, 455 U.S. 363, 380–81 (1982) (footnote omitted). If the City could not establish a
violation of the Act during the limitations period, its complaint would be untimely.
Wells Fargo moved to limit initial discovery to the threshold question whether the City’s
complaint was timely. The City objected to that motion on the grounds that it would prevent it
from “prov[ing] its continuing violations and disparate impact allegations.” The district court
limited initial discovery to loans issued during the limitations period and later granted Wells
Fargo’s motion for summary judgment on the ground that the City had failed to establish that
Wells Fargo violated the Act within the limitations period.
The focus on the limitations period in the district court does not mean that the parties
ignored standing. To the contrary, Wells Fargo raised Article III standing “during the meet and
confer process,” in its answer to the operative complaint, and in its motion for summary
judgment. In the motion for summary judgment, Wells Fargo recited the City’s attenuated theory
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of standing and argued that, because the litigation was at the summary judgment stage, the City
needed to “actually produce some evidence that [it], and not just the borrower, ha[d] Article III
standing to sustain a claim under the Fair Housing Act.” Wells Fargo contended that the City
lacked standing because it failed to establish that it suffered an injury from a loan issued during
the limitations period. That argument was mistaken because a discriminatory loan issued at any
point could have established the City’s Article III standing. Nevertheless, Wells Fargo repeatedly
contended that the injury and causation elements of standing were lacking.
The district court also considered the City’s standing. It dismissed the City’s initial
complaint with a warning that any amended complaint would need to “allege . . . the facts that
confer standing to complain about private home foreclosures, the specific injury to the [City], the
precise number and dates of foreclosures, and the specific costs to the City of Miami Gardens.” It
even explained what the City would need to allege to satisfy each element of standing: “(1) how
Miami Gardens is injured, (2) how that injury is traceable to the conduct of each Wells Fargo
defendant, and (3) how the injury can be redressed with a favorable decision in this case.”
The City modeled its complaint after allegations in similar litigation that we held met the
requirements of Article III standing. See City of Miami v. Bank of Am. Corp., 800 F.3d 1262,
1272–73 (11th Cir. 2015), vacated and remanded on other grounds, 137 S. Ct. 1296 (2017). But,
as the Supreme Court has made clear, mere allegations are insufficient as the litigation
progresses. See Lujan, 504 U.S. at 561. To this end, the district court had told the City to read
City of Miami, 800 F.3d at 1273, which expressly warned Miami that it would need to prove its
allegations as the litigation progressed—a task that we predicted might be “difficult.” Id.
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On appeal, Wells Fargo again argued in its brief that the City had failed to establish that it
suffered an injury as a result of any loan issued during the limitations period. We then asked the
parties to address standing at oral argument, and they did so.
The City pointed to two kinds of evidence to establish its standing. First, it pointed to an
allegedly discriminatory loan, HC2, that “has been delinquent since it was issued,” unlike a
purportedly comparable loan issued to a nonminority borrower. Miami Gardens, 931 F.3d at
1283. The City contended that the delinquent loan “will likely go into foreclosure and cause the
City to suffer the kind of economic injuries asserted in the operative complaint.” Id. Second, it
pointed to ten loans issued before the limitations period that have gone into foreclosure and
argued that those loans have led to the economic injuries identified in the complaint. Id.
This evidence failed to satisfy either the injury or causation requirements of standing. See
id. at 1283–84. As to loan HC2, we were left only to speculate whether its delinquency will lead
to foreclosure, and if so, whether that foreclosure will impact property values, property-tax
revenues, or municipal spending. And even if we were to assume those links in the causal chain
were satisfied, nothing in the record supported an inference that it would be Wells Fargo’s
conduct that contributed to those injuries. Nor did the ten loans issued before the limitations
period that have gone into foreclosure establish standing because the City failed to present
evidence of the effect of the foreclosures on property-tax revenues or municipal spending. And
nothing suggested that Wells Fargo issued these loans on discriminatory terms or that Wells
Fargo’s conduct contributed to the decline in property values. In short, the City failed to satisfy
its burden at the summary-judgment stage of introducing evidence to establish its standing.
Because the City failed to satisfy its burden, we were obliged to vacate the summary judgment
against the City and remand for the district court to dismiss the action for lack of subject-matter
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jurisdiction.
Judge Wilson argues that our decision conflicts with our precedent in Huntsville and with
the precedent of the Supreme Court in Alabama Legislative Black Caucus. He argues that
Huntsville stands for the proposition that “it is unfair to expect plaintiffs to conjure proof of
standing if they were never put on notice that they would need to, and if they had limited
opportunity to discover or present such evidence.” Dissenting Op. at 11 n.1. He also stresses that
in Alabama Legislative Black Caucus, as here, the defendant made a meritless challenge to the
plaintiff’s standing, and he suggests that the presence of a meritless challenge to standing means
that a plaintiff lacks adequate notice of its need to prove standing. See id. at 12–13. But those
decisions do not control here.
The contrast between this appeal and Huntsville is stark. In Huntsville, we applied only
the pleading standard to determine whether the plaintiffs had standing to seek a preliminary
injunction. 30 F.3d at 1336. We applied this more lenient standard because the defendant had not
made any standing argument and “the plaintiffs had only a few hours of hearing time to present
their preliminary injunction case and were thereby forced to limit their evidence to what they
reasonably understood to be the contested issues.” Id. Unlike the limited time the plaintiffs had
in Huntsville to prepare their case, the City had more than two years between Wells Fargo’s
filing of its motion for summary judgment and the district court’s order granting it. The City
could have sought additional discovery to establish its standing in response to Wells Fargo’s
motion, which raised standing, but it failed to do so. See Fed. R. Civ. P. 56(d). It was not unfair
to require the City to meet the summary-judgment standard for standing in this circumstance.
Alabama Legislative Black Caucus too is inapposite. In Alabama Legislative Black
Caucus, the Supreme Court held that fairness concerns required giving the plaintiff an
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opportunity to present evidence of its standing instead of sua sponte dismissing for lack of
subject-matter jurisdiction. 575 U.S. at 270–71. Fairness concerns arose because the plaintiff had
introduced evidence that led to at least a “common sense inference” that it had standing, neither
the defendant nor the district court challenged the basis of that inference, and the plaintiff was
easily able to proffer evidence that would have established its standing. Id. Alabama Legislative
Black Caucus concluded that it was unfair to dismiss absent special notice to the plaintiff
because the plaintiff reasonably believed that it had established its standing and the defendant
had not argued to the contrary. Id. But contrary to Judge Wilson’s suggestion, the lack of a
meritorious challenge to a plaintiff’s standing does not by itself make it unfair to dismiss sua
sponte for lack of standing. Because the plaintiff in Alabama Legislative Black Caucus had
introduced some evidence to establish at least an inference of standing, and the defendant had not
challenged the plaintiff’s evidence of standing, the Supreme Court reasoned that the plaintiff
might have thought that the defendant did not contest the factual basis for its standing. Id. at 270.
So in the absence of special notice that the plaintiff had not established its standing before
dismissing the action, the Supreme Court required the district court to give the plaintiff another
opportunity to prove its standing. Id. at 270–71.
That special notice of the need to establish standing was not required here. The City not
only failed to establish its standing, it failed to so much as create an inference that it had
standing. And it received repeated notice of its need to prove its standing throughout the
litigation from both the district court and Wells Fargo. That Wells Fargo’s argument lacked merit
does not mean that it failed to provide the City with notice that it needed to establish its standing
at the summary-judgment stage. After all, Wells Fargo repeatedly grappled with the City’s
theory of standing—even if in a different time-frame—and the elements of standing that we held
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were lacking: injury and causation. The City faced those repeated challenges and knew from City
of Miami that it would need to produce evidence of its standing. But unlike the plaintiff in
Alabama Legislative Black Caucus, it failed to introduce evidence to create even an inference
that it had suffered an injury fairly traceable to Wells Fargo’s challenged conduct. In the face of
Wells Fargo’s repeated challenges, the City could not reasonably believe that it did not need to
respond with evidence of its standing.
Judge Wilson also argues that the limitation on discovery by the district court makes this
dismissal unfair. See Dissenting Op. at 13–14. To be sure, a district court should not grant
summary judgment “until the party opposing the motion has had an adequate opportunity for
discovery,” but we have made clear that “the party opposing the motion for summary judgment
bears the burden of calling to the district court’s attention any outstanding discovery.” Snook v.
Tr. Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870–71 (11th Cir. 1988). If the opposing
party fails to satisfy that burden, it cannot argue that the district court granted summary judgment
prematurely by failing to order or await the results of further discovery. Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1063–64 (11th Cir. 2015); Reflectone, Inc. v. Farrand Optical Co., 862
F.2d 841, 843–44 (11th Cir. 1989). In the same way, it is not unfair if a plaintiff fails to alert the
district court to its need for further discovery to prove its standing at summary judgment and a
circuit court decides in the first instance that the plaintiff failed to establish standing. In either
circumstance, the plaintiff has effectively consented to adjudication of the issues raised in the
summary-judgment motion based on the existing record by failing to avail itself of the
opportunity to seek further discovery.
The City failed to satisfy its “burden of calling to the district court’s attention any
outstanding discovery” on the standing issue. Snook, 859 F.2d at 871. The City filed a
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declaration under Federal Rule of Civil Procedure 56(d)—the preferred vehicle for advising the
district court of the need for additional discovery—but did not mention standing and later
retracted the declaration and opposed Wells Fargo’s motion for summary judgment on the
merits. The City filed that Rule 56(d) declaration with a motion to strike or, in the alternative,
stay or deny Wells Fargo’s refiled motion for summary judgment to allow for additional
discovery. And, to reiterate, Wells Fargo refiled its initial motion for summary judgment from
over a year earlier that had raised the issue of Article III standing. Yet neither the City’s
declaration nor its motion stated that it needed additional discovery to satisfy its burden of
establishing standing.
The City again failed to mention its need for additional discovery to establish its standing
when the district court held a hearing to determine whether to consider Wells Fargo’s refiled
motion for summary judgment or to expand discovery. The district court specifically asked the
City what additional evidence it would find useful before it ruled on Wells Fargo’s motion. The
City said that additional evidence would be “helpful to put some of the disputed issues and noise
in perspective,” but it never said that it needed any evidence to establish its standing.
The City cannot now contend that it is unfair to hold it to the record before the district
court. It was the City’s obligation to comply with Rule 56(d) by “specifically demonstrat[ing]
how postponement of a ruling on the motion” would enable it, “by discovery or other means, to
rebut the movant’s showing of the absence of a genuine issue of fact.” Reflectone, 862 F.2d at
843 (internal quotation marks omitted). Although we have acknowledged a limited “interests of
justice” exception that allows district courts to postpone ruling on a motion for summary
judgment in the absence of a party’s compliance with the technical requirements of Rule 56(d),
that limited exception still requires the opponent to provide notice in a manner equivalent to Rule
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56(d). Snook, 859 F.2d at 871; see also Reflectone, 862 F.3d at 844. The City failed to satisfy
that burden and so consented to the adjudication of the issues raised in Wells Fargo’s motion
based on the existing record.
And even when we gave the City the opportunity on appeal to explain how further
discovery would have enabled it to establish its standing, the City came up short. It stated at oral
argument that the additional evidence it would have sought was access to Wells Fargo’s
worldwide database of loans. See Oral Argument at 26:57–27:45 (June 14, 2019). Presumably,
the City would have used that data to run the statistical analysis that it referred to in its
complaint, but the City’s averment left us only to speculate about how that analysis would turn
out. That speculative contention is yet another reason why the fairness concerns in Alabama
Legislative Black Caucus are not present. See Ala. Legislative Black Caucus, 575 U.S. at 271
(explaining that because of the evidence the plaintiff proffered to the Supreme Court, it had “no
reason to believe that the [plaintiff] would have been unable to provide [evidence to establish its
standing]”).
Judge Wilson contends that the panel “treat[ed] the City like the teacher who takes away
a student’s pencils before a test, refuses to give them back, and then gives the student a failing
grade when she turns in a blank page.” Dissenting Op. at 14. But a more accurate analogy would
be that the City opted to take an exam—one that it had every reason to know would be
challenging and would require the use of pencils—yet it showed up with no writing instruments
at all and failed to let the proctor know about its predicament. The City was obliged to come to
this litigation prepared to prove its standing or to let the district court know that it did not have
the discovery it needed to do so. The City cannot now complain that it was unfair to hold it
responsible for its failing.
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WILSON, Circuit Judge, joined by MARTIN, Circuit Judge, dissenting from the denial of
rehearing en banc:
A panel of this court dismissed the City of Miami Gardens’s Fair Housing Act (FHA)
case for lack of Article III standing, sua sponte. It did so even though the City received neither
proper notice that it failed to prove standing nor a legitimate opportunity to discover or produce
the requisite evidence. But, in Alabama Legislative Black Caucus v. Alabama, the Supreme
Court held that, when a plaintiff receives neither proper notice that it failed to prove standing nor
an opportunity to produce the requisite evidence, sua sponte dismissal on Article III standing
grounds violates “elementary principles of procedural fairness.” 575 U.S. 254, 268–71 (2015).
The panel’s decision clearly conflicts with Alabama Legislative Black Caucus.1 When a panel
decision conflicts with Supreme Court precedent, en banc consideration is “necessary to secure
and maintain uniformity of the court’s decisions.” Fed. R. App. P. 35(b)(1)(A); see Fed. R. App.
P. 35(a)(1). Therefore, I dissent from the denial of rehearing en banc.
In Alabama Legislative Black Caucus, a racial gerrymandering case, a three-judge district
court panel held that an organizational plaintiff lacked standing, citing insufficient evidence to
demonstrate members’ residency in the relevant districts. 575 U.S. at 268–69. The Supreme
Court vacated and remanded. Id. at 258, 271. It held that “in these circumstances, elementary
1 The panel’s decision is also inconsistent with our precedent in Church v. City of Huntsville, in which we held that it is unfair to require standing evidence beyond the allegations in the complaint when the defendant did not “put[] the plaintiff[s] on notice that standing is contested” and the plaintiffs had a limited opportunity to present evidence. 30 F.3d 1332, 1336 (11th Cir. 1994). Although Church addressed standing in the context of a hearing on a preliminary injunction, id., the point remains the same—it is unfair to expect plaintiffs to conjure proof of standing if they were never put on notice that they would need to, and if they had limited opportunity to discover or present such evidence. 11 Case: 18-13152 Date Filed: 04/27/2020 Page: 12 of 14
principles of procedural fairness required that the [court], rather than acting sua sponte, give the
[plaintiff] an opportunity to provide evidence” supporting its standing. Id. at 271.
The “circumstances” in Alabama Legislative Black Caucus were these. Before trial, the
defendant had attacked the organizational plaintiff’s Article III standing. See id. at 270 (citing
defendant’s memorandum in support of motion for summary judgment). The case went to trial.
Id. at 260. There the plaintiff had the quintessential opportunity to put on evidence of standing
and did so—at least enough for an “inference” of standing. See id. at 269–70. And, “had it been
asked,” the plaintiff could have provided more evidence of standing, such as its own member
residency list; it did not need discovery to access or produce such evidence. See id. at 270–71.
If “elementary principles of procedural fairness required that the [court], rather than
acting sua sponte, give the [plaintiff] an opportunity to provide evidence” supporting its standing
there, see id. at 271, they do even more so here. To start, in Alabama Legislative Black Caucus,
the Supreme Court recognized that the defendant’s Article III standing attack was off-base and
thus failed to put the plaintiff on notice that it needed to shore up its standing. See id. at 270
(noting that the state had attacked the organizational plaintiff’s standing based on the idea that an
organization “lives” nowhere, not based on “inadequate member residency”). As in that case,
the defendant here—Wells Fargo—had attacked the City’s Article III standing.2 But, as the
panel here recognized, Wells Fargo’s argument was off-base too because it focused on the
“statutory requirement of timeliness”—i.e., the statute of limitations—rather than “the
constitutional requirements of standing.” See City of Miami Gardens, 931 F.3d at 1283. So, as
2 The panel distinguishes Alabama Legislative Black Caucus by saying that it did “not purport to speak to circumstances like those of this appeal, in which the opposing party raised the issue of standing.” City of Miami Gardens v. Wells Fargo & Co., 931 F.3d 1274, 1286 (11th Cir. 2019) (per curiam). The panel is demonstrably wrong; in fact, Alabama Legislative Black Caucus spoke to nearly identical circumstances. See Ala. Legislative Black Caucus, 575 U.S. at 270. 12 Case: 18-13152 Date Filed: 04/27/2020 Page: 13 of 14
in Alabama Legislative Black Caucus, Wells Fargo’s meritless argument failed to put the City on
notice that it needed to demonstrate that it met the constitutional requirements of standing.3
What is more, unlike in Alabama Legislative Black Caucus, the City of Miami Gardens
had no opportunity to prove its standing, much less the opportunity of a trial. Not only that—
despite its repeated requests, the City never even got the necessary discovery to prove its
standing, something the Alabama Legislative Black Caucus plaintiff didn’t need.
Here, unlike in Alabama Legislative Black Caucus, the defendant Wells Fargo controlled
the evidence that the City needed to prove its Article III standing. For example, one of the City’s
alleged injuries was reduced property tax revenues. To prove that Wells Fargo caused reduced
property tax revenues, the City first needed to identify more FHA-violative loans by Wells Fargo
dating years before the statute-of-limitations period. For that, the City needed information from
Wells Fargo’s database, as it alleged in its complaint. And it could only access this information
in this database via discovery. Yet from the outset, and over the City’s objections, the district
court limited discovery to the statute-of-limitations period and stayed “discovery on all matters
3 Note that there were other circumstances that gave the City every reason to believe that the district court had no concerns whatsoever about the City’s standing at partial summary judgment, which was limited to the statute-of-limitations issue. Suffice it to say, the district court diligently evaluated and monitored its jurisdiction and the City’s standing for years. The district court stayed this case pending the results of appeals to this court in two other cases: City of Miami v. Bank of Am. Corp., No. 13-24506 (S.D. Fla.) and City of Miami v. Wells Fargo & Co., No. 13- 24508 (S.D. Fla.), both of which involved standing issues for FHA claims virtually identical to those here. After this court held in both cases that the city plaintiff had adequately alleged facts to show Article III standing, see City of Miami v. Bank of Am. Corp., 800 F.3d 1262, 1272–73 (11th Cir. 2015); City of Miami v. Wells Fargo & Co., 801 F.3d 1258, 1265–66 (11th Cir. 2015), the district court in this case lifted the stay. When the Supreme Court granted certiorari in those cases, the district court stayed this case again. Ultimately the Supreme Court vacated and remanded the cases without addressing or suggesting any issue with Article III standing. Bank of Am. Corp. v. City of Miami, 581 U.S. __, 137 S. Ct. 1296, 1306 (2017). Thus, following the appeals, everyone thought the City of Miami Gardens had Article III standing. The district court lifted its stay and allowed this case to proceed. 13 Case: 18-13152 Date Filed: 04/27/2020 Page: 14 of 14
unrelated to Wells Fargo loans originated [during the statute-of-limitations period] until
resolution of the parties’ partial summary judgment motions.”
Because of this dependency on and deprivation of discovery, unlike in Alabama
Legislative Black Caucus, the City could not have snapped its fingers and produced evidence to
prove standing. It thus asked repeatedly for full discovery, i.e., discovery related to Wells Fargo
loans originated before the statute-of-limitations period—discovery necessary to prove its
injuries were fairly traceable to Wells Fargo’s conduct. But the City never got that discovery.
Not after it objected to the initial discovery limitation and stay. Not after it argued time and
again for full discovery. Not after its motions to compel full discovery. Not ever. Under
Alabama Legislative Black Caucus, “elementary principles of procedural fairness required that
the [panel], rather than acting sua sponte, give the [City]” that which it never got—full
discovery. See 575 U.S. at 271.
The panel tried to frame appellate briefing and oral argument as legitimate opportunities
for the City to produce evidence of its standing. But briefing and oral argument are no
substitutes for discovery. An “opportunity” to show evidence of standing is worthless if the
plaintiff never had the opportunity to discover such evidence. Thus, it is no surprise to me—nor
should it have been to the panel—that the City showed up empty handed at briefing and oral
argument.
In the end, the panel afforded the City nothing more than the illusion of procedural
fairness. It treats the City like the teacher who takes away a student’s pencils before a test,
refuses to give them back, and then gives the student a failing grade when she turns in a blank
page. That is simply not fair.