Regions Bank v. Legal Outsource PA

936 F.3d 1184

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 2019
• Docket: 17-11736
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11736 ________________________

D.C. Docket No. 2:14-cv-000476-PAM-MRM

REGIONS BANK, an Alabama state-chartered bank,

Plaintiff–Counter Defendant–Appellee,

versus

LEGAL OUTSOURCE PA, a Florida professional association, PERIWINKLE PARTNERS, LLC, a Florida limited liability company, CHARLES PAUL-THOMAS PHOENIX, individually, a.k.a. Charles PT Phoenix, LISA M. PHOENIX, individually,

Defendants–Counter Claimants–Appellants.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 28, 2019) Case: 17-11736 Date Filed: 08/28/2019 Page: 2 of 88

Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and MOORE, * District Judge.

WILLIAM PRYOR, Circuit Judge:

The main issue presented by this appeal has divided our sister circuits:

whether a guarantor constitutes an “applicant” under the Equal Credit Opportunity

Act. See 15 U.S.C. §§ 1691(a), 1691a(b). Compare Hawkins v. Cmty. Bank of

Raymore, 761 F.3d 937 (8th Cir. 2014), aff’d by an equally divided Court, 136 S.

Ct. 1072 (2016) (holding that a guarantor unambiguously is not an “applicant”

under the Act), and Moran Foods, Inc. v. Mid-Atl. Mkt. Dev. Co., 476 F.3d 436

(7th Cir. 2007) (opining the same), with RL BB Acquisition, LLC v. Bridgemill

Commons Dev. Grp., 754 F.3d 380 (6th Cir. 2014) (holding that the term

“applicant” is ambiguous and applying Chevron deference to an agency

interpretation that a guarantor is an “applicant”). Legal Outsource PA, a law firm

wholly owned by Charles Phoenix, defaulted on a loan from Regions Bank, which

triggered the default of a loan and mortgage that Regions issued to Periwinkle

Partners, LLC, an entity wholly owned by Charles’s wife, Lisa Phoenix. After the

obligors refused to cure the defaults, Regions sued to enforce its rights under the

loans and mortgage. The obligors filed several counterclaims asserting that

Regions violated the Equal Credit Opportunity Act by discriminating against Lisa

* Honorable K. Michael Moore, United States District Chief Judge for the Southern District of Florida, sitting by designation. 2 Case: 17-11736 Date Filed: 08/28/2019 Page: 3 of 88

and Charles based on their marital status when it demanded that they and Legal

Outsource guarantee the Periwinkle loan. The district court granted summary

judgment in favor of Regions. The district court ruled that Lisa Phoenix’s

counterclaims failed because she lacked standing as an “applicant” when she was

instead a guarantor. Because we conclude that a guarantor is not an “applicant”

under the Equal Credit Opportunity Act, we affirm the summary judgment in favor

of Regions. But the parties agree that we must remand to correct an error in the

judgment.

I. BACKGROUND

Beginning in 2005, Regions Bank extended a $450,000 line of credit to

Legal Outsource PA, a law firm owned by Charles Phoenix. Legal Outsource

renewed the loan on a yearly or semi-yearly basis, and it was last renewed in May

2013 with a maturity date in February 2014. Charles Phoenix also guaranteed the

2013 Outsource loan.

In 2011, Regions lent nearly $1.7 million to Periwinkle Partners, LLC, for

the purchase of a shopping center on Sanibel Island, Florida. At that time, the sole

member of Periwinkle Partners was a company owned by Charles Phoenix’s wife,

Lisa Phoenix. Charles Phoenix, Lisa Phoenix, and Legal Outsource all guaranteed

the Periwinkle loan. Under the Periwinkle loan, a default by any of the parties,

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including the guarantors, on any other loans that they had with Regions constitutes

a default under the Periwinkle loan.

In August 2013, Regions concluded that the Outsource and Periwinkle loans

were in default based on the obligors’ failure to provide requested financial

information and based on Periwinkle’s failure to pay its property taxes. Regions

then warned the obligors several times that it would accelerate the loans if the

obligors failed to cure the default. In February 2014, the Outsource loan matured

and Legal Outsource, which was no longer in operation, failed to pay it. Two

months later, Regions declared the Outsource loan in default and demanded its full

and immediate payment. According to the obligors, this declaration was a bad-faith

attempt by Regions to coerce Lisa Phoenix into securing the Outsource loan with

Periwinkle as collateral, but she refused to do so. After the Outsource loan default,

Regions also declared the Periwinkle loan in default and demanded its full and

immediate payment. The obligors never cured any of the defaults.

In August 2014, Regions filed a complaint against Charles and Lisa Phoenix,

Legal Outsource, and Periwinkle Partners for breach of the Legal Outsource

promissory note and guaranty, breach of the Periwinkle promissory note and

guaranties, foreclosure of the Periwinkle mortgage, and receivership. The obligors

answered the complaint and interposed 73 affirmative defenses and eight

counterclaims.

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The obligors twice amended the answer and added four new counterclaims

that each asserted a violation of the Equal Credit Opportunity Act. The

counterclaims—three of which were individually brought by Charles Phoenix, Lisa

Phoenix, and Legal Outsource respectively, and one of which was brought by Lisa

Phoenix and Periwinkle Partners—alleged that Regions discriminated on the basis

of marital status when it required the Phoenixes and Legal Outsource to guarantee

the Periwinkle loan. Regions then moved to dismiss the newly added

counterclaims, and the district count granted that motion in part. The district court

ruled that the guarantors of the Periwinkle loan all lacked statutory standing

because they were not “applicant[s]” under the Equal Credit Opportunity Act. But

the court also ruled that one of the counterclaims, which was brought on behalf of

Lisa Phoenix and Periwinkle Partners, had sufficiently alleged that Lisa Phoenix

and Periwinkle Partners were “applicants” under the Act, so it denied the motion as

to that count.

After Regions moved for summary judgment, the district court granted

summary judgment in favor of Regions both for its claims for breach of the

promissory notes and guaranties and against the obligors’ counterclaims. The

district court ruled that the obligors “do not dispute that they were in default under

the relevant notes and guaranties,” and it ruled that the counterclaims had “no

merit.” With respect to the remaining counterclaim under the Equal Credit

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Opportunity Act—the joint claim by Lisa Phoenix and Periwinkle—the district

court ruled that Periwinkle’s claim of discrimination was “frivolous” because, as

an entity, it had no marital status. And the district court ruled that “[t]he claim fails

as to Lisa Phoenix as well because, aside from the lack of any evidence to establish

any alleged discrimination on the basis of marital status, she was not an ‘applicant’

for the Periwinkle loan[;] she was a guarantor.” The district court referred to its

earlier order ruling that guarantors were not “applicants.”

The district court later issued a second summary judgment order granting

foreclosure on the Periwinkle mortgage. The court then dismissed the matter with

prejudice and directed the clerk to enter the judgment. The clerk entered the

judgment, and the obligors filed their notice of appeal.

Regions moved to amend the judgment to state, among other things, the

amounts due to Regions from the obligors. The district court granted Regions’

motion in part, instructing the clerk to enter an amended judgment providing for

the following relief:

[T]he Court will order the Clerk to amend the Judgment to provide that Regions Bank prevails on its claims against Defendants. The Judgment will further provide that Regions Bank is entitled to recover $540,054.24 from Defendants for the Legal Outsource loan . . . .

The clerk then entered the amended judgment, and the obligors amended their

notice of appeal to include the order granting Regions’ motion to clarify and the

amended judgment among the items subject to their appeal. 6 Case: 17-11736 Date Filed: 08/28/2019 Page: 7 of 88

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Moore ex rel. Moore v.

Reese, 637 F.3d 1220, 1231 (11th Cir. 2011).

III. DISCUSSION

This appeal presents several issues about whether the obligors are liable for

the default of the Legal Outsource loan and the Periwinkle loan and mortgage.

Although the obligors raise a host of issues that seek to obscure the nature of their

defaults, all but one of them lack any merit, and some border on being frivolous.

We decline to address them any further.

We divide our discussion of the remaining issues in two parts. First, we

explain that Lisa Phoenix’s counterclaims under the Equal Credit Opportunity Act

fail because a guarantor does not qualify as an “applicant” under the Act. Second,

we explain that a limited remand to correct erroneous language from the amended

judgment is warranted.

A. The District Court Correctly Granted Summary Judgment Against the Equal Credit Opportunity Act Counterclaims by Lisa Phoenix.

The district court did not err when it granted summary judgment against the

counterclaims by Lisa Phoenix under the Equal Credit Opportunity Act. As an

initial matter, although the obligors briefly mention Periwinkle’s counterclaim in

their argument about the Equal Credit Opportunity Act, they have failed to argue

or cite caselaw in either the district court or on appeal to rebut the conclusion that

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its status as an entity defeats its claim, as the district court ruled, so we consider

that issue abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,

680 (11th Cir. 2014) (“[A]n appellant must convince us that every stated ground

for the judgment against him is incorrect.”). We discuss only our reasons for

concluding that the district court correctly granted summary judgment against Lisa

Phoenix’s counterclaims on the ground that a guarantor is not an “applicant” for

credit within the meaning of the Act, see 15 U.S.C. § 1691a(b).

The Equal Credit Opportunity Act makes it unlawful for “any creditor to

discriminate against any applicant, with respect to any aspect of a credit transaction

. . . on the basis of . . . marital status.” Id. § 1691(a)–(a)(1). The Act defines an

“applicant” as “any person who applies to a creditor directly for . . . credit, or

applies to a creditor indirectly by use of an existing credit plan for an amount

exceeding a previously established credit limit.” Id. § 1691a(b) (emphases added).

The Act initially required the Federal Reserve Board to promulgate regulations to

enforce the Act. See 15 U.S.C. § 1691b (1974). And the Federal Reserve Board

promulgated Regulation B, which defines an applicant as “any person who

requests or who has received an extension of credit from a creditor,” which

includes “any person who is or may become contractually liable regarding an

extension of credit.” 12 C.F.R. § 202.2(e). That regulation further provides that the

term “applicant” includes “guarantors, sureties, endorsers, and similar parties.” Id.

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(emphasis added). Regulation B also prohibits a creditor from requiring the

signature of an applicant’s spouse, other than a joint applicant, on any credit

instrument if the applicant independently qualifies as creditworthy. Id.

§ 202.7(d)(1).

The obligors rely on the definition of “applicant” in Regulation B to argue

that Lisa Phoenix has statutory standing under the Act, so we must determine

whether we should defer to this regulation under the two-step framework

announced in Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837

(1984). See Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1187–88 (11th Cir. 2017).

First, we ask whether, after applying the “traditional tools of statutory

construction,” we can determine whether Congress has spoken clearly on the issue.

Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1298 (11th Cir. 2018) (quoting Fajardo

v. U.S. Att’y Gen., 659 F.3d 1303, 1307 (11th Cir. 2011)). If the statute is

unambiguous, we apply it according to its terms and give no deference to the

administrative interpretation. Arevalo, 872 F.3d at 1188. Second, “if the statute is

silent or ambiguous with respect to the specific issue presented, we must then

determine whether the agency’s interpretation is reasonable or based on a

permissible construction of the statute.” Id. An interpretation is reasonable if it is

“rational and consistent with the statute.” Id. (quoting Sullivan v. Everhart, 494

U.S. 83, 89 (1990)).

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In applying the “traditional tools of statutory construction,” we begin “with

the statutory text, and proceed from the understanding that unless otherwise

defined, statutory terms are generally interpreted in accordance with their ordinary

meaning.” Barton, 904 F.3d at 1298 (quoting Sebelius v. Cloer, 569 U.S. 369, 376

(2013)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 6, at 69 (2012) (“Words are to be understood in

their ordinary, everyday meaning—unless the context indicates that they bear a

technical sense.”). And we interpret the words of a statute based on their meaning

at the time of enactment. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539

(2019); Scalia & Garner, Reading Law § 7, at 78 (“Words must be given the

meaning they had when the text was adopted.”).

The Act, which was adopted in 1974, defines an applicant as “any person

who applies to a creditor directly for . . . credit, or applies to a creditor indirectly

by use of an existing credit plan for an amount exceeding a previously established

credit limit.” 15 U.S.C. § 1691a(b) (emphases added). English-language

dictionaries both before and after the enactment define the term “apply” to refer to

a request for something. See Apply, 1 The Oxford English Dictionary 407 (corr.

reprint 1961) (1933) (“To address oneself for information or aid, to have recourse,

to make application to”); Apply, 1 The Oxford English Dictionary 577 (2d ed.

1989) (same); Apply, Webster’s New International Dictionary of the English

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Language (Webster’s Second) 132 (2d ed. 1961) (“To make request; to have

recourse with a view to gain something; to solicit”); Apply, Webster’s New

Collegiate Dictionary 55 (1977) (“[T]o make an appeal or request esp[ecially] in

the form of a written application.”). So too do legal dictionaries. See Apply, Black’s

Law Dictionary 128 (rev. 4th ed. 1968) (“To make a formal request or petition,

usually in writing, to a court, officer, board, or company, for the granting of some

favor, or of some rule or order, which is within his or their power or discretion”);

Application, id. at 127 (“The act of making a request for something”). The Sixth

and Eighth Circuits have also both cited a definition of the term “apply” as

meaning “a request . . . usually for something of benefit to oneself.” See Hawkins,

761 F.3d at 941 (alteration adopted) (emphasis added) (quoting Webster’s Third

New Int’l Dictionary 105 (2002)); RL BB, 754 F.3d at 385 (quoting Webster’s

Third New Int’l Dictionary 105 (1993)); see also Apply, Webster’s Third New Int’l

Dictionary 105 (1971) (defining “apply” as “to make an appeal or a request

esp[ecially] formally and often in writing and usu[ally] for something of benefit to

oneself”). So, taken together, these definitions suggest that the ordinary meaning of

the term “applicant” is one who requests credit to benefit himself.

A guarantor does not fit within this definition. At the time of enactment,

English-language dictionaries defined “guaranty” to mean a promise by a

guarantor to answer for the payment of some debt if the person liable in the first

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instance is unable to pay. See Guaranty, 4 The Oxford English Dictionary 477

(corr. reprint 1961) (1933) (“a written undertaking made by a person (called the

guarantor) to be answerable for the payment of a debt or the performance of an

obligation by another person, who is in the first instance liable to such payment or

obligation”); Guaranty, 6 The Oxford English Dictionary 912 (2d ed. 1989)

(same); Guaranty, Webster’s Second 1110 (“An undertaking to answer for the

payment of some debt, or the performance of some duty, of another, in case of the

failure of such other to pay or perform”); Guaranty, Webster’s New Collegiate

Dictionary 509 (“[A]n undertaking to answer for the payment of a debt or the

performance of a duty of another in case of the other’s default or miscarriage”).

Legal dictionaries defined “guaranty” the same way. See Guaranty, Black’s Law

Dictionary 833 (rev. 4th ed.) (“A promise to answer for payment of debt or the

performance of obligation if person liable in the first instance fails to make

payment or perform obligation”); Guarantor, Black’s Law Dictionary 634 (5th ed.

1979) (“One who becomes secondarily liable for another’s debt or performance”).

Although a guarantor makes a promise related to an applicant’s request for credit,

the guaranty is not itself a request for credit, and certainly not a request for credit

for the guarantor. See Hawkins, 761 F.3d at 942 (“We find it to be unambiguous

that assuming a secondary, contingent liability does not amount to a request for

credit.”).

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To be sure, as the dissent points out, a guarantor’s promise supports a

would-be debtor’s loan application and ordinarily stems from the guarantor’s

desire that the application be granted. See Dissenting Op. at 62–63. But to say that

a guarantor requests credit by supporting another’s request for credit is to push the

bounds of ordinary usage—at the very least, it is to use one word in two obviously

different senses. And to say that the guarantor applies for credit by supporting

another’s application is to leave ordinary usage behind entirely.

An example should make this point clear. Suppose a high-school senior is

applying to her parents’ alma mater, and her parents—who happen to be wealthy

donors—promise the school that they will make a large gift if their daughter is

admitted. The parents’ promise supports the daughter’s application for admission,

just as a guarantor’s promise supports a loan applicant’s application for credit. The

parents will be grateful if their daughter is admitted, as a guarantor ordinarily is

grateful when the debtor’s application for credit is granted. But it would be

unnatural to say that the parents have “applied” for their daughter’s admission or to

call them “applicants” for admission. Under any ordinary use of the word, the

student is the only “applicant” in this scenario.

Applying the whole-text and consistent-usage canons to the Act further

confirms that the term “applicant” excludes guarantors. The whole-text canon

refers to the principle that a “judicial interpreter [should] consider the entire text, in

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view of its structure and of the physical and logical relation of its many parts,”

when interpreting any particular part of the text. Scalia & Garner, Reading Law

§ 24, at 167. “Properly applied, it typically establishes that only one of the possible

meanings that a word or phrase can bear is compatible with use of the same word

or phrase elsewhere in the statute . . . .” Id. at 168. Closely related to the whole-text

canon is the principle that “[a] word or phrase is presumed to bear the same

meaning throughout a text” unless context requires otherwise. Id. § 25, at 170;

accord Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932)

(“Undoubtedly, there is a natural presumption that identical words used in different

parts of the same act are intended to have the same meaning.”).

As Judge Colloton explained in his concurring opinion in Hawkins, three

aspects of the statutory text strongly suggest that the term “applicant” is only

compatible with “a first-party applicant who requests credit to benefit herself.”

Hawkins, 761 F.3d at 943 (Colloton, J., concurring). First, the Act uses the term

“applicant” in several provisions that can only refer to a first-party applicant. For

example, section 1691 speaks of a “completed application for credit,” 15 U.S.C.

§ 1691(d)(1), and of a creditor taking action in connection with the “applicant’s

application for a loan,” id.§ 1691(e)(1). We agree that “it would be unnatural to

conclude that a third party who offers a promise in support of an applicant thereby

submits what the statute describes as an ‘application for a loan,’ and a ‘completed

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application for credit.’” Hawkins, 761 F.3d at 943–44 (Colloton, J., concurring)

(citations omitted). Similarly, the Act provides that within thirty days “after receipt

of a completed application for credit, a creditor shall notify the applicant of its

actions on the application.” 15 U.S.C. § 1691(d)(1) (emphasis added). “The

statute’s use of the definite article shows that applicant is the single person to

whom credit would be extended, not a third party asking on behalf of the putative

debtor.” Hawkins, 761 F.3d at 943 (Colloton, J., concurring). In contrast with these

provisions, we are aware of no instance in which the Act refers to an “applicant” in

a context that would naturally suggest that a third-party guarantor could qualify.

Second, the statutory definition of “adverse action” on a credit application

excludes from that phrase “a refusal to extend additional credit under an existing

credit arrangement where the applicant is delinquent or otherwise in default.” 15

U.S.C. § 1691(d)(6) (emphasis added). This provision suggests that “the applicant”

has received credit and is responsible for making payments on an existing loan. “A

guarantor or other third-party requestor does not in ordinary usage become

‘delinquent’ or ‘in default’ on a loan or other existing credit arrangement.”

Hawkins, 761 F.3d at 944 (Colloton, J., concurring). And “if a guarantor could be

an ‘applicant,’ then the creditor’s refusal to extend additional credit to a delinquent

borrower would be an ‘adverse action’ on the guarantor’s ‘application,’ thus

entitling the third-party guarantor to a statement of reasons that the creditor need

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not furnish to the first-party applicant. [15 U.S.C.] § 1691(d)(2).” Id. As Judge

Colloton concluded, “This is not a natural reading of the text.” Id.

Third, the Act recognizes that third parties can be involved in requesting an

extension of credit to a first-party applicant, but it “distinguishes between the third-

party requestor and the ‘applicant.’” Id. The Act provides that “[w]here a creditor

has been requested by a third party to make a specific extension of credit directly

or indirectly to an applicant, the notification and statement of reasons required by

this subsection may be made directly by such creditor, or indirectly through the

third party, provided in either case that the identity of the creditor is disclosed.” Id.

(alterations adopted) (quoting 15 U.S.C. § 1691(d)(4)). That Congress chose to use

the term “applicant” to refer to the party receiving the credit and “third party” to

refer to a separate party who requests an extension of credit for the “applicant” is

telling. In short, after examining the term “applicant” in the context of the statute

as a whole, we conclude that there is ample evidence that the term bears the

ordinary meaning of a person who requests a benefit for himself.

Two of the three of our sister circuits that have considered whether the

administrative interpretation of the term “applicant” deserves Chevron deference

have also concluded that the Act unambiguously excludes guarantors. See

Hawkins, 761 F.3d at 942 (rejecting Chevron deference and explaining “[w]e find

it to be unambiguous that assuming a secondary, contingent liability does not

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amount to a request for credit”); Moran, 476 F.3d at 441 (“[T]here is nothing

ambiguous about ‘applicant’ and no way to confuse an applicant with a

guarantor.”). But see RL BB, 754 F.3d at 385 (applying Chevron deference to

section 202.2(e) on the theory that the term “applies” is ambiguous and that

guarantors qualify as requesting credit because they “make formal requests for aid

in the form of credit for a third party”). Because we agree with the Seventh and

Eighth Circuits that the ordinary meaning of “applicant” does not encompass a

guarantor, we hold that no deference is due section 202.2(e). So the district court

correctly granted summary judgment against the counterclaim by Lisa Phoenix’s

because she was not an “applicant” under the Act.

The dissenting opinion disagrees with our analysis of the meaning of the

term “applicant” under the Act on three grounds. First, the dissent argues that the

ordinary meaning of the word “applicant” reasonably includes guarantors.

Dissenting Op. at 60–63. Second, the dissent contends that our analysis fails to

reflect the “overriding national policy against discrimination that underlies the

[ECOA].” Id. at 76 (alteration in original) (internal quotation marks omitted).

Along the way to that conclusion, the dissent relies on two favorites of

purposivists: the notion that the Act, as a remedial statute, must be construed

broadly, id. at 49–51, 61, 65–71, 76, and the notion that the words of the Act must

be construed in the light of the Act’s overall purpose, id. at 76. Finally, the dissent

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contends that Congress acquiesced to the Board’s definition of “applicant” by

failing to amend the Act to expressly preclude the Board’s definition. Id. at 79–82.

None of these reasons is persuasive.

The dissent’s analysis begins by focusing on how the word “any” appears

four times in two relevant sentences of the Act. Id. at 60–61 (quoting 15 U.S.C.

§ 1691(a)(1) (making it “unlawful for any creditor to discriminate against any

application, with respect to any aspect of a credit transaction . . . .” (emphases

added)); id. § 1691a(b) (defining “applicant” to mean “any person who applies to a

creditor directly for . . . credit” (emphasis added))). The dissent argues that the

repeated use of the word “any” suggests that Congress intended for the statute to

have expansive reach and that we should not “engraft artificial limitations” to curb

the “expansive remedial purposes” of the Act. Id. at 61 (quoting Blue Shield of Va.

v. McCready, 457 U.S. 465, 472 (1982)). If all the dissent is arguing is that we

should not go beyond the ordinary meaning of the term “applicant” to narrow it

artificially, we agree entirely.

But the use of the word “any” does not change the meaning of the term

“applicant.” We have repeatedly explained that when Congress uses the word

“any” without “language limiting the breadth of that word, ‘any’ means all.” CBS

Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001)

(alteration adopted) (quoting Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186

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(11th Cir. 1997)). So when the Act speaks of an applicant as “any person who

applies to a creditor directly for . . . credit,” the word “any” signifies only that all

persons who apply to a creditor directly for credit qualify. The word or term that is

modified by “any” is still defined by its ordinary meaning. See, e.g., id. (using

dictionary definitions to interpret the word “termination” from “any termination”).

So the relevant question remains what the ordinary meaning of the term “person

who applies to a creditor directly for . . . . credit” includes.

The dissent’s attempt to answer this question leans heavily on the definition

of “apply” as “to make an appeal or request . . . usually for something of benefit to

oneself.” Dissenting Op. at 62 (emphasis altered) (quoting Hawkins, 761 F.3d at

941 (quoting Webster’s Third New Int’l Dictionary at 105 (1993)). The dissent

reasons, “[o]bviously, if something is ‘usually for something of benefit to oneself,’

it must sometimes be for something of benefit to another.” Id. (emphasis altered).

So, the dissent concludes, the word “applicant” can fairly be interpreted to include

a guarantor.

Yet the definition the dissent relies on proves the opposite. As Judge

Colloton pointed out in his concurrence in Hawkins, “under th[e] usual meaning,

an ‘applicant’ who ‘applies for credit’ is one who requests credit to benefit herself,

not credit to benefit a third party. That there are unusual meanings of ‘apply’ that

encompass making a request on behalf of another is not sufficient to make a term

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ambiguous for purposes of Chevron.” 761 F.3d at 943 (Colloton, J., concurring).

The only circumstance in which it is reasonable to construe a term according to an

unusual meaning is when the context makes the unusual meaning a natural one.

But, as we have explained, there is nothing natural about calling a guarantor an

applicant for credit, and the whole text of the Act makes that usage even less

plausible.

The dissent charges that our reading of the Act fails to apply the whole-text

canon, Dissenting Op. at 65–66, 66 n.20, but the dissent’s assertion is notably

lacking in references to the text. According to the dissent, if we viewed the Act as

a whole, we would see that “‘[t]he overriding national policy against

discrimination that underlies the [Act]’ means that ‘we cannot give’ words in that

statute a ‘narrow interpretation.’” Id. at 76 (quoting Bros. v. First Leasing, 724

F.2d 789, 793 (9th Cir. 1984)). But apart from its logically irrelevant reliance on

the word “any,” the dissent fails to point to any other provisions of the Act that

suggest that the term “applicant” includes a third party who requests a benefit for

the first-party applicant. And it is hornbook abuse of the whole-text canon to argue

“that since the overall purpose of the statute is to achieve x, any interpretation of

the text that limits the achieving of x must be disfavored.” Scalia & Garner,

Reading Law § 24, at 168.

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The dissent also contends that we fail to reconcile our reading of the text

with the “familiar canon of statutory construction that remedial legislation should

be construed broadly to effectuate its purposes.” Dissenting Op. at 65 (internal

quotation marks omitted) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336

(1967)). Indeed, we do not apply this so-called canon because it is of dubious

value. An eight-member majority of the Supreme Court has ridiculed it as “th[e]

last redoubt of losing causes,” Dir., Office of Workers’ Comp. Programs, Dep’t of

Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135 (1995),

and the Court has rejected applying it in a number of other decisions since 1995.

See, e.g., CTS Corp. v. Waldburger, 573 U.S. 1, 12 (2014) (“The Court of Appeals

supported its interpretation of [section] 9658 by invoking the proposition that

remedial statutes should be interpreted in a liberal manner. The Court of Appeals

was in error when it treated this as a substitute for a conclusion grounded in the

statute’s text and structure.”); Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171

(2007) (rejecting argument based on remedial-purpose canon and explaining that

although a statute’s remedial purpose was to benefit employees, “this remedial

purpose [does not] require[] us to interpret every uncertainty in the Act in favor of

employees”); Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 237, 244

(2004) (reversing court of appeals that relied on remedial-purpose canon to broadly

interpret the term “finance charge” from the Truth in Lending Act); Inyo Cty. v.

21 Case: 17-11736 Date Filed: 08/28/2019 Page: 22 of 88

Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701,

710–12 (2003) (rejecting argument based on the remedial-purpose canon that the

term “person” should be construed broadly under a statute to include Native

American tribes). As the Supreme Court has recently explained, the fundamental

problem with this so-called canon is its indeterminate coverage, as “almost every

statute might be described as remedial in the sense that all statutes are designed to

remedy some problem.” CTS Corp., 573 U.S. at 12. And the “canon” too is of

indeterminate effect because, “even if the Court [has] identified some subset of

statutes as especially remedial, [it] has emphasized that no legislation pursues its

purposes at all costs.” Id. (citation and internal quotation marks omitted).

Indeed, it is hard to imagine a more widely criticized “canon” of

interpretation. A leading treatise has labeled it a “false” canon and has explained

that it is “an open invitation to engage in ‘purposive’ rather than textual

interpretation, and generally to engage in judicial improvisation.” Scalia & Garner,

Reading Law § 64, at 364–66. And jurists as varied as Antonin Scalia and Richard

Posner share the same view. See Antonin Scalia, Assorted Canards of

Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581 (1990) (calling

the canon one of “the prime examples of lego-babble”); Richard A. Posner,

Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L.

Rev. 800, 809 (1983) (explaining that the canon is “unrealistic about legislative

22 Case: 17-11736 Date Filed: 08/28/2019 Page: 23 of 88

objectives” because it assumes that legislatures pursue a single remedial purpose,

when in reality a “statute [often] is a compromise between one group of legislators

that holds a simple remedial objective but lacks a majority and another group that

has reservations about the objective”). We agree with these authorities that we

should not employ this false canon to contravene the text of the Act.

The dissent also insists that we must “construe the literal language of the

[Act]” in the light of the “overriding national policy against discrimination that

underlies the [Act].” Dissenting Op. at 76 (quoting First Leasing, 724 F.2d at 793).

We take no issue with the dissent’s explanation of the vital role that women have

played in our nation’s history, of the discrimination they have faced in obtaining

credit, and that one of the purposes of the Act was to remedy this discrimination.

See Dissenting Op. at 51–60. But the dissent ignores that “[n]o legislation pursues

its purposes at all costs,” and that “it frustrates rather than effectuates legislative

intent simplistically to assume that whatever furthers the statute’s primary

objective must be the law.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.

633, 646–47 (1990) (quoting Rodriguez v. United States, 480 U.S. 522, 525–26

(1987)). When a statute includes limiting provisions, those provisions “are no less

a reflection of the genuine ‘purpose’ of the statute than the operative provisions,

and it is not the court’s function to alter the legislative compromise.” Scalia &

Garner, Reading Law at 21. Here, Congress created a right that runs only to

23 Case: 17-11736 Date Filed: 08/28/2019 Page: 24 of 88

“applicants.” And as the Seventh Circuit explained in Moran, because the term

“applicant” unambiguously does not encompass “guarantors,” reading the statute

in the way the dissent does would frustrate the limitations that Congress imposed

on statutory standing and “opens vistas of liability” that Congress did not envision.

476 F.3d at 441.

The dissent’s final substantive argument is that Congress has impliedly

adopted the Board’s definition of “applicant” by amending the Act without

changing the statutory definition during the 30 years since Regulation B was first

promulgated. Dissenting Op. at 79–82. Although the Supreme Court has

recognized that congressional inaction can, in limited circumstances, support an

inference that Congress has acquiesced to an agency or judicial interpretation, it

has explained that “[l]egislative silence is a poor beacon to follow” in construing a

statute. Zuber v. Allen, 396 U.S. 168, 185 (1969). And it has repeatedly warned

that congressional silence alone is ordinarily not enough to infer acquiescence. See

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159,

169 (2001) (“Although we have recognized congressional acquiescence to

administrative interpretations of a statute in some situations, we have done so with

extreme care.”); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,

137 (1985) (“[W]e are chary of attributing significance to Congress’ failure to

24 Case: 17-11736 Date Filed: 08/28/2019 Page: 25 of 88

act . . . .”); Bob Jones Univ. v. United States, 461 U.S. 574, 600 (1983)

(“Nonaction by Congress is not often a useful guide . . . .”).

The dissent cites Texas Department of Housing & Community Affairs v.

Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), in arguing that we

should infer congressional acquiescence, Dissenting Op. at 79–80, but this reliance

is misplaced. There, the Supreme Court held that when Congress amended the Fair

Housing Act in 1988, it was aware of and adopted the unanimous view of nine

circuits that had considered the matter and concluded that the statute authorized

disparate-impact claims. See Texas Dep’t of Hous., 135 S. Ct. at 2519.

The dissenting opinion contends that until 2014, the “vast majority of

courts” that had “examined” the issue held that guarantors had standing under the

Equal Credit Opportunity Act, Dissenting Op. at 80 (quoting RL BB, 754 F.3d at

386), but this argument is misleading. Before 2007, several federal and state courts

applied Regulation B, but they did so without discussing whether it was entitled to

deference. See, e.g., Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28,

30–31 (3d Cir. 1995) (assuming without discussion that the Board’s interpretation

was valid); Fed. Deposit Ins. Corp. v. Medmark, Inc., 897 F. Supp. 511, 514 (D.

Kan. 1995) (same); see also United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 38 (1952) (explaining that a decision is not precedential with respect to an

issue “not there raised in briefs or argument nor discussed in the opinion of the

25 Case: 17-11736 Date Filed: 08/28/2019 Page: 26 of 88

Court”). To our knowledge, the first court to “examine[]” whether the Board’s

definition deserved deference was the Seventh Circuit in Moran, in 2007, and it

concluded that it did not. See 476 F.3d. at 441. By the time Congress next amended

the Act in July 2010, the only other courts to opine on the issue were a federal

district court, which agreed with Moran and ruled that guarantors lack statutory

standing, see Champion Bank v. Reg’l Dev., LLC, No. 4:08-cv-1807-CDP, 2009

WL 1351122, at *3 (E.D. Mo. May 13, 2009) (reasoning that “a guarantor does

not, by definition, apply for anything”), and the Supreme Court of Iowa, which

applied Regulation B without considering Moran or whether it was entitled to

deference, see Bank of the West v. Kline, 782 N.W.2d 453, 458 (Iowa 2010). So

when Congress amended the Act in 2010, the weight of reasoned authority was

against the Board’s definition of applicant. And Congress’s prior amendments to

the Act took place before any court had considered the validity of Regulation B.

This situation obviously is nothing like the unanimous, reasoned precedent of nine

circuits in favor of an agency interpretation featured in Texas Department of

Housing. We can hardly infer congressional acquiescence in this circumstance.

The dissent advances one other objection to our analysis: that it “opine[s] on

an issue that . . . Lisa Phoenix and Periwinkle . . . never raised on appeal.”

Dissenting Op. at 35. As the dissent sees it, Lisa Phoenix has abandoned both of

26 Case: 17-11736 Date Filed: 08/28/2019 Page: 27 of 88

her counterclaims by failing to raise them “plainly and prominently” enough in the

obligors’ initial brief. Id. at 38 (quoting Sapuppo, 739 F.3d at 681). We disagree.

To be sure, the obligors’ briefing could most charitably be described as

clumsy. We emphatically “do not condone the unartful way in which [the obligors]

ha[ve] stated and argued the issues on this appeal.” Fed. Sav. & Loan Ins. Corp. v.

Haralson, 813 F.2d 370, 373 n.3. (11th Cir. 1987). Even so, reading their initial

brief in the light of the record, the other briefs in this appeal, and the principle that

“briefs should be read liberally to ascertain the issues raised on appeal,” Allstate

Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994), we have no doubt that Lisa

Phoenix has fairly presented the argument that the district court erred when it

dismissed at least one of her counterclaims relating to the Periwinkle loan based on

her status as a guarantor.

Consider what happened in the district court. The obligors pleaded four

counterclaims under the Equal Credit Opportunity Act based on the Periwinkle

loan: one by Charles Phoenix, one by Legal Outsource, one by Lisa Phoenix and

Periwinkle Partners jointly, and one by Lisa Phoenix individually. Citing Hawkins

for the proposition that guarantors are not applicants, the district court dismissed

the claims by Charles Phoenix, Legal Outsource, and Lisa Phoenix individually on

the ground that those claims rested solely on guarantor standing. But the district

court withheld judgment on the joint claim by Lisa Phoenix and Periwinkle

27 Case: 17-11736 Date Filed: 08/28/2019 Page: 28 of 88

because that claim—counterclaim 11—appeared to allege that both Lisa Phoenix

and Periwinkle were applicants. After further considering the matter, the district

court granted summary judgment against counterclaim 11 on the grounds that Lisa

Phoenix lacked standing and that Periwinkle had no marital status. The district

court also mentioned “the lack of any evidence to establish any alleged

discrimination on the basis of marital status,” which was a sufficient alternative

basis for the summary judgment, although the district court did not clearly

designate it as such.

Now consider the briefs. In a discrete section of their initial brief, the

obligors protest the district court’s “reli[ance] . . . on the Eighth Circuit’s ruling in

Hawkins” “to substantiate dismissing Lisa Phoenix’s and Periwinkle’s claims”

under the Equal Credit Opportunity Act. Initial Br. of Appellants at 30. And they

argue that the regulation defining the term “applicant” to include guarantors, see 12

C.F.R. § 202.2(e), is a valid exercise of regulatory power to implement the Act.

Initial Br. of Appellants at 31–32. They conclude that the claims by “Lisa Phoenix

and Periwinkle” “fall squarely within ECOA’s protections.” Id. at 32.

Logically, this argument can relate only to counterclaim 11—the joint claim

by Lisa Phoenix and Periwinkle—or counterclaim 12—Lisa Phoenix’s individual

claim as a guarantor of the Periwinkle loan. That the brief refers to both Lisa

Phoenix and Periwinkle suggests that the obligors might have counterclaim 11 in

28 Case: 17-11736 Date Filed: 08/28/2019 Page: 29 of 88

mind, but the district court did not rely on Hawkins to dismiss any claim by

Periwinkle. But, with respect to Lisa Phoenix, the argument responds squarely to

the primary basis on which the district court dismissed her share of counterclaim

11 and the sole basis on which it dismissed her counterclaim 12. In this

circumstance, we cannot agree with the dissent that “no claim is properly before us

on appeal.” Dissenting Op. at 35.

Consider the consequences if we accepted the obligors’ argument—that is, if

the obligors convinced us that the district court erred when it “relied . . . on the

Eighth Circuit’s ruling in Hawkins to substantiate dismissing Lisa Phoenix’s and

Periwinkle’s claims” because, contrary to Hawkins, guarantors are applicants under

the Act. Initial Br. of Appellants at 30. In that case, they necessarily would have

convinced us that “every stated ground for the judgment against [counterclaim 12]

is incorrect,” which is exactly what we have said an appellant must do “[t]o obtain

reversal of a district court judgment.” Sapuppo, 739 F.3d at 680. They also would

have convinced us that the primary and arguably the only “stated ground for the

judgment against [counterclaim 11] is incorrect.” Id. So, unless some alternative

ground for affirmance appeared from Regions’ brief or from the record, accepting

the obligors’ argument would require us to reverse the dismissal of counterclaim

12 at least and perhaps counterclaim 11 as well.

29 Case: 17-11736 Date Filed: 08/28/2019 Page: 30 of 88

We consider it telling that Regions agrees with us, at least in part, that the

obligors have raised the issue of guarantor standing. In its brief, Regions contends

that the obligors “have waived or abandoned any issue or argument with respect to

the dismissal of [counterclaims] IX, X, and XII.” Br. of Appellee Regions Bank at

34. But Regions does not contend that the obligors have abandoned counterclaim

11 or the general issue of guarantor standing. On the contrary, it reads the obligors’

brief to “contend . . . that summary judgment for Regions on Counterclaim count

XI was in error because, under the definition of ‘applicant’ supplied in Regulation

B [the governing regulation], Mrs. Phoenix possessed standing to sue in her

capacity as a guarantor of the Periwinkle loan.” Id. Regions proceeds to argue on

the merits that the district court correctly granted summary judgment against

counterclaim 11 because the obligors have produced no evidence of discrimination

and because guarantors are not applicants. See id. at 35–42.

That Regions does not share the dissent’s view that Lisa Phoenix

“indisputably abandoned” counterclaim 11 is relevant in two respects. Dissenting

Op. at 41. First, even if Lisa Phoenix waived or forfeited counterclaim 11 in her

initial brief, Regions has waived or forfeited the waiver or forfeiture by conceding

in its own brief that she raised it. And nothing Regions said at oral argument can

undo that concession. See APA Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d

30 Case: 17-11736 Date Filed: 08/28/2019 Page: 31 of 88

1261, 1269 (11th Cir. 2007) (“[W]e do not consider claims not raised in a party’s

initial brief and made for the first time at oral argument.”).

The second way in which Regions’ concession matters is that the main

principle that animates the abandonment rule is fair notice. As we have explained,

“an appellee is entitled to rely on the content of an appellant’s brief for the scope

of the issues appealed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330

(11th Cir. 2004) (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d

1, 3 (1st Cir. 1983)); accord Haralson, 813 F.2d at 373 n.3. That Regions thought

the obligors raised counterclaim 11 in their brief—even as it concluded that they

had abandoned other claims—suggests that the obligors’ brief gave Regions fair

notice that counterclaim 11 was an issue.

To be sure, an appellee’s assertions about what is or is not abandoned do not

bind us. Claims of abandonment may often be overstated; in this appeal, we are not

sure we agree with Regions that Lisa Phoenix has abandoned counterclaim 12. And

there are many reasons why appellees may fail to raise meritorious abandonment

arguments. But the point remains: that Regions understood the obligors’ brief to

present a live argument about counterclaim 11 and the general issue of guarantor

standing is surely evidence that it is reasonably understood to do so.

Consider also that both amicus briefs—one by the Consumer Financial

Protection Bureau and one by five bankers associations—fully briefed the issue of

31 Case: 17-11736 Date Filed: 08/28/2019 Page: 32 of 88

Lisa Phoenix’s guarantor standing under the Act. Neither brief ever hinted at the

possibility that Lisa Phoenix abandoned her counterclaims. That all of the amici,

like Regions, consider Lisa Phoenix to have adequately raised the issue of her

statutory standing reinforces our conclusion that Lisa Phoenix did not abandon her

argument about counterclaims 11 and 12.

Our dissenting colleague’s contention that Lisa Phoenix has abandoned her

counterclaims turns on her reading—which we respectfully submit is an

overreading—of three sentences in the obligors’ brief, each of which seems to

suggest that the Equal Credit Opportunity Act claim on appeal is that Regions

violated the Act when it allegedly demanded that Lisa Phoenix guarantee the

Outsource loan. See Dissenting Op. at 38–39. The obligors’ statement of the issues

presents the question, “Does a wife who refuses to collateralize loans or guaranty

her husband’s unsecured business debt have Equal Credit Opportunity Act

(ECOA) standing as an ‘applicant’ . . . ?” Initial Br. of Appellants at 1 (emphasis

added). Then, in their argument section, the obligors protest that excluding

guarantors from the definition of “applicant” “gives lenders an untethered license

to require spouses to collateralize and sign for their husbands’ loans with

impunity,” and they contend that Lisa Phoenix was required “to sign for and

collateralize her husband’s business debts.” Id. at 30, 32 (emphases added). As the

dissent sees it, these phrases can mean only that Lisa Phoenix has replaced her

32 Case: 17-11736 Date Filed: 08/28/2019 Page: 33 of 88

counterclaims based on the Periwinkle claim with a wholly novel claim based on

Regions’ alleged demand that she guarantee the Outsource loan, even though the

obligors never pleaded such a claim in the district court and no such claim is

concerned in the judgment on appeal, and even though it would be nonsensical for

Lisa Phoenix to assert guarantor standing with respect to a loan she never

guaranteed.

Although we certainly agree that the obligors’ brief is no model of clarity,

we do not think that its references to the Outsource loan nullify Lisa Phoenix’s

challenge to the ground on which her counterclaims were dismissed. In the

obligors’ telling of the facts, Regions demanded that Lisa Phoenix collateralize the

Outsource loan, she refused, and Regions punished her refusal by declaring falsely

that the Periwinkle loan was in default. We read the phrases on which the dissent

leans as highlighting the crucial narrative role of Regions’ demand and Lisa

Phoenix’s refusal in the obligors’ version of the facts, not as obliterating her legal

theory. And we do not see how we can read them any other way without violating

the rule that “briefs should be read liberally to ascertain the issues raised on

appeal.” Swann, 27 F.3d at 1542. The abandonment rule would swell to a scope

previously unimagined if we were to hold that an appellant abandons her legal

theory whenever she places undue emphasis on one part of her factual narrative

over another. We conclude that Lisa Phoenix has preserved at least one of her

33 Case: 17-11736 Date Filed: 08/28/2019 Page: 34 of 88

counterclaims under the Equal Credit Opportunity Act and that the issue of

guarantor standing is before us. And, for the reasons we have explained, we hold

that the district court correctly granted summary judgment against those

counterclaims because a guarantor is not an “applicant” for credit under the Act.

B. The Amended Judgment Must Be Corrected on Remand.

The amended judgment states “that Regions Bank is entitled to recover

$540,054.24 from Defendants for the Legal Outsource loan.” As both parties

agreed at oral argument, the counts regarding the Legal Outsource loan name only

Charles Phoenix and Legal Outsource as defendants, so the judgment erroneously

states that Lisa Phoenix and Periwinkle Partners are also liable for the Outsource

loan. We remand with instructions to correct the judgment to state that only

Charles Phoenix and Legal Outsource are liable for the damages owed for the

default of the Outsource loan.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Regions, and we

REMAND with instructions to correct the judgment.

34 Case: 17-11736 Date Filed: 08/28/2019 Page: 35 of 88

ROSENBAUM, Circuit Judge, concurring in part and dissenting in part:

Today we opine on an issue that Appellants Lisa Phoenix and Periwinkle

Partners LLC (“Periwinkle”) never raised on appeal. Courts have noted that

deciding an issue no appellant raised is generally unwise. But the Majority Opinion

nevertheless insists that we do so. And in following this course, it purports to

constrict the Equal Credit Opportunity Act (“ECOA”) to preclude it from

accomplishing one of its primary remedial goals: disentangling spouses’ financial

intertwinement when such intertwinement is not necessary. I therefore feel it

necessary to explain the problems with the Majority Opinion’s analysis.

Section I of this dissent demonstrates that no claim is properly before us on

appeal. And Section II responds to the Majority Opinion’s incorrect conclusion that

guarantors lack standing as “applicants” under the ECOA.

I.

At different points in this litigation, Defendants-Counterclaimants-Appellants

Lisa Phoenix and Periwinkle have arguably raised two ECOA claims possibly

relevant to this appeal. 1 Each claim involves a separate Regions Bank loan.

1 The other Defendants-Counterclaimants-Appellants’ claims are not relevant to the ECOA analysis the Majority Opinion has chosen to conduct, so I do not address them here.

35 Case: 17-11736 Date Filed: 08/28/2019 Page: 36 of 88

The Majority Opinion construes the claim on appeal to concern a loan Regions

made to Periwinkle, a company Lisa Phoenix indirectly owns. As the Majority

Opinion interprets this claim, Lisa Phoenix invokes the ECOA to contest Regions’s

demand that her husband, Charles Phoenix, and his law firm, Legal Outsource PA,

guaranty the Periwinkle loan (“Periwinkle Loan Claim”).

The second potential ECOA claim possibly relevant on this appeal involves a

loan Regions made to Legal Outsource. Under this potential claim, Lisa 2 asserts that

Regions violated the ECOA when it required her (through her company Periwinkle)

to guaranty a loan it had made to her husband Charles’s business, Legal Outsource

(“Legal Outsource Loan Claim”).

But neither the Periwinkle Loan Claim nor the Legal Outsource Loan Claim

is properly presented on appeal.

To understand why, it makes sense to start by looking at the sole ECOA claim

Lisa identified in the issues she presented on appeal: “Does a wife who refuses to

collateralize loans or guaranty her husband’s unsecured business debt have

[ECOA] standing as an ‘applicant’ to sue if the lender then forces over a dozen

technical defaults as pretense to falsely accelerate and foreclose on her separate

secured loan?” Appellants’ Br. at 1 (emphasis added). This language

unambiguously seeks to assert Lisa’s status as an “applicant” on the Legal Outsource

2 To avoid confusion, I refer to Charles and Lisa Phoenix by their first names. 36 Case: 17-11736 Date Filed: 08/28/2019 Page: 37 of 88

Loan Claim, as a result of Periwinkle’s legal status as a guarantor for that loan, since

only the Legal Outsource Loan Claim involved an alleged demand by Regions to

guaranty Lisa’s husband’s business debt. The language of the issue as Lisa has

phrased it on appeal does not implicate the Periwinkle Loan Claim, since that was a

loan involving Lisa’s own business, not her husband’s business.

Lisa’s actual argument in support of her ECOA claim also leaves no doubt

that she challenges only Regions’s demand that she (through her company

Periwinkle) guaranty her husband’s Legal Outsource Loan. Her argument is short;

it’s less than three pages. But in that space she repeatedly argues that Regions

violated the ECOA by trying to make her guaranty her husband’s loans. Appellants’

Br. at 30, 32. Unfortunately for Lisa, though, she did not raise the Legal Outsource

Loan Claim in the district court.

As for the Periwinkle Loan Claim, Lisa never once argues it in this appeal.

True, the loan to Periwinkle comes up in her briefs, but only in the context of

arguments that the Majority Opinion (correctly) decides are meritless, if not

“frivolous.” Maj. Op. at 7. Significantly, she never argues that the district court was

wrong in finding she lacked standing as a guarantor to contest the Periwinkle Loan

Claim.

So what exactly is properly on appeal?

Nothing.

37 Case: 17-11736 Date Filed: 08/28/2019 Page: 38 of 88

We have repeatedly explained that “[a]ny issue that an appellant wants the

Court to address should be specifically and clearly identified in the brief.” Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).3 Not only that,

but “[a] party fails to adequately brief a claim when he does not plainly and

prominently raise it, for instance by devoting a discrete section of his argument to

those claims.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014) (citation and internal quotation marks omitted). When that happens, “the

issue—even if properly preserved at trial—will be considered abandoned.” Access

Now, 385 F.3d at 1330 (citation and internal quotation marks omitted).

Here, Lisa’s briefs certainly do not “plainly and prominently raise” her

Periwinkle Loan Claim. For starters, her opening brief does not “devot[e] a discrete

section of [the] argument” to it. In fact, as I have noted, it does not even identify the

claim in an issue on appeal or ever expressly mention the Periwinkle Loan Claim in

its ECOA arguments. And her reply brief does not address the issue at all.

Nor, contrary to the Majority Opinion’s suggestion, does Lisa’s mention of

the district court’s reliance on Hawkins v. Community Bank of Raymore, 761 F.3d

937 (8th Cir. 2014), aff’d by an equally divided Court, 136 S. Ct. 1072 (2016), justify

the Majority Opinion’s determination of an issue that Lisa did not raise on appeal.

3 The Federal Rules of Appellate Procedure similarly require an appellant’s brief to “contain, under appropriate headings and in the order indicated . . . a statement of the issues presented for review.” Fed. R. App. P. 28(a)(5). 38 Case: 17-11736 Date Filed: 08/28/2019 Page: 39 of 88

To be sure, the district court did invoke Hawkins to dismiss counterclaims relating

to the Periwinkle Loan Claim. Maj. Op. at 27. But Lisa’s brief leaves no doubt that

she raised the district court’s reliance on Hawkins for only an altogether different

and unrelated point: she cited the district court’s mention of Hawkins solely to

support her argument concerning the Legal Outsource Claim. 4

In fact, in the very next paragraph following the general reference to Hawkins

the Majority Opinion cites, see Maj. Op. at 27, Lisa characterized Hawkins as

“grant[ing] lenders an untethered license to require spouses to collateralize and sign

for their husbands’ loans with impunity.” Appellants’ Br. at 30 (emphasis added).

And while Lisa argued that she and Periwinkle “fall squarely within ECOA’s

protections,” Maj. Op. at 28 (quoting Appellants’ Br. at 32), she made clear that she

meant that the ECOA protected her (through her ownership of Periwinkle) and

Periwinkle as guarantors of the Legal Outsource Loan: she said that “Regions

required [her through Periwinkle] to sign for and collateralize her husband’s

business debts hence violating ECOA prohibitions.” Appellants’ Br. at 32 (emphasis

added).

There’s no doubt that Lisa argued that guarantors have standing under the

ECOA, but her brief makes clear that she made this argument in the context of the

4 Lest there be any question about what Lisa argued on appeal, I have included as an appendix to this opinion the statement of issues from Lisa’s opening brief, as well as the entirety of her ECOA argument. 39 Case: 17-11736 Date Filed: 08/28/2019 Page: 40 of 88

Legal Outsource Loan Claim—that is, that under the ECOA, Regions could not

require her individually or through her company to guarantee her husband’s

company Legal Outsource’s loan. But as I have noted, the problem with that

argument is Lisa never raised it in the district court.

As for the Periwinkle Loan Claim she did raise in the district court, the most

we can say about that is that Lisa’s brief on appeal nakedly cites her Counterclaim

11, which in turn, alleged the Periwinkle Loan Claim in the district court. But

significantly, Lisa’s brief cites Counterclaim 11 in the context of arguing the Legal

Outsource Loan Claim, in an apparent effort to suggest that the Legal Outsource

Loan Claim was properly raised in the district court. (It was not.)

And even if we ignore the context of the citations to Counterclaim 11,

(literally) bare citations alone do not preserve an argument on appeal. We have

found abandonment when litigants have done more to preserve their claims, such as

“when [at least] passing references appear in the argument section of an opening

brief,” and when “they are buried within . . . arguments.” Sapuppo, 739 F.3d at 682.

As this Court has recently “remind[ed] the . . . bar[,] . . . specific factual and legal

argumentation at every stage of . . . proceedings” is “importan[t]” to preserving

issues on appeal. United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019)

40 Case: 17-11736 Date Filed: 08/28/2019 Page: 41 of 88

(W. Pryor, Newsom, Vratil, JJ.).5 So under our unequivocal precedent, Lisa’s

briefing indisputably abandoned the Periwinkle Loan Claim.

Lisa’s counsel likewise did not raise the Periwinkle Loan Claim issue at all

during his initial oral argument. And during his rebuttal, while Lisa’s counsel briefly

addressed the “ECOA issue,” he argued only that Lisa had raised a triable issue of

fact that Regions had required Lisa “to provide collateral for her husband’s loan.”

Oral Argument at 24:04, 24:25, Regions Bank v. Legal Outsource PA, et al. (No. 17-

11736), http://www.ca11.uscourts.gov/oral-argument-recordings?title=17-11736&

field_oar_case_name_value=&field_oral_argument_date_value%5Bvalue%5D%

5 Indeed, this Court has consistently enforced the abandonment rule. See, e.g., Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1259 n.9 (11th Cir. 2019) (en banc); Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1302 n.2 (11th Cir. 2019) (Tjoflat, E. Carnes, W. Pryor, JJ.); Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1306 n.1 (11th Cir. 2018) (W. Pryor, Branch, Anderson, JJ.); United States v. Wenxia Man, 891 F.3d 1253, 1275 (11th Cir. 2018) (W. Pryor, J. Pryor, Black, JJ.); Feldman v. Am. Dawn, Inc., 849 F.3d 1333, 1345 (11th Cir. 2017) (W. Pryor, Jordan, Baldock, JJ.); United States v. Stein, 846 F.3d 1135, 1151 n.15 (11th Cir. 2017) (W. Pryor, J. Pryor, Story, JJ.); Jeune v. U.S. Att’y Gen., 810 F.3d 792, 797 n.2 (11th Cir. 2016) (W. Pryor, J. Carnes, Siler, JJ.); Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1283 (11th Cir. 2015) (W. Pryor, Jordan, Jones, JJ.); In re McFarland, 790 F.3d 1182, 1191 n.10 (11th Cir. 2015) (Tjoflat, W. Pryor, Baldock, JJ.); Perez v. U.S. Bureau of Citizenship & Immigration Servs., 774 F.3d 960, 964 (11th Cir. 2014) (per curiam) (Marcus, W. Pryor, Fay, JJ.). But puzzlingly, today, the Majority Opinion selectively applies the abandonment rule to correctly decline ruling on whether a corporation can be an “applicant” under the ECOA, since “the obligors briefly mention Periwinkle’s counterclaim in their argument about the Equal Credit Opportunity Act, [but] they have failed to argue or cite caselaw in either the district court or on appeal to rebut the conclusion that its status as an entity defeats its claim, as the district court ruled . . .” Maj. Op. at 7–8. Yet the Majority Opinion incorrectly stretches to “resolve” a specific claim Lisa does not even raise at all in her briefs on appeal—whether Lisa may rely on the ECOA to contest Regions’s demand that her husband, Charles, and his law firm, Legal Outsource PA, guaranty the loan to Periwinkle.

41 Case: 17-11736 Date Filed: 08/28/2019 Page: 42 of 88

5Byear%5D=&field_oral_argument_date_value%5Bvalue%5D%5Bmonth%5D=

(“Oral Argument”).

The only time during this appeal that either party raised Lisa’s role as a

guarantor of the Periwinkle Loan was in Regions’s opposition brief. Appellee’s Br.

at 39–42. According to the Majority Opinion, this makes the argument fair game.

Maj. Op. at 30–31. But here’s the problem: Lisa never took the bait. She didn’t

adopt Regions’s characterization of her argument. She didn’t respond to Regions’s

argument in her reply brief. Her counsel did not agree with it during oral argument.

And by the time Regions’s counsel got to oral argument, Regions argued—over no

claim to the contrary—that Lisa had abandoned the Periwinkle Loan Claim. 6 So on

appeal, no one ever argued in favor of Lisa and Periwinkle’s position on the

Periwinkle Loan Claim.

To recap, Lisa never argued in her opening brief that she had standing as a

guarantor to challenge the loan made to Periwinkle. Regions raised that argument

in its opposition brief, but Lisa did not respond to it in her reply brief. Lisa’s counsel

did not raise the argument during oral argument. Regions’s counsel then argued that

6 See Oral Argument at 13:48 (“If you look at the counterclaim that was brought before the district court and what has been argued here in the briefs, it’s [a] completely different factual situation. They haven’t even advanced the right argument in our position. . . .”) (emphasis added), 18:02 (“[T]hey’re arguing that there was discrimination because when the Legal Outsource loan matured and Regions Bank said we can’t extend the maturity on this because Legal Outsource is defunct, it’s not credit-worthy, you need to provide an additional source of repayment collateral— something to that effect—they’re saying in the brief, which they never raised in front of Judge Magnuson, that that is the ECOA violation.”) (emphasis added). 42 Case: 17-11736 Date Filed: 08/28/2019 Page: 43 of 88

Lisa had abandoned this argument. And Lisa’s counsel never disputed this. It’s not

on appeal.

Perhaps for this reason, the Majority Opinion introduces the novel suggestion

that amici can decide what issues are before us. Maj. Op. at 31–32. Amici frequently

provide valuable insight to the court by “supplementing the efforts of private counsel

and by drawing the court’s attention to law that might otherwise escape

consideration[.]” Shoemaker v. City of Howell, 795 F.3d 553, 562 (6th Cir. 2015)

(quoting 3-28 Moore’s Manual—Federal Practice and Procedure § 28.84 (2014)).

We are grateful for their contribution. But we don’t let them select the issues. 7 See

Cellnet Commc’ns, Inc. v. F.C.C., 149 F.3d 429, 443 (6th Cir. 1998) (“To the extent

that the amicus raises issues or make[s] arguments that exceed those properly raised

by the parties, we may not consider such issues.”).

7 And besides, the Majority Opinion is wrong when it suggests that the amicus briefs support its conclusion that Appellants raised the ECOA standing issue in the context of the Periwinkle Loan claim. See Maj. Op. at 31–32. On the contrary, the banking associations’ amicus brief plainly understood Appellants to have raised the ECOA standing issue as it relates to only the Legal Outsource Loan Claim on appeal. Their brief describes the issue Appellants raise as follows: “Appellants incorrectly argue that the Equal Credit Opportunity Act affords ‘Lisa Phoenix and Perwinkle [sic] [Partners, LLC]’ a claim that Regions [Bank] required them to sign for and collateralize her husband’s business debts[.]” Bankers’ Br. at 10 (emphasis added) (alterations in original). Clearly, this pertains to only the Legal Outsource Loan Claim on appeal. It does not reference the Periwinkle Loan Claim. To be sure, the Bankers briefed the issue of whether a guarantor has standing, but according to their own words, they did so in the context of the Legal Outsource Loan Claim because that’s what they understood Appellants to argue in their brief. The Bankers obviously did not understand Appellants to raise the guarantor-standing issue as it relates to the Periwinkle Loan Claim. For good reason: on appeal, Appellants never argued that issue in the context of the Periwinkle Loan Claim. As for the other amicus brief, submitted by the Consumer Financial Protection Bureau, it focused on what it disagreed with in the district court’s opinion, as opposed to characterizing Appellants’ argument on appeal. 43 Case: 17-11736 Date Filed: 08/28/2019 Page: 44 of 88

Other courts have identified only very limited circumstances warranting a

court’s decision to overlook abandonment of an argument or issue and decide it,

anyway. None applies here.

In Silber v. United States, 370 U.S. 717, 717–18 (1962), for example, the

Supreme Court explained that when a party fails to raise an issue on appeal, courts

“[i]n exceptional circumstances, especially in criminal cases, . . .in the public

interest, may, of their own motion, notice errors to which no exception has been

taken, if the errors are obvious, or if they otherwise seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” (emphasis added) (citation

and quotation marks omitted). The Majority Opinion has offered no reason why this

case presents “exceptional circumstances,” and I am aware of no such reason. This

is also not a criminal case. Nor, in light of the fact that the Supreme Court recently

split 4-4 on the issue the Majority insists on addressing today, Hawkins, 136 S. Ct.

at 1072, and other circuits are similarly split two to one, can we say the answer to

the unraised issue is “obvious.” And finally, since the Majority Opinion’s answer

to the unraised issue results in precisely the same outcome as declaring the issue

abandoned—either way, the district court is affirmed—I can see no way that the

unraised issue “seriously affect[s]”—or, for that matter, affects at all—“the fairness,

integrity, or public reputation of judicial proceedings.”

44 Case: 17-11736 Date Filed: 08/28/2019 Page: 45 of 88

Other Circuits have also identified extremely limited circumstances in which

it might be appropriate for an appellate court to address an issue that no party raised.

These other Circuits have reasoned that a court may determine an unraised issue

where doing so would “enhanc[e] the efficiency of the decisionmaking process and

the conservation of scarce judicial resources,” and “remand ‘would further postpone

the ultimate resolution of’ the petitioner’s underlying claim for relief.” United States

v. Holness, 706 F.3d 579, 592 (4th Cir. 2013) (quoting LaBruna v. U.S. Marshal,

665 F.2d 439, 442 (2d Cir. 1981)). Similarly, the Seventh Circuit has concluded it

is appropriate to review an unraised issue only when these controlling factors

decidedly favor review: the size and complexity of the record, the certainty of the

resolution of the issue, and the need for “protracted, costly, and ultimately futile

proceedings in the district court,” in the absence of addressing the forfeited issue.

United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991).

Of course, not one of these circumstances describes this case. The record here

is not particularly lengthy or complex; resolution of the issue here, as I have noted,

is not cut and dry; and declining to reach the issue would not “result in protracted,

costly, and ultimately futile proceedings in the district court.” Id. Whether we

address the unraised issue or not, the result is the same: affirmance of the district

court’s order granting summary judgment to Regions. In fact, ironically, deciding

the unraised issue here makes today’s opinion unnecessarily lengthy and complex.

45 Case: 17-11736 Date Filed: 08/28/2019 Page: 46 of 88

So it should go without saying that this case does not present an appropriate vehicle

to justify a wholly unnecessary journey into the deeply debated question of whether

“guarantors” can be “applicants,” when the claim as resolved by the Majority

Opinion should be dismissed, regardless, since it was clearly abandoned.

Apparently recognizing the inadvisability of determining an issue no

Appellant invoked and failing to convince even itself that Appellants have raised the

Periwinkle Loan Claim on appeal, the Majority Opinion tries a different tack and

insists that Appellants’ Legal Outsource Loan Claim arguments “logically . . . can

relate only” to Counterclaims 11 or 12 (Lisa’s individual claim as a guarantor of the

Periwinkle loan). Maj. Op. at 28. At the risk of repetition but for the avoidance of

doubt, I offer a simpler explanation: on appeal, Lisa, for the first time in this case,

has raised a new claim about Regions’s attempt to make her (through Periwinkle)

guaranty the Legal Outsource Loan. She did not plead the claim in her

Counterclaims—including Counterclaims 11 or 12—and she did not otherwise

sufficiently develop it in the district court.

Perhaps it was “nonsensical” for Lisa to raise the Legal Outsource Loan Claim

at this point, Maj. Op. at 33, but that was her prerogative, not ours. Our task here is

to “decide . . . [the] questions presented by the parties.” Greenlaw v. United States,

554 U.S. 237, 244 (2008) (citation and quotation marks omitted). Our responsibility

to construe briefs “liberally” does not grant us permission to recast what was

46 Case: 17-11736 Date Filed: 08/28/2019 Page: 47 of 88

appealed simply because we want to reach an issue that the parties left behind. See

Nat’l Aeronautics and Space Admin. v. Nelson, 562 U.S. 134, 147 n.10 (2011) (“The

premise of our adversarial system is that appellate courts do not sit as self-directed

boards of legal inquiry and research, but essentially as arbiters of legal questions

presented and argued by the parties before them.”) (quoting Carducci v. Regan, 714

F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.)); Greenlaw, 554

U.S. at 243 (“In our adversary system . . . we rely on the parties to frame the issues

for decision and assign to courts the role of neutral arbiter of matters the parties

present.”).

As for the Legal Outsource Loan Claim, this is hardly the first time a litigant

has tried to raise a “wholly novel claim” for the first time on appeal. Maj. Op. at 33.

When that happens, it has long been this Court’s practice to refuse to consider the

issue. See In re Holywell Corp., 874 F.2d 780, 782 (11th Cir. 1989) (refusing to

consider claim that was not presented to the district court); Troxler v. Owens-Illinois,

Inc., 717 F.2d 530, 532 (11th Cir. 1983) (refusing to consider affirmative defense

raised for the first time on appeal); see also Access Now, 385 F.3d at 1331 (“[W]e

review claims of judicial error in the trial courts. If we were to regularly address

questions—particularly fact-bound issues—that districts court never had a chance to

examine, we would not only waste our resources, but also deviate from the essential

nature, purpose, and competence of an appellate court.”).

47 Case: 17-11736 Date Filed: 08/28/2019 Page: 48 of 88

Because Lisa raises the Legal Outsource Loan Claim for the first time on

appeal, the better course would be to forgo considering it at this late hour. Access

Now, 385 F.3d at 1330–35. We can, however, make exceptions to our general

prohibition against considering new claims for the first time on appeal if one of our

limited exceptions to the rule applies. 8 See id. at 1332. The only exception that

could even possibly pertain here allows us to evaluate a new issue for the first time

on appeal “if that issue presents significant questions of general impact or of great

public concern.” Id. at 1332.

Perhaps we could rely on that exception to consider whether guarantors are

considered “applicants” under the ECOA in the context of Lisa’s contentions arising

out of the Legal Outsource Loan Claim. But if we are going to do that, we should

say so and explain why the exception applies.

Unfortunately, though, that’s not what the Majority Opinion does. Instead,

inexplicably, it simply considers whether guarantors have standing under the ECOA,

in the context of “resolving” the Periwinkle Loan Claim, ignoring Lisa’s

abandonment of that claim on appeal and Regions’s argument that Lisa has forsaken

that claim for good by not appealing it. Because Lisa opted not to present the

8 We have explained that we may consider an issue raised for the first time on appeal (1) “if it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice”; (2) if “the appellant raises an objection to an order which he had no opportunity to raise at the district court level”; (3) if “the interest of substantial justice is at stake”; (4) if “the proper resolution is beyond any doubt”; or (5) “if that issue presents significant questions of general impact or of great public concern.” Access Now, 385 F.3d at 1332. 48 Case: 17-11736 Date Filed: 08/28/2019 Page: 49 of 88

Periwinkle Loan Claim to us on appeal, it should be clear that that claim leaves

nothing to be “resolved.”

II.

Nevertheless, because the Majority Opinion purports to improperly narrow

the ECOA, I must explain why its reasoning is wrong. I begin by setting forth the

framework we apply to the question the Majority Opinion has chosen to address:

whether guarantors are included within the meaning of “applicants” under the

ECOA.

Since we are construing the meaning of a statute, we must start with the text.

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). We consider whether the text

plainly and unambiguously answers the particular question at issue. Id. In assessing

the text, we keep in mind that “[a] word in a statute may or may not extend to the

outer limits of its definitional possibilities.” Dolan v. U.S. Postal Serv., 546 U.S.

481, 486 (2006). To determine the proper meaning, we evaluate “the whole statutory

text, considering the purpose and context of the statute, and consult[] any precedents

or authorities that inform the analysis.” Id.; see also Crandon v. United States, 494

U.S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only

to the particular statutory language, but to the design of the statute as a whole and to

its object and policy.”). And when a statute is remedial in nature, we apply the well-

established rule that requires us to construe the text “broadly to effectuate its

49 Case: 17-11736 Date Filed: 08/28/2019 Page: 50 of 88

purposes.” Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); Stewart v. Kahn, 78

U.S. 493, 504 (1870); SEC v. Levin, 849 F.3d 995, 1001 (11th Cir. 2017) (observing

that remedial legislation “is entitled to a broad construction”) (citations omitted). If,

after we apply these rules, the text is unambiguous, yielding but a single possible

answer to the question at issue, our analysis ends. For we “must give effect to the

unambiguously expressed intent of Congress.” Cadet v. Bulger, 377 F.3d 1173,

1185 (11th Cir. 2004) (citation and quotation marks omitted).

But if the text does not unambiguously answer the precise question we are

examining, we must conduct an analysis under Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, we determine whether the

agency charged with filling in the ECOA’s gaps—originally the Federal Reserve

Board but beginning in 2010, the Consumer Financial Protection Bureau 9—has

established a permissible answer to our question. The agency’s interpretation is

permissible if it is “reasonable.” Id. at 844. And we must defer to an agency’s

reasonable construction of a statute for which that agency enjoys rulemaking

authority. Id. If, on the other hand, the agency’s interpretation of the statute as it

9 In 2010, Congress transferred the Federal Reserve’s rulemaking authority to the Consumer Financial Protection Bureau. 15 U.S.C. 1691b(a). The Bureau has since repromulgated Regulation B without making material changes. 12 C.F.R. Pt. 1002 & Supp. I; see Equal Credit Opportunity (Regulation B), 76 Fed. Reg. 79,442 (Dec. 21, 2011). Because Regulation B has remained materially the same since its original promulgation by the Federal Reserve, to avoid confusion, for the remainder of this opinion, I refer solely to the Federal Reserve as the administering body. 50 Case: 17-11736 Date Filed: 08/28/2019 Page: 51 of 88

concerns the precise issue in controversy is “arbitrary, capricious, or manifestly

contrary to the statute,” the agency’s answer is entitled to no weight. Id.

With this framework in mind, I consider whether a guarantor qualifies as an

“applicant” under the ECOA. I divide my discussion into three parts. In accordance

with the Supreme Court’s guidance for construing statutory text, see Dolan, 546 U.S.

at 486, and because the ECOA has “broad remedial goals,” Barney v. Holzer Clinic,

Ltd., 110 F.3d 1207, 1211 n.6 (6th Cir. 1997), Section A reviews the background,

purpose, and broader context of the ECOA as a whole. Cf. Zuni Pub. Sch. Dist.

No.89 v. Dep’t of Educ., 550 U.S. 81, 89–90 (2007) (departing from usual order of

analysis for purposes of exposition). Section B examines the statutory text. And

Section C considers the Federal Reserve’s approach to answering the question of

whether a guarantor qualifies as an “applicant” under the ECOA.

A.

Women were integral to the United States’s World War II triumph through,

among other ways, their efforts in the workforce. 10 Buoyed by their experiences

during the War, women helped detonate America’s historic Post-War economic

boom by flocking to workplaces in unprecedented droves.11

10 Jone Johnson Lewis, Women and World War II: Women at Work, ThoughtCo, Mar. 5, 2019, available at https://www.thoughtco.com/world-war-ii-women-at-work-3530690 (last visited Aug. 27, 2019). 11 Howard N. Fullerton, Jr., Labor Force Participation: 75 Years of Change, 1950-98 and 1998-2025, Monthly Lab. Rev. 3 (Dec. 1999), available at http://www.bls.gov/mlr/1999/12/ art1full.pdf (last visited Aug. 27, 2019). 51 Case: 17-11736 Date Filed: 08/28/2019 Page: 52 of 88

But significant impediments to women’s economic parity nonetheless

persisted. A particularly important obstacle involved credit availability: creditors

would not lend to women so they could start their own businesses or buy their own

homes because creditors refused to consider women’s applications on par with

men’s. And the increasing necessity of credit to achieve economic security made

this impediment particularly restrictive.12

That women faced rampant discrimination in accessing credit was no secret.

In fact, in the early 1970s, the then-President of the American Bankers Association

openly admitted that banks “do in fact discriminate against women when it comes

to granting credit.”13 And in 1972, the National Commission on Consumer Finance

found five systemic patterns of gender-based credit discrimination: (1) single

women had more trouble obtaining credit than single men; (2) creditors required

women to reapply for credit upon marriage, usually in the husband’s name; (3)

creditors declined to extend credit to a married woman in her own name; (4) creditors

often refused to count the wife’s income when the couple applied for credit; and (5)

women who divorced or widowed had trouble reestablishing credit since the

12 Dubravka Ritter, Do We Still Need the Equal Credit Opportunity Act?, Fed. Res. Bank of Phila. (Sept. 2012), available at https://www.philadelphiafed.org/-/media/consumer-finance- institute/payment-cards-center/publications/discussion-papers/2012/d-2012-equal-credit- opportunity-act.pdf?la=en (last visited Aug. 27, 2019). 13 Susan Smith Blakely, Credit Opportunity for Women: The ECOA and Its Effects, 1981 Wis. L. Rev. 655, 657 (1981) (citation omitted). 52 Case: 17-11736 Date Filed: 08/28/2019 Page: 53 of 88

accounts were in the husband’s name. Nat’l Comm. On Consumer Fin., Consumer

Credit in the United States, 152–53 (1972).

So before marriage, regardless of a woman’s wealth accumulation, creditors

viewed women as poor credits risks because they considered them “inherently

unstable and incapable of handling [their] own affairs . . . and likely to change [their]

marital status.” Gail R. Reizenstein, A Fresh Look at the Equal Credit Opportunity

Act, 14 Akron L. Rev. 215, 226 (1980) (citation omitted) (“Fresh Look”). Many

creditors even demanded that women disclose the type of birth control they relied

upon. Credit Equality Comes to Women: An Analysis of the Equal Credit

Opportunity Act, 13 San Diego L. Rev. 960, 965 (1976). Some creditors took it yet

a step further by making women choose between babies and credit by conditioning

a woman’s credit approval on her “swear . . . that [she] would not endanger [her]

ability to repay [her] debt[] by having children.” Id. (citations omitted).

Getting married usually didn’t improve women’s lots in credit markets

because lenders often folded whatever credit women had before marriage into their

husbands’ credit. For instance, after winning multiple Wimbledon championships

and supporting her household with those earnings, Billie Jean King could not get a

credit card in her own name; rather, she had to apply in the name of her husband,

who at that time, was an unemployed law student. Gail Collins, When Everything

Changed: The Amazing Journey of American Women from 1960 to the Present, 182

53 Case: 17-11736 Date Filed: 08/28/2019 Page: 54 of 88

(Little, Brown & Co. ed., 2014). And bankers told the mayor of Davenport, Iowa,

that they would give her a credit card only if her husband would sign for it. Id.

This state of affairs created a paradox for women: they couldn’t have their

own credit during marriage, and if they divorced or became widowed, lenders would

deny their applications because they lacked established credit of their own.

Economic Problems of Women: Hearings Before the Joint Economic Committee,

93d Cong. 152, 1st Sess. (1973) (“The irony of these credit practices is that when a

woman is divorced, separated, or widowed she often is denied credit by these same

credit companies on the grounds that she has no established credit record.”)

(Statement of U.S. Rep. Griffiths, Member, Joint Econ. Comm.) (“Economic

Problems”). And many women started post-marriage life even worse off than

having no credit because lenders insisted on tying women’s financial fortunes to

those of their ex-husbands, and their ex-husbands’ delinquent accounts often

detracted from the women’s credit scores even after the marriage ended. See Fresh

Look at 225.

This atmosphere evolved out of the wrong 14 but “widely-held” presumptions

that “probability of pregnancy, the subsequent termination of employment upon

14 Despite higher levels of unemployment than men at the time, women were, in fact, better credit risks than men, studies showed. A study commissioned in 1964 examined the possible correlation between consumer credit risk and sex. It found that out of 8,795 credit accounts established for single men, 176 defaulted (2%); while among 4,337 accounts established for single women, only 33 defaulted (0.75%). See Sharon Thornton, The Not-So-Equal Credit Opportunity Act, 5 Orange Cty. B.J. 363, 366 (1978). 54 Case: 17-11736 Date Filed: 08/28/2019 Page: 55 of 88

childbirth, and the general instability and inability of women to control their personal

affairs (especially single and divorced women)” made women bad bets. Fresh Look

at 216 (citation omitted).

Eventually, Congress began to recognize the inequities of tethering women’s

economic prospects to their husbands and the risks this discrimination posed to the

new economy. So in the early 1970s, Congress addressed the problem.

Testimony before Congress established that at that time, to obtain credit,

women needed a higher salary and more stable employment than men. See Senate

Comm. On Banking, Housing & Urban Affairs, S. Rep. No. 93–278, 93rd Cong., 1st

Sess. 16–17 (1973) (“Senate Rpt.”); see also Economic Problems at 197; Credit

Discrimination: Hearings Before the Subcomm. on Consumer Affairs of the House

Comm. on Banking and Currency on H.R. 14856 and H.R. 14908, 93rd Cong., 2d

Sess. 315, 636 (1974).15 Creditors operated under the assumption that women were

economically dependent upon their husbands, even if in reality, the wife’s earnings

outpaced her husband’s. See Senate Rpt. at 17–18. Creditors also usually altered a

wife’s credit rating to match her husband’s and frequently refused to give married

women separate accounts. See id. at 17.

15 During the hearings, one person relayed that an employee of a credit institution had stated that it was “un-American to count a woman’s income and that the only way a woman’s income could be counted would be if she were to have a hysterectomy.” Economic Problems at 192 (quotation marks omitted). 55 Case: 17-11736 Date Filed: 08/28/2019 Page: 56 of 88

The congressional hearings culminated in the Senate Subcommittee’s report

that found thirteen different “widespread” ways creditors discriminated on the basis

of sex and marital status:

(1) Women were held to different standards than men in obtaining credit;

(2) Creditors generally required a woman upon marriage to reapply for credit;

(3) Creditors often refused to extend credit to a married woman in her own name;

(4) Creditors were usually unwilling to consider the wife’s income when a married couple applied for credit;

(5) Women who had separated had a particularly difficult time, since the accounts may still have been in the husband’s name;

(6) Creditors arbitrarily refused to consider alimony and child support as a valid source of income;

(7) Creditors applied stricter standards to married applicants where the wife was the high earner;

(8) Creditors used information about women’s birth-control practices in evaluating credit applications;

(9) Creditors used information concerning the creditworthiness of a spouse where an otherwise-creditworthy married person applied for credit;

(10) Creditors refused to issue separate accounts to married persons;

(11) Creditors considered women dependent upon their husbands even if the women were employed;

56 Case: 17-11736 Date Filed: 08/28/2019 Page: 57 of 88

(12) Creditors used credit-scoring systems that applied different values depending on sex or marital status; and

(13) Creditors altered women’s credit ratings to match their husbands’ credit ratings. Senate Rpt. at 16–17.

Against this background and in light of these findings, Congress enacted the

ECOA in 1974. In doing so, Congress concluded sex and marital status “are, and

must be, irrelevant to a credit judgment.” Senate Rep. (Banking Hous. and Urban

Affairs Comm.), S. Rep. No. 94 – 589, 94th Cong., 2d Sess. 3 (1976), reprinted in

1976 U.S.C.C.A.N. 403, 405; see also 15 U.S.C. § 1691 (articulating the ECOA’s

prohibition of credit discrimination based on gender or marital status).

So it is not surprising that the ECOA makes it “unlawful for any creditor to

discriminate against any applicant, with respect to any aspect of a credit transaction

[] on the basis of . . . sex or marital status. . . .” 15 U.S.C. § 1691(a)(1). 16 Indeed,

the ECOA represents Congress’s resolve to “eradicate credit discrimination waged

against women, especially married women whom creditors traditionally refused to

consider for individual credit,” Anderson v. United Fin. Co., 666 F.2d 1274, 1277

(9th Cir. 1982), and “to prevent loans from being conditioned automatically on the

16 In 1976, Congress extended the ECOA to bar creditors from discriminating on the basis of race, color, religion and national origin. See 15 U.S.C. § 1691(a); Ritter, supra, at 2–3. 57 Case: 17-11736 Date Filed: 08/28/2019 Page: 58 of 88

securing of the signature of the non-borrowing spouse,” Mayes v. Chrysler Credit

Corp., 167 F.3d 675, 676 (1st Cir. 1999).

Against the crazy quilt of discriminatory practices creditors were using at that

time, Congress declined to spell out each methodology or action that amounts to

impermissible discrimination. Instead, Congress rested on the ECOA’s broad

language and “entrust[ed] its construction to an agency with the necessary

experience and resources to monitor its operation.” Mourning v. Family Publ’ns

Serv., Inc., 411 U.S. 356, 365 (1973). Specifically, Congress delegated to the

Federal Reserve the task of adopting “classifications, differentiation, or other

provision[s],” that were, in the Federal Reserve’s judgment, “necessary or proper to

effectuate the [ECOA’s] purposes. . . .” 15 U.S.C. § 1691b(a).

Shortly after Congress enacted the ECOA, the Federal Reserve took the baton

from Congress and promulgated Regulation B to implement Congress’s directive to

combat sex- and marital-status-based credit discrimination. 12 C.F.R. § 202.1(b)

(stating that the purpose of Regulation B is “to promote the availability of credit to

all creditworthy applicants without regard to . . . sex [or] marital status. . . .”).

Included within Regulation B is the Spousal Guaranty Rule, which generally

prohibits creditors from treating married people differently by requiring spouses to

assume liability for each other’s debt obligations. 12 C.F.R. 202.7(d); Equal Credit

Opportunity Final Rulemaking, 40 Fed. Reg. 49,308–09 (Oct. 22, 1975). Therefore,

58 Case: 17-11736 Date Filed: 08/28/2019 Page: 59 of 88

ever since 1977, Regulation B has prohibited creditors from obligating an individual

to guaranty her spouse’s debts.

Some courts, though, interpreted Regulation B to mean that when a creditor

violated the Spousal Guaranty Rule, the only “applicant” who suffered

discrimination was the primary borrower, not the spouse who guaranteed the loan.

See, e.g., Morse v. Mut. Fed. Sav. & Loan Ass’n of Whitman, 536 F. Supp. 1271,

1278 (D. Mass. 1982). The Federal Reserve recognized that this restrictive reading

thwarted one of the purposes of the ECOA—ensuring access to an independent

credit profile by detangling spouses’ credit—since the guarantor spouse could be

saddled with her husband’s bad debt with no recourse under the ECOA.

So in 1985, the Federal Reserve expressly construed the ECOA’s definition

of “applicant”—“any person who applies to a creditor directly for an extension,

renewal, or continuation of credit, or applies to a creditor indirectly by use of an

existing credit plan for an amount exceeding a previously established credit limit,”

15 U.S.C. § 1691a(b)—to include “guarantors, sureties, endorsers, and similar

parties” “[f]or purposes of” the Spousal Guaranty Rule. 12 C.F.R. 202.2(e). In

doing so, the Federal Reserve emphasized that it was not imposing any new

obligations, since in accordance with the ECOA, Regulation B had long prohibited

creditors from requiring a guaranty from a borrower’s spouse. Rather, the Federal

Reserve explained, it was just recognizing that the guarantor spouse also has

59 Case: 17-11736 Date Filed: 08/28/2019 Page: 60 of 88

standing when the creditor straps the spouses’ credit fortunes together. Equal Credit

Opportunity; Revision of Regulation B; Official Staff Commentary, 50 Fed. Reg.

48,018 (Nov. 20, 1985). 17

B.

We begin our analysis of whether the ECOA includes guarantors within the

definition of “applicants” by evaluating the statutory text. The ECOA makes it

“unlawful for any creditor to discriminate against any applicant, with respect to any

aspect of a credit transaction [] on the basis of . . . marital status. . . .” 15 U.S.C. §

1691(a)(1) (emphasis added). In turn, the ECOA defines “applicant” as “any person

who applies to a creditor directly for an extension, renewal, or continuation of credit,

or applies to a creditor indirectly by use of an existing credit plan for an amount

exceeding a previously established credit limit.” 15 U.S.C. § 1691a(b) (emphasis

Two aspects of this text immediately stand out.

First, Congress employed the word “any” four times in these two sentences.

The Supreme Court has explained that “the word ‘any’ has an expansive meaning.”

United States v. Gonzales, 520 U.S. 1, 5 (1997) (citation omitted). The Majority

17 The Federal Reserve made Regulation B firm but flexible. If a party is needed to support the loan request because the potential debtor husband’s credit is insufficient, the wife can guaranty the loan. Regulation B just bars lenders from “requir[ing] that the spouse be the additional party.” 12 C.F.R. 202.7(d)(5). 60 Case: 17-11736 Date Filed: 08/28/2019 Page: 61 of 88

Opinion is correct that the word “any” does not change the definition of the word it

modifies. Maj. Op. at 18–19. But when that word appears repeatedly over just a

couple of sentences—here, four times in two sentences—“it begins to seem that

Congress meant the statute to have expansive reach.” See United States v. Clintwood

Elkhorn Mining Co., 553 U.S. 1, 7 (2008). 18

This would be true for any statutory provision that abundantly uses the word

“any,” but it is especially so when dealing with remedial legislation. Where

Congress uses the term “any” with a “lack of [accompanying] restrictive language,”

the Supreme Court has instructed us to “refuse[] to engraft artificial limitations” that

curb the “expansive remedial purpose[s]” connoted by such language. Blue Shield

of Va. v. McCready, 457 U.S. 465, 472 (1982); see id. (broadly construing “[a]ny

person who shall be injured in his business or property by reason of anything

forbidden in the antitrust laws”). So, for example, the text’s prohibition against

marital-status discrimination “with respect to any aspect of a credit transaction,” 15

U.S.C. § 1691(a)(1) (emphasis added), purports to preclude marital-status

discrimination in all aspects of credit transactions, including against guarantors.

18 See also Dennis v. Higgins, 498 U.S. 439, 443 (1991) (“A broad construction of § 1983 is compelled by the statutory language, which speaks of deprivations of ‘any rights, privileges, or immunities secured by the Constitution and laws.’ Accordingly, we have repeatedly held that the coverage of [§ 1983] must be broadly construed.”) (citations and quotation marks omitted). 61 Case: 17-11736 Date Filed: 08/28/2019 Page: 62 of 88

Nevertheless, and second, the statutory provisions do not expressly answer the

key question at issue here: must the applicant request credit for herself or may she

request it for somebody else? As the Sixth Circuit has noted, “the applicant and the

debtor are not always the same person.” RL BB Acquisition, LLC v. Bridgemill

Commons Dev. Grp., LLC, 754 F.3d 380, 385 (6th Cir. 2014). And the Majority

Opinion’s listed common dictionary definitions of “apply” do not limit applicants to

only the proposed debtor, because they do not foreclose the scenario where an

applicant makes a request for credit on someone else’s behalf.

Similarly, both the Sixth and Eighth Circuits, in construing the text at issue,

have relied on common dictionary definitions of “apply” as meaning “to make an

appeal or request especially formally and often in writing and usually for something

of benefit to oneself.” Hawkins, 761 F.3d at 941 (quoting Webster’s Third New Int’l

Dictionary at 105 (2002) (quotation marks and alterations omitted) (emphasis

added); RL BB Acquisition, 754 F.3d at 385 (quoting Webster’s Third New Int’l

Dictionary at 105 (1993) (cleaned up)); see also Webster’s Third New Int’l

Dictionary at 105 (1961) (same definition, cleaned up). Obviously, if something is

“usually for something of benefit to oneself,” it must sometimes be for something

of benefit to another.

So we must consider whether a guarantor may ever reasonably and naturally

be viewed as requesting “something of benefit” to another—that is, credit for the

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benefit of the proposed debtor. As it turns out, under the plain meaning of

“guarantor,” she may.

As Corbin on Contracts explains, “In most cases of guaranty contracts, the

offer comes from the guarantor requesting the giving of credit to a principal debtor.

. . .” See Timothy Murray, Corbin on Contracts § 3.14, at 467 (rev. ed. 2018). 19 In

fact, a guaranty is typically enforceable only because, in exchange for the creditor’s

promise to extend credit to the debtor, the guarantor promises to repay the loan if the

primary debtor defaults. See Restatement (Second) of Contracts § 71(2) (1981).

Thus, guaranty contracts would be unenforceable absent the exchange of

consideration by the guarantor—a promise to repay—and the creditor—the

fulfillment of the guarantor’s “application” that it lends to the debtor. See

Restatement (Third) of Suretyship and Guaranty § 9, cmt. a (1996); Joseph M.

Perillo, Corbin on Corbin § 9.4, at 252–253 (rev. ed. 1996); see also United States

v. Burgreen, 591 F.2d 291, 294 (5th Cir. 1979) (finding that guaranty was supported

by consideration through the loan to the primary borrower).

The Majority Opinion charges that this definition of “apply” falls outside the

word’s natural meaning. Maj. Op. at 20. But there are three problems with the

Majority Opinion’s position.

19 Additionally, other banking regulations provide that guarantors request and receive extensions of credit. See, e.g., 12 C.F.R. 215.3(a)(4). 63 Case: 17-11736 Date Filed: 08/28/2019 Page: 64 of 88

First, in support of its argument, the Majority Opinion inexplicably invites

readers to consider an incongruous hypothetical, arguing that parents who seek to

bribe their daughter’s way into college by offering to “make a large gift if their

daughter is admitted” are not “applicants.” Maj. Op. at 13. I agree. But nor are they

analogous to guarantors. Unlike the parents in the Majority Opinion’s hypothetical,

who can obtain admission for their daughter only by paying a bribe to the college, a

guarantor does not bribe or otherwise pay the creditor for credit to be extended to

another. And if the eventual debtor pays back the credit, the guarantor will never

pay anything. So the Majority Opinion’s efforts to explain in tangible terms why a

guarantor cannot fall within the meaning of “applicant” fail.

Second, none of the many definitions of the word “apply” that the Majority

Opinion cites excludes the interpretation that the application was for someone else.

Maj. Op. at 10–11. And that is significant to our analysis. In Smith v. United States,

508 U.S. 223, 225 (1993), for example, the Supreme Court had to determine whether

the exchange of a gun for narcotics amounted to the “use” of a firearm “during and

in relation to . . . [a] drug trafficking crime,” within the meaning of 18 U.S.C. §

924(c)(1). The Court rejected the petitioner’s request to apply only the limited and

most common meaning of the phrase. Id. at 229. Rather, the Court determined that

trading a firearm for drugs also qualified as “use” of the firearm under the statute,

explaining, “It is one thing to say that the ordinary meaning of ‘uses a firearm’

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includes using a firearm as a weapon, since that is the intended purpose of a firearm

and the example of ‘use’ that most immediately comes to mind. But it is quite

another to conclude that, as a result, the phrase also excludes any other use.” Id.

Applying Smith, we must conclude that the availability of a frequently used

definition of “applicant”—one who seeks credit for herself—does not necessarily

negate a less-common definition—one who seeks credit for others. That is so

because the definitions of “applicant” do not exclude use of the word to refer to

guarantors.

And third, the ECOA is a remedial statute that we must construe “broad[ly]”

to effectuate its remedial goals. Barney, 110 F.3d at 1211 n.6; see also Levin, 849

F.3d at 1001 (observing that remedial legislation “is entitled to a broad

construction”); Morante-Navarro v. T&Y Pine Straw, Inc., 350 F.3d 1163, 1166

(11th Cir. 2003) (construing the remedial Migrant and Seasonal Agricultural

Workers Protection Act “broadly to effect its . . . purpose”). Our task cannot begin

and end with a definitional popularity contest. If it did, there would be no way to

construe remedial legislation “broadly” to effectuate its purpose, because all words

in all statutes would be read as conveying only a single potential meaning.

Notably, the Majority Opinion makes no attempt whatsoever to reconcile the

“familiar canon of statutory construction that remedial legislation should be

construed broadly to effectuate its purposes,” Tcherepnin, 389 U.S. at 336, or the

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caveat that “[a] word in a statute may or may not extend to the outer limits of its

definitional possibilities,” Dolan, 546 U.S. at 486, with the Majority Opinion’s the-

words-can-have-only-a-single-meaning mantra. 20 Of course, if either or both of

these doctrines apply, the Majority Opinion cannot be right.

So instead of responding substantively, the Majority Opinion asserts the

Supreme Court has “rejected applying” the remedial-purpose doctrine. Maj. Op. at

21. And it has no answer at all to the Supreme Court’s instruction in Dolan.

But while the Majority Opinion pulls colorful language from context to

suggest that the Supreme Court has determined that the remedial-purpose doctrine

is no longer good law, there’s a problem with this response: the Supreme Court has

not rejected the doctrine. Rather, the Court concluded the doctrine was simply

inapplicable in the cases the Majority Opinion cites.

For example, there were multiple reasons why the doctrine would not apply

to the Comprehensive Environmental Response, Compensation, and Liability Act,

the statute at issue in CTS Corp. v. Waldburger, 573 U.S. 1 (2014): (1) the Court

20 As Judge William Pryor explained last year, “the text must be construed as a whole. . . . Strict construction sequesters the words of a text from their context. That is one of the reasons why strict construction is foolish.” Pictet Overseas Inc. v. Helvetia Trust, 905 F.3d 1183, 1190 (11th Cir. 2018) (William Pryor, J., concurring) (cleaned up); see also Deal v. United States, 508 U.S. 129, 132 (1993) superseded by statute as stated in United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019) (it is a “fundamental principle of statutory construction (and indeed, of language itself), that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”). So we ought not to pluck words out of their context and define them narrowly just because a dictionary indicates that the narrower meaning is the more common one. 66 Case: 17-11736 Date Filed: 08/28/2019 Page: 67 of 88

held that the statute “d[id] not provide a complete remedial framework,” and so it

was not necessarily a remedial statute, see id. at 18; (2) even if it was a remedial

statute, the statute’s legislative history supported a construction of the statutory text

at odds with the remedial purpose, see id. at 14–17; and (3) the statute, which would

trump state law if the Court adopted the respondents’ argument, was subject to a

competing presumption against preemption, see id. at 12.

Likewise, the respondents in Inyo County v. Paiute-Shoshone Indians of the

Bishop Community of the Bishop Colony, 538 U.S. 701 (2003), argued that the

Bishop Paiute Tribe should be considered a “person” under 42 U.S.C. § 1983, a

construction—according to respondents—that would be consistent with the law’s

remedial purpose. See Paiute-Shoshone Indians, 538 U.S. at 710. The Court

rejected this bid, holding that “Section 1983 was designed to secure private rights

against government encroachment, not to advance a sovereign’s prerogative to

withhold evidence relevant to a criminal investigation.” See id. at 711–12 (citation

omitted). So rather than rejecting the doctrine, the Court disagreed that the statute

was meant to remedy the harms that the respondents addressed.

Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158 (2007), is similarly

uninstructive here. Norfolk involved the Federal Employers’ Liability Act

(“FELA”), which makes railroads liable to their employees for injuries “resulting in

whole or in part from the negligence” of the railroad, 45 U.S.C. § 51. 549 U.S. at

67 Case: 17-11736 Date Filed: 08/28/2019 Page: 68 of 88

160. In that case, the Court considered whether the statute permitted different

standards of causation for railroad and employee contributory negligence. Id.

Although the Court recognized that FELA was “enacted to benefit railroad

employees” and that a more lenient standard of causation for employee contributory

negligence would favor employees, it held that FELA required application of a

single negligence standard, stating that FELA’s “remedial purpose [does not]

require[] us to interpret every uncertainty in the Act in favor of employees.” Id at

171. But what’s important for this case is that the Court decided that the “system of

comparative fault” would not “work” if “the basis of comparison [meaning the

standard for contributory negligence] [were not] the same.” Id. at 170, 171 (citations

omitted). In other words, the Court left open the possibility that the remedial-

purpose doctrine would apply in cases where the object of interpretation makes the

difference between accomplishing the statute’s central purposes at all and not.

This is just such a case. First, unlike the situation with FELA in Norfolk,

construing “applicant” to include guarantors under § 1691(a)(1) does not prevent the

ECOA’s mechanisms from working. And unlike whether the contributory

negligence standard is the same for employees and employers under the FELA—a

question that impacts only the amount of the recovery but not entitlement to

recovery—whether “applicant” encompasses guarantors under § 1691(a)(1) does not

involve just some random “uncertainty in the Act,” Norfolk, 549 U.S. at 171. Rather,

68 Case: 17-11736 Date Filed: 08/28/2019 Page: 69 of 88

the answer to that question determines whether the ECOA will effect one of its

central purposes at all—that is, whether the ECOA will allow spouses to disentangle

their credit, or whether it will permit lenders to require such entanglement.

The Majority Opinion’s reliance on Household Credit Servs., Inc. v. Pfennig,

541 U.S. 232 (2004), fares no better. In that case, the Supreme Court concluded that

the statutory language of the Truth in Lending Act was ambiguous on the question

at issue there, so it noted that the agency’s regulation answering the question was

“binding” unless, among other things, “manifestly contrary to the statute.” Id. at 242

(citation omitted). The Court then concluded that the regulation was “in no way

manifestly contrary” to the statute. Id.

As was the case with the statute in Household Credit, here, the ECOA is

ambiguous on the precise question at issue. And when we turn to the agency’s

interpretation—Regulation B—as in Household Credit, that regulation is not

“manifestly contrary to the statute.” Id. Rather, as in Household Credit, it furthers

one of the “primary goals” of the statute, see id. at 243, as I have explained.

Finally, turning to Director, Office of Workers’ Compensation Programs,

Department of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122

(1995), which the Majority Opinion suggests “ridiculed” the remedial-purpose

doctrine and rendered it no longer good law, Maj. Op. at 21 (citing Newport News,

514 U.S. at 135), that’s not an accurate description of that case. Rather, the Court

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ridiculed the petitioner’s attempt to rely on the doctrine in that case, when the Court

was not even analyzing a remedial statute. In fact, the Court discussed—at some

length—that the statute’s “goal” was not clear. See id. at 131. Not only did the

Court not invalidate the remedial-purpose doctrine, the Court recognized that the

principle of construing any statute broadly to achieve its purposes could be invoked

“in case of ambiguity,” id. at 135, which I submit is the case here. And finally, the

Court in Newport News went on to construe the statute at issue “as liberally as can

be.” Id. at 136.

But you don’t have to take it from me; you can take it from the Court itself.

Seven years after issuing Newport News, the Supreme Court unanimously applied

the remedial-purpose doctrine in S.E.C. v. Zandford, 535 U.S. 813, 819 (2002)

(“[W]e have explained that [Section 10(b) of the Securities Exchange Act] should

be construed not technically and restrictively, but flexibly to effectuate its remedial

purposes.”) (citation and internal quotation marks omitted).

Instead of addressing the substance of this argument on the remedial-purpose

doctrine and Dolan’s instruction that “[a] word in a statute may or may not extend

to the outer limits of its definitional possibilities,” 546 U.S. at 486, the Majority

Opinion accuses this dissent of engaging in “hornbook abuse of the whole-text

canon” and mischaracterizes my argument as “since the overall purpose of the statute

70 Case: 17-11736 Date Filed: 08/28/2019 Page: 71 of 88

is to achieve x, any interpretation of the text that limits the achieving of x must be

disfavored.” Maj. Op. at 20.

But it’s not that the Majority Opinion’s interpretation of “applicant” “limits

the achieving” of the ECOA’s purpose of disentangling spouses’ financial fortunes,

see Senate Rpt. at 16–17; 21 it’s that it is antithetical to that reason for the ECOA.

The guarantor spouse often suffers a unique economic injury that the primary

debtor spouse does not. Say the creditor refuses to extend the loan unless the wife

guarantees it, so the wife agrees to do so. But the husband—the direct debtor—may

have no complaints, since he received the loan he was after. And even if he did, he

may well not have economic damages to assert in a lawsuit. See, e.g., Mayes, 167

F.3d at 678 (“[The husband] has no claim for damages or injunctive relief under

ECOA for harm done to his wife. If anyone was injured by requiring [the wife] to

sign the guarantee, it was she and not [the husband], who after all received the loan

he had sought.”). Without the potential for redress, he would lack standing.

By contrast, the wife who guaranteed the loan may have a separate injury

stemming from the fact that her credit score is likely lower because she agreed to be

secondarily liable for the loan. See Mechel Glass, Equifax, Should I Co-Sign On a

Loan for a Family Member?, available https://blog.equifax.com/tag/credit-

21 See also Mayes, 167 F.3d at 676 (Congress also set out “to prevent loans from being conditioned automatically on the securing of the signature of the non-borrowing spouse.”). 71 Case: 17-11736 Date Filed: 08/28/2019 Page: 72 of 88

score/page/4/ (last visited Aug. 27, 2019). So she may have suffered an injury if she

sought credit and was unable to obtain it, or if any credit she did receive either was

more limited or bore a higher interest rate than it would have had she not been

required to guaranty her husband’s loan. Yet construing “applicants” to exclude

guarantors would mean nobody in this scenario would have standing to pursue the

creditor’s flagrant violation of the ECOA.

And worse yet, allowing lenders to, with impunity, require wives to guaranty

their husbands’ debts actually creates the same financial intertwinement problems

that arose when lenders demanded that women like Billie Jean King obtain their

husbands’ guaranties before lenders would extend credit to them. In both cases, the

wives’ credit is forever tied to the husbands’ credit fortunes.

As a result, guaranteeing the husband’s loan can “negatively impact [the

wife’s] credit report and creditworthiness,” since guaranteeing a loan shows up on

credit reports immediately. Glass, supra, at 26. And if the husband “miss[es]

payments or default[s] on the loan, [the wife’s] credit reports will show the

delinquencies,” ruining her credit history and ability to secure future credit.

TransUnion, The Benefits & Issues of Co-Signing a Loan, available at

http://www.transunion.com/personal-credit/credit-issues-bad-credit/cosigning-a-

loan.page (last visited Aug. 27, 2019).

72 Case: 17-11736 Date Filed: 08/28/2019 Page: 73 of 88

So far from “‘open[ing] vistas of liability’ that Congress did not envision,”

Maj. Op. at 24 (quoting Moran Foods, Inc. v. Mid-Atl. Market Dev. Co., LLC, 476

F.3d 436, 441 (7th Cir. 2007)), construing “applicants” to include guarantors

actually effectuates Congress’s goal of disentangling spouses’ credit. In contrast,

the interpretation the Majority Opinion and the Eighth Circuit in Hawkins offer

creates the very entanglement of spouses’ credit Congress sought to eradicate. That

Congress would have prohibited one form of enforced credit entanglement and

unworthiness only to allow another to fully replace it makes about as much sense as

ice-hockey cleats. See W. Air Lines, Inc. v. Bd. of Equalization, 480 U.S. 123, 133

(1987) (“[I]llogical results . . . argue strongly against the conclusion that Congress

intended” a particular statutory construction).

The Majority Opinion’s reliance on Judge Colloton’s Hawkins concurrence—

where Judge Colloton argued that the word “application” should have only one

meaning throughout the ECOA—is similarly misplaced. Maj. Op. at 14–16. I

understand Judge Colloton’s concern. After all, we “ordinarily assume[] that

identical words used in different parts of the same act are intended to have the same

meaning.” Utility Air Reg. Grp. v. E.P.A., 573 U.S. 302, 319-20 (2014) (citations

omitted). But that assumption is not absolute. It “readily yields whenever there is

such variation in the connection in which the words are used as reasonably to warrant

the conclusion that they were employed in different parts of the act with different

73 Case: 17-11736 Date Filed: 08/28/2019 Page: 74 of 88

intent.” Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also

Yates v. United States, 135 S. Ct. 1074, 1082 (2015) (“In law as in life . . . the same

words, placed in different contexts, sometimes mean different things.”). This is one

of those times, or else the ECOA ensures the existence of the very problem it seeks

to eliminate.

Even assuming some parts of the ECOA suggest—or even require—a narrow

interpretation of the word “applicant,” that does not mean that the term as used in 15

U.S.C. § 1691(a)(1) must be similarly construed, since “a characterization fitting in

certain contexts may be unsuitable in others.” See NationsBank of N.C., N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 262 (1995). For instance, to make his

point, Judge Colloton primarily invokes 15 U.S.C. § 1691(d), titled, “Reason for

adverse action; procedure applicable; ‘adverse action’ defined.” That subsection

articulates what happens when a lender denies or revokes credit to a debtor. It

therefore makes sense that it applies to the person who would have received or

actually received the loan.

Section 1691(a), on the other hand, is the statute’s vehicle for proscribing

discrimination on the basis of marital status. By both its terms and its function, it

has broader application than the provisions to which Judge Colloton points. Cf. Atl.

Cleaners, 286 U.S. at 435 (“A consideration of the history [of the ECOA] . . .

sanctions the conclusion that Congress meant to deal comprehensively and

74 Case: 17-11736 Date Filed: 08/28/2019 Page: 75 of 88

effectively with the evils resulting” from discrimination). Indeed, it directly effects

Congress’s purposes in enacting the ECOA in the first place—preventing credit

discrimination on the basis of marital status and allowing spouses to disentangle their

credit from one another. And its text, as I have noted, makes it applicable to “any

aspect” of a credit transaction.

That Judge Colton’s citations are exclusively to other provisions of 15 U.S.C.

§ 1691 does not change this fact. See Hawkins, 761 F.3d at 943–44 (Colloton, J.,

concurring). “Most words have different shades of meaning and consequently may

be variously construed, not only when they occur in different statutes, but when used

more than once in the same statute or even in the same section.” Envtl. Def. v. Duke

Energy Corp., 549 U.S. 561, 574 (2007) (emphasis added) (citation and alteration

omitted); accord Gen. Dynamics, 540 U.S. at 595-97 (“age” has different meanings

in 29 U.S.C. § 623(a) and § 623(f) of the Age Discrimination in Employment Act of

1967); Robinson, 519 U.S. at 342–43 (“employee” has different meanings in

different parts of 42 U.S.C. § 2000e–16(b) of Title VII of the Civil Rights Act of

1964); see also Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 313–14 (2006)

(“located” has different meanings in different sections of the National Bank Act).

But even if we were to hold that the term “applicant” as used throughout the

statute includes guarantors, that is a better answer than the Majority Opinion’s

conclusion. Judge Colloton’s examples suggest that such an interpretation could

75 Case: 17-11736 Date Filed: 08/28/2019 Page: 76 of 88

create unexpected benefits for guarantors. That is preferable to gutting the statute’s

reason for being. The Majority Opinion’s interpretation does not simply “limit[] the

achieving” of what Congress sought with the ECOA, Maj. Op. at 20 (citation

omitted); as I have explained, it “would be destructive of [the law’s] purpose. . . .”

Robinson, 519 U.S. at 346.

So the Majority Opinion’s analysis cannot carry the day. “[T]he overriding

national policy against discrimination that underlies the [ECOA]” means that “we

cannot give” words in that statute a “narrow interpretation.” Bros. v. First Leasing,

724 F.2d 789, 793 (9th Cir. 1984). Instead, we must “construe the literal language

of the ECOA in light of the clear, strong purpose evidenced by the Act and adopt an

interpretation that will serve to effectuate that purpose.” Id.; see also United States

v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“[W]hen the plain meaning did

not produce absurd results but merely an unreasonable one ‘plainly at variance with

the policy of the legislation as a whole[,]’ this Court has followed that purpose, rather

than the literal words.”) (citation omitted). Considering Congress’s remedial

purposes in enacting the ECOA, as well as that the many definitions of “applicant”

do not exclude the possibility that an “applicant” includes a guarantor, we must

conclude that Congress’s employment of the term “applicant” is ambiguous with

respect to whether it covers guarantors. For this reason, we must conduct a Chevron

76 Case: 17-11736 Date Filed: 08/28/2019 Page: 77 of 88

analysis of the Federal Reserve’s answer to our question of whether the ECOA

includes guarantors within the definition of “applicants.”

C.

Under Chevron, “we may not disturb an agency rule unless it is ‘arbitrary or

capricious in substance, or manifestly contrary to the statute.’” Mayo Found. for

Med. Educ. & Res. v. United States, 562 U.S. 44, 53 (2011) (quoting Pfennig, 541

U.S. at 242). At bottom, then, we must ask whether the Federal Reserve’s inclusion

of guarantors in the ECOA’s definition of “applicant” is a “reasonable

interpretation” of the ECOA’s text. Chevron, 467 U.S. at 844. The Federal

Reserve’s interpretation is reasonable for at least three reasons: it accords with the

ECOA’s text; it furthers a primary purpose of the ECOA; and, Congress has tacitly

approved of the Federal Reserve’s interpretation.

1. The Federal Reserve’s inclusion of guarantors within the meaning of “applicants” is consistent with the ECOA’s text.

First, guarantors fit within the plain meaning of “applicants.” As I have noted,

leading authorities recognize that guarantors apply to the creditor by asking it to

extend credit to the primary debtor. See supra at 63.

The Majority Opinion’s conclusion to the contrary rests on its premise that

“[a]lthough a guarantor makes a promise related to an applicant’s request for credit,

the guaranty is not itself a request for credit.” Maj. Op. at 12. But the Majority

Opinion offers no support (beyond the Eighth Circuit’s erroneous conclusion in 77 Case: 17-11736 Date Filed: 08/28/2019 Page: 78 of 88

Hawkins) for the notion that the guarantor is not requesting that the creditor extend

credit to the primary borrower. Not a treatise. Not an industry source. Not another

statute. Not a dictionary. Not even something from the remote reaches of the

internet. Instead, the Majority Opinion relies on its own understanding of credit

markets.

But the Majority Opinion’s own view—regardless of how learned and

reasonable—of how terms are used in credit markets, does not control if the agency’s

interpretation is also reasonable. Indeed, “[t]he reviewing court may not substitute

its judgment for that of the agency but must, instead, defer to the agency’s technical

expertise” if its interpretation is within the range of reasonableness. Miami-Dade

Cty. v. E.P.A., 529 F.3d 1049, 1065 (11th Cir. 2008) (citation and quotation marks

omitted). And here, as I have noted, leading treatises and industry sources recognize

that guarantors request credit. See supra at 63. Since the Federal Reserve’s

interpretation of the text is reasonable—not to mention well-supported—we must

defer to it.

2. The Federal Reserve’s inclusion of guarantors within the meaning of “applicants” is consistent with primary purposes of the ECOA.

Second, the Federal Reserve’s interpretation is reasonable because covering

“guarantors” fits squarely within the wheelhouse of the ECOA’s aims. As I have

noted, in enacting the ECOA, Congress sought to disentangle sex and marital status

from credit. See Senate Rpt. at 16–17. Congress also set out “to prevent loans from 78 Case: 17-11736 Date Filed: 08/28/2019 Page: 79 of 88

being conditioned automatically on the securing of the signature of the non-

borrowing spouse.” Mayes, 167 F.3d at 676.

The Federal Reserve’s interpretation accounts for and respects these primary

goals of the ECOA. But not including guarantors within the definition of

“applicants” yanks the teeth out of the ECOA. See supra at 71–73.

3. The Federal Reserve’s inclusion of guarantors within the meaning of “applicants” is consistent with congressional abstention from amending the ECOA to preclude that interpretation, despite Congress’s other amendments to the ECOA.

Third, the Federal Reserve’s interpretation of “applicants” to include

guarantors is reasonable, in view of congressional action on the ECOA since its

enactment in 1974. The Supreme Court has instructed us to tread lightly where

Congress has amended a statute but declined to disturb the agency’s interpretation.

For instance, in Texas Department of Housing & Community Affairs v.

Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), the Court considered

whether the statutory language authorized disparate-impact claims under the Fair

Housing Act. In conducting its analysis, the Court found it significant that Congress

declined to alter the language at issue to preclude such claims, even though Congress

had amended the statute after several Circuits had determined that the statute

authorized such claims. Id. at 2519. Congress’s inaction, the Court explained, was

“convincing support for the conclusion that Congress accepted and ratified the

unanimous holdings of the Courts of Appeals finding disparate-impact liability.” Id. 79 Case: 17-11736 Date Filed: 08/28/2019 Page: 80 of 88

at 2520; see also Gen. Dynamics, 540 U.S. at 593–94 & n.6 (noting that the two

federal appellate courts and nearly all the district courts to consider the issue held

that the Age Discrimination in Employment Act of 1967 did not prohibit favoring

older employees over younger ones: “The very strength of this consensus is enough

to rule out any serious claim of ambiguity, and congressional silence after years of

judicial interpretation supports adherence to the traditional view.”).

Here, Congress has tinkered with the ECOA no fewer than three times since

1985, when the Federal Reserve began construing the ECOA to include guarantors

within the term “applicants.” See, e.g., Dodd-Frank Wall Street Reform and

Consumer Protection Act, Pub. L. 111-203, §§ 1071, 1474, 124 Stat. 1376, 2056–

57, 2199–2200 (2010); Omnibus Consolidated Appropriation Act, 1997, Pub. L.

104-208, § 2302, 110 Stat. 3009 (1996); Federal Deposit Insurance Corporation

Improvement Act of 1991, Pub. L. 102-242, §§ 212(d), 223, 105 Stat. 2236 (1991).

And up until 2014, when the Eighth Circuit issued Hawkins, the “vast majority

of courts” that examined the issue found that guarantors had standing under the

ECOA. See RL BB, 754 F.3d at 386. True, as the Majority Opinion notes, many of

the cases deciding this issue offered little reasoning for their decisions. Maj. Op. at

25–26. But the Supreme Court does not require otherwise. While the Court

acknowledged the judicial consensus of the interpretation of the Fair Housing Act in

Texas Department of Housing, contrary to the Majority Opinion’s characterization,

80 Case: 17-11736 Date Filed: 08/28/2019 Page: 81 of 88

it did not require the lower courts’ decisions to be “reasoned.” Maj. Op. at 26. It

noted simply that the courts that had “addressed” the issue had consistently come

out the same way. Tex. Dep’t of Hous., 135 S. Ct. at 2519. And most of the cases

the Court referenced were not particularly well-reasoned; they just adopted what

other circuits had done. See, e.g., Hanson v. Veterans Admin., 800 F.2d 1381, 1386

(5th Cir. 1986) (noting and adopting analysis from other circuits that Fair Housing

Act violations can be proven with a showing of discriminatory effect); Arthur v. City

of Toledo, Ohio, 782 F.2d 565, 574–75 (6th Cir. 1986) (same); United States v.

Marengo Cty. Comm’n, 731 F.2d 1546, 1559, n.20 (11th Cir. 1984) (same); Smith v.

Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982) (same); Halet v. Wend

Inv. Co., 672 F.2d 1305, 1311 (9th Cir. 1982) (same).

The more important point, though, is that Congress has long been on notice

as to how federal courts have interpreted the ECOA and Regulation B. And with

that knowledge in hand, Congress amended the law multiple times and never

considered tweaking the ECOA to abrogate these courts’ approval of the Federal

Reserve’s interpretation. Even after the Seventh Circuit issued Moran, in which a

Court of Appeals—for the first time—voiced doubts in dicta about the Federal

Reserve’s interpretation, Congress left the ECOA’s definition of “applicant” the

same, even though it substantively amended the ECOA three years later, in 2010.

So Congress declined to take the Seventh Circuit up on its invitation to cap the

81 Case: 17-11736 Date Filed: 08/28/2019 Page: 82 of 88

supposed “vistas of liability” that the Seventh Circuit concluded Congress was

“unlikely to accept.” Moran, 476 F.3d at 441. Congressional inaction on this point

in the face of thirty years of uniformity “supports adherence to the traditional view,”

Gen. Dynamics, 540 U.S. at 594, that the Federal Reserve’s inclusion of guarantors

within the term “applicants” is valid.

III.

We should dismiss this case because it is not properly before us. The Majority

Opinion’s insistence on “resolving” a claim that no Appellant has presented to us

renders its discussion of the ECOA unnecessary. But because that discussion

incorrectly purports to truncate the ECOA’s broad reach, it leaves me no choice but

to respond. Unfortunately, the Majority Opinion’s analysis artificially limits the

definitions of “applicant” and “guaranty”; it conflicts with congressional aims in

enacting the ECOA; and it is rebutted by Congress’s failure to amend the ECOA to

make guarantors fall outside the meaning of “applicants,” in the 34 years since the

Federal Reserve has construed the term “applicants” to include guarantors.

Ultimately, the Majority Opinion’s interpretation of the ECOA ironically allows

lenders to get away with discriminating on the basis of sex or marital status, the very

thing the ECOA meant to eliminate. I therefore respectfully dissent.

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