Carol Vorchheimer v. Philadelphian Owners Associati

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-1738
_______________
CAROL VORCHHEIMER,
Appellant
v.
THE PHILADELPHIAN OWNERS ASSOCIATION;
JUNE IDZAL; FRANK J. BONOM
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:16-cv-05145)
District Judge: Honorable Juan R. Sánchez
_______________
Argued March 23, 2018
Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges
(Filed: September 5, 2018)
_______________
Stuart D. Lurie [ARGUED]
Rosenthal Lurie & Broudy
102 Pickering Way
Suite 310
Exton, PA 19341
Counsel for Appellant
Christopher M. Curci [ARGUED]
Freeman Mathis & Gary
1800 John F. Kennedy Boulevard
Suite 1500
Philadelphia, PA 19103
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
A disabled tenant has a right to a reasonable housing ac-
commodation that she needs to use and enjoy her home. But if
her landlord offers her an alternative that likewise satisfies that
need, she has no right to demand the particular accommodation
that she wants.
Carol Vorchheimer needs ready access to her rolling walker
and wanted to leave it in her building’s lobby. The building
managers refused, but offered her four other ways to store and
access her walker. She sued under the Fair Housing Amend-
ments Act, claiming that her preferred accommodation was
2
necessary to equally enjoy her home. The District Court dis-
missed her complaint, holding that she had not plausibly
pleaded necessity.
We will affirm. Necessity is a demanding legal standard.
For a housing accommodation to be “necessary” under the Act,
it must be required for that person to achieve equal housing
opportunity, taking into account the alternatives on offer.
Here, Vorchheimer’s own complaint, including the exhibits
attached to it, forecloses her claim. Leaving the walker in the
lobby was her preference. But given the four alternatives of-
fered—which she herself pleaded—she did not plausibly plead
that it was necessary.
I. BACKGROUND
We accept as true the well-pleaded allegations in the
amended complaint, including those in the exhibits attached to
it: Vorchheimer suffers from pulmonary hypertension (high
blood pressure) and other disabilities. As a result, she must use
a rolling walker to get around. She owned a condominium in
The Philadelphian and had a reserved parking space in front of
the building. Vorchheimer would use her walker to get from
her condo to the lobby and then use her cane from the lobby to
her car. She could neither lift her walker, nor fold it, nor put it
into her car. Instead, she began leaving her walker in The Phil-
adelphian’s lobby when she left.
One day, Vorchheimer left her walker in a corner of the
lobby. A building staffer took the walker and stored it in a room
behind the concierge desk. The next day, The Philadelphian’s
general manager, Frank Bonom, emailed Vorchheimer and
3
asked her to give her walker to the front-desk staffer whenever
she left. She refused.
A year-long quarrel ensued, culminating in this case.
Vorchheimer kept leaving her walker in the lobby. The Phila-
delphian’s staff kept putting it into storage until she returned
and asked for it. And Vorchheimer kept insisting that putting it
away was unacceptable. Because of her disabilities, she as-
serted, she needed her walker to be available in the lobby upon
her return so that she could independently retrieve it.
Although The Philadelphian refused to let Vorchheimer
leave her walker in the lobby, it offered her four alternative
accommodations. Am. Compl. ¶ 33 & Ex. 8. First, she could
have staff store the walker and then return it to her in the
lobby—she could either phone ahead to have it ready for her,
or sit on a bench to await its retrieval. Second, she could have
a staffer deliver the walker to her car before she got out of it.
Third, she could have the doorman load the walker into and
take it out of her car’s trunk. Or finally, she could start parking
in the building’s indoor valet-parking garage, where she could
leave her walker near the valet station. But Vorchheimer re-
jected all these alternatives and insisted that she needed to
leave her walker in the lobby.
To support her demand, Vorchheimer gave the building’s
managers several letters from her doctors. In the first two, her
doctors detailed her medical issues and wrote that “[h]er use of
a rolling walker is a medical necessity.” Id. Exs. 4 & 7. In the
third, her doctor reiterated that she needs to “have ready access
to her walker or scooter” and that she should “not [be] required
to stand [a]waiting assistance for any period of time.” Id. Ex. 9.
4
The doctor noted management’s offer to bring the walker to
Vorchheimer’s car. But he considered it “preferable to simply
have her walker readily available to her in the building lobby.”
Id. This way, she could “maintain[ ] her independence” and not
risk having to stand and wait for someone else to get the
walker. Id.
Neither side would budge. So Vorchheimer sued Bonom,
The Philadelphian Owners’ Association, and the Association’s
then-president, June Idzal. She alleged that the defendants
were violating 42 U.S.C. § 3604(f) by refusing to let her leave
her walker in The Philadelphian’s lobby so she could retrieve
it by herself. And she attached to her complaint her doctors’
letters and her correspondence with the building’s managers.
The District Court dismissed Vorchheimer’s complaint. It
acknowledged that “keeping her equipment in the lobby may
be Plaintiff[’s] preferred accommodation.” App. 2 n.1. But she
had not plausibly alleged that it was necessary. App. 3 n.2. So,
the Court held, “Defendants’ storage . . . and prompt retrieval
of [her walker] when she returns does not deny Plaintiff a full
and equal opportunity to enjoy her housing.” Id. Vorchhei-
mer’s amended complaint added nothing material, so the Dis-
trict Court dismissed again based on lack of necessity. App. 5
n.1. Vorchheimer then filed this appeal and later moved out of
The Philadelphian.
II. STANDARD OF REVIEW
We review de novo the dismissal of a complaint for failure
to state a claim. Foglia v. Renal Ventures Mgmt., LLC, 754
F.3d 153, 154 n.1 (3d Cir. 2014). In doing so, we construe the
5
complaint in the light most favorable to the plaintiff. We accept
all factual allegations as true and draw all reasonable infer-
ences in her favor. Id. To survive a motion to dismiss, a com-
plaint must contain enough facts to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In determining whether Vorchheimer’s claim is plau-
sible, we consider not only her complaint, but also the exhibits
she attached to it, including her doctors’ letters and The Phila-
delphian’s correspondence proposing alternative accommoda-
tions. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
III. TO BE “NECESSARY,” A HOUSING ACCOMMODATION
MUST BE REQUIRED TO ACHIEVE EQUAL HOUSING
OPPORTUNITY IN LIGHT OF THE ALTERNATIVES OFFERED
The Fair Housing Amendments Act forbids housing dis-
crimination against the disabled. One of its key provisions bans
“discriminat[ing] against any person in the terms, conditions,
or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection with such dwelling, be-
cause of [that person’s] handicap.” 42 U.S.C. § 3604(f)(2),
(f)(2)(A). “[D]iscrimination includes”:
[1] a refusal to make
[2] reasonable accommodations in rules, policies,
practices, or services,
[3] when such accommodations may be
[a] necessary to afford such person
[b] equal opportunity to use and enjoy a
dwelling[.]
6
42 U.S.C. § 3604(f)(3), (f)(3)(B) (line breaks, numbers, and
emphases added).
Under this subparagraph, a plaintiff can state a claim by
pleading all three elements. This case turns on the first half of
the third element: whether a requested accommodation is nec-
essary. That is an independent requirement, one we must now
define.
A. The statutory text requires an accommodation be es-
sential to achieve equal housing opportunity, measured
against any alternatives that were offered.
We begin with the text. We look to the statutory provision’s
language and to the ordinary meaning of the words it uses. Ar-
tis v. District of Columbia, 138 S. Ct. 594, 603 (2018). Diction-
aries, statutes, case law, treatises, literature, and even songs
cast light on the ordinary meaning of “necessary.” These
sources tell us at least three things: First, “necessary” means
“required.” It is a high standard. Second, we must consider
what is necessary to satisfy the particular disabled person’s
need. This statute pegs necessity to affording this disabled per-
son equal opportunity to use and enjoy her dwelling. And third,
we must gauge necessity in light of proposed alternatives.
1. “Necessary” means required, indispensable, essential.
“Necessary” is a “word[ ] of limitation.” In re Microsoft Corp.
Antitrust Litig., 355 F.3d 322, 327 (4th Cir. 2004). As an ad-
jective, it means “[i]ndispensable, requisite, essential, needful;
that cannot be done without,” or “absolutely required.” 10 Ox-
ford English Dictionary 275-76 (2d ed. 1989); Webster’s Third
New International Dictionary 1510-11 (1966). The other sense
7
of the adjective is causal: “Inevitably determined or fixed by
predestination or the operation of natural laws; happening or
existing by an inherent necessity.” 10 Oxford English Diction-
ary at 275-76.
Necessary’s dictionary definitions reflect the word’s ordi-
nary meaning. Consider its use in formal logic: a necessary
condition is something essential for something else to be true.
See 10 Oxford English Dictionary at 276; Irving M. Copi et al.,
Introduction to Logic 471 (14th ed. 2011). In the example
above, lemon juice is a necessary condition for making lemon-
ade.
In keeping with these definitions, English speakers distin-
guish desired goods from necessary ones. Thoreau categorized
the “necessaries of life” as “Food, Shelter, Clothing, and Fuel.”
Henry David Thoreau, Walden 14 (Courage Books 1990).
“[N]ext to necessaries,” he ranked only “a few implements, a
knife, an axe, a spade, a wheelbarrow, etc., and for the studi-
ous, lamplight, stationery, and access to a few books.” Id. at 15
(emphasis added). And years before he became president, Lin-
coln contrasted alcohol with staples like “flour, beef, bacon, or
any other of the real necessaries of life.” Abraham Lincoln,
Temperance Address, Springfield, Illinois (Feb. 22, 1842).
So the word “necessary,” without more, is stringent. When
it is not followed by an object, as it is in this statute, English
speakers and writers typically reserve “necessary” for our
physiological needs and perhaps our needs for health and
safety. Cf. A.H. Maslow, A Theory of Human Motivation, 50
Psych. Rev. 370 (1943) (describing these as the foundational
and second levels of Maslow’s hierarchy of needs). Necessities
8
do not include conveniences and creature comforts, much as
they are desirable or even helpful.
True, we sometimes speak loosely, confusing our wants
with our needs. Children may declare, “I need candy.” Adults
may groan that they need a beer or a vacation. But wants are
not needs. Parents remind their children that, while they want
candy, they do not need it. So too with beers and vacations. As
The Rolling Stones put it: “You can’t always get what you
want / But if you try sometimes you might find / You get what
you need.” The Rolling Stones, You Can’t Always Get What
You Want, on Let It Bleed (London Records 1969). And though
we sometimes use the verb “need” loosely, we do not do the
same with the adjective “necessary.” Nor does Congress write
statutes with such loose, colloquial phrasing.
Like ordinary English speakers, the common law uses “nec-
essary” in this strict sense of essential or indispensable. In con-
tract law, “the predominant rule is that a minor’s contracts are
generally voidable but that contracts for what are known as
‘necessaries’ are enforceable.” Rodriguez v. Reading Hous.
Auth., 8 F.3d 961, 964 (3d Cir. 1993) (Alito, J.). “[C]ourts have
traditionally viewed what constitutes necessaries narrowly.” 5
Richard A. Lord, Williston on Contracts § 9.19 (4th ed. 1993
& May 2018 update). The classic necessities are “food, cloth-
ing, and shelter,” and at least a basic education. Id. Ordinary
food qualifies, though candies and fruit do not. Ordinary cloth-
ing qualifies, but elegant clothing and jewelry do not. A major-
ity of courts hold that cars and trucks do not qualify, nor even
bicycles. Id. And while shelter qualifies if a minor’s parent or
9
guardian will not provide it, buying a house or furniture does
not. Id.; Rodriguez, 8 F.3d at 964.
When writers wish to tighten or loosen the degree of neces-
sity, they add modifiers. Describing a necessity as “absolute,”
“logical,” “physical,” or “bare” constricts the necessity re-
quired even more. But when Congress wants to loosen neces-
sity to mean just “sufficiently important,” it uses the phrase
“reasonably necessary.” E.g., Ayestas v. Davis, 138 S. Ct.
1080, 1093 (2018) (interpreting 18 U.S.C. § 3599(a)). Or it
pairs “necessary” with a looser term to include what is merely
fitting or preferable. So Congress, in the All Writs Act, author-
ized courts to “issue all writs necessary or appropriate in aid of
their respective jurisdictions.” 28 U.S.C. § 1651(a).
Congress even used “necessary or appropriate” in another
section of this Act. That provision authorizes the Secretary of
Housing and Urban Development to “collect such information
. . . as the Secretary determines to be necessary or appropriate.”
42 U.S.C. § 3608(e)(6). “[W]here Congress includes particular
language in one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(internal quotation marks omitted). Congress knew how to
broaden “necessary” by adding “or appropriate” in
§ 3608(e)(6), but chose not to do so in § 3604(f)(3)(B). Each
statute is different, however, and the text, structure, or context
of another provision may suggest a different interpretation or
degree of necessity. Our holding today is limited to this partic-
ular provision of the Fair Housing Amendments Act.
10
The statute applies “when such accommodations may be
necessary,” but “may” does not change our analysis. 42 U.S.C.
§ 3604(f)(3)(B). Vorchheimer cites a few district-court deci-
sions that imply that the conditional “may” waters down the
degree of necessity, requiring only a probability of necessity.
E.g., Kuhn ex rel. Kuhn v. McNary Estates Homeowners Ass’n,
228 F. Supp. 3d 1142, 1149 (D. Or. 2017); Sabal Palm Condos.
of Pine Island Ridge Ass’n v. Fischer, 6 F. Supp. 3d 1272, 1281
n.11 (S.D. Fla. 2014). That is not so here. In this statute, “may”
signals not a low probability of necessity, but rather the condi-
tional mood. The condition, when met, makes the accommo-
dation necessary, as in the phrase “as the case may be.”
“[W]hen such accommodations may be necessary” in
§ 3604(f)(3)(B) is another way of saying “whenever they are
necessary” or “as far as they are necessary.”
In short, the Act’s necessity element requires that an ac-
commodation be essential, not just preferable.
2. We must gauge necessity in light of the goal of achieving
equal housing opportunity. Necessity tracks an underlying
need or goal. Sometimes that goal is implicit; “necessary”
without more often implies “necessary for survival.” Some-
times, it is explicit. The word “necessary” is often followed by
“to” or “for,” specifying the need. Fuel, oxygen, and a spark
are necessary to build a fire. A medical degree is necessary to
practice medicine.
Here, the Act tells us what to look for: an “accommoda-
tion[ ] . . . [that] may be necessary to afford [the disabled] per-
son equal opportunity to use and enjoy a dwelling.” 42 U.S.C.
§ 3604(f)(3)(B). The text pegs the necessity to the goal of
11
providing the particular tenant with equal housing opportunity.
“[T]he object of the statute’s necessity requirement is a level
playing field in housing for the disabled.” Cinnamon Hills
Youth Crisis Ctr. v. St. George City, 685 F.3d 917, 923 (10th
Cir. 2012). “Think of the blind woman who obtains an exemp-
tion from a ‘no pets’ policy for her seeing eye dog, or the par-
aplegic granted special permission to live on a first floor apart-
ment because he cannot climb the stairs.” Id. The blind
woman’s need is a way to navigate to and around her apart-
ment. The paraplegic’s need is a way to get to his apartment.
Once we identify the particular tenant’s need, we can gauge
what is necessary to afford that tenant equal housing oppor-
tunity.
3. One must also consider the alternatives on offer to
gauge whether they satisfy the statutory goal. Giving the para-
plegic a first-floor apartment is one way to give him access and
thus equal opportunity to use his apartment. But an elevator
would work too. That alternative would give him access to
every apartment, so a first-floor apartment would no longer be
necessary. The landlord has to offer at least one of the accom-
modations, but not both. If she does offer one of them, she has
not “refus[ed] to make reasonable accommodations . . . [that]
may be necessary to afford [the tenant] equal [housing] oppor-
tunity.” 42 U.S.C. § 3604(f)(3)(B) (emphasis added). In that
vein, food is necessary to survive. But if soup and salad are on
offer, a sandwich is not necessary. Gauging necessity, then, re-
quires considering whether another alternative on offer satis-
fies the goal of equal housing opportunity for that tenant.
12
Consideration of the alternatives has long been built into
the common law’s analyses of necessity. For example, in crim-
inal law, the defense of necessity justifies breaking the law, but
only if there is no “reasonable, legal alternative to violating the
law.” United States v. Bailey, 444 U.S. 394, 410 (1980); accord
2 Wayne R. LaFave, Substantive Criminal Law § 10.1(d)(5), at
172-73 (3d ed. 2017 & Oct. 2017 update). Torts has a similar
defense, and it also considers alternatives. See Restatement
(Second) of Torts § 196 cmt. d (1965). In double jeopardy, the
manifest-necessity doctrine allows judges to declare mistrials.
But, except in cases of jury deadlock, courts must first consider
alternatives to doing so, such as granting continuances or giv-
ing curative jury instructions. 6 Wayne R. LaFave et al., Crim-
inal Procedure § 25.2(c)-(d), at 798-804 (4th ed. 2015); see,
e.g., United States v. Jorn, 400 U.S. 470, 487 (1971) (plurality
opinion). And the doctrine of easement by necessity grants the
owner of a landlocked parcel a right of way to reach a public
road. E.g., Leo Sheep Co. v. United States, 440 U.S. 668, 679
(1979). Traditionally, the “necessity giving rise to the ease-
ment must be ‘absolute,’ affording no alternative means of in-
gress and egress.” Kapp v. Norfolk S. Ry. Co., 350 F. Supp. 2d
597, 610 (M.D. Pa. 2004); see also John G. Sprankling, Un-
derstanding Property Law § 32.05[B][3][a], at 554-55 (4th ed.
2017).
Section 3604(f)(3)(B) likewise requires courts to consider
alternatives. Two district-court decisions illustrate this consid-
eration. In one, a disabled tenant was unable to drive her hand-
icapped-accessible van over speed bumps. So it was necessary
that her building’s parking lot have one entrance without a
speed bump, but not that both of its entrances lack speed
13
bumps. See Resnick v. 392 Cent. Park W. Condo., No. 07-cv-
1988, 2007 WL 2375750, at *2 (S.D.N.Y. Aug. 14, 2007). In
the other case, a disabled couple needed on-site parking. So it
was necessary that this couple have one parking spot, but not
two. See Temple v. Hudson View Owners Corp., 222 F. Supp.
3d 318, 324 (S.D.N.Y. 2016). “While having only one parking
space may be less convenient for Plaintiffs [than having two],
the law does not require defendants to provide the best possible
accommodation” or plaintiffs’ preferred accommodation. Id.When defendants have already provided an adequate alterna-
tive, “[they] need not adopt plaintiff’s preferred means of ac-
commodation.” Resnick, 2007 WL 2375750, at *2.
Of course, the proffered alternatives must still satisfy the
remainder of the subsection’s third element: affording equal
housing opportunity. That may require more than “just those
accommodations that are absolutely necessary for the disabled
individual’s treatment or basic ability to function.” Anderson
v. City of Blue Ash, 798 F.3d 338, 361-62 (6th Cir. 2015). To
qualify as alternative “reasonable accommodations,” the ac-
commodations must afford the particular disabled person equal
opportunity both to use and to enjoy her home. An accommo-
dation that does not provide equal opportunity, or that provides
equal opportunity to use but not to enjoy, will not satisfy that
requirement.
So courts must weigh whether the tenant’s requested ac-
commodation and the landlord’s proposed alternative afford
equal housing opportunity. Whether the accommodations do so
depends on that particular tenant’s abilities and disability,
14
which may require a fact-intensive inquiry. But all the prof-
fered alternatives that afford equal opportunity to use and to
enjoy housing bear on whether a specific accommodation is
necessary.
Beyond those observations, we need not offer detailed
guidance on how judges and juries should compare various al-
ternatives. We leave those details for another day. And, as we
discuss below, a plaintiff need not plead or hypothesize alter-
natives to state a claim or establish a prima facie case.
B. Precedent supports this reading.
1. Our precedent. This reading of § 3604(f)(3)(B) com-
ports with our precedent. The Supreme Court has not defined
the necessity element. And most of our cases on this provision
have addressed other elements, not necessity. Our decision in
Hovsons addressed the reasonableness element and who bears
the burden of proving it, not what is necessary. Hovsons, Inc.
v. Township of Brick, 89 F.3d 1096, 1103-06 (3d Cir. 1996).
More recently, we applied the refusal element, not necessity.
Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 110-12
(3d Cir. 2017).
The one time that we have applied the necessity element,
we equated “necessary” with “required.” Lapid-Laurel, L.L.C.
v. Zoning Bd. of Adjustment, 284 F.3d 442, 461 (3d Cir. 2002).
In Lapid-Laurel, we held that, to establish necessity, the plain-
tiff had “to show that [the requested zoning variance] is re-
quired to make [the proposed nursing home] financially viable
or medically effective.” Id. (emphasis added). In other words,
the plaintiff had to prove “that the size of the proposed facility
15
either would be necessary for the facility’s financial viability
(and therefore necessary to give the handicapped an equal op-
portunity to live in a residential neighborhood) or would serve
a therapeutic purpose, (and would therefore be necessary to
ameliorate an effect of the handicap).” Id.We described that test as “[a] strict interpretation of the ‘ne-
cessity’ requirements.” Id. Applying that “strict interpreta-
tion,” we held that no reasonable jury could have found that the
requested variance was necessary. Id. But because the case in-
volved zoning variances, it focused on what was necessary to
build and situate a nursing home in the first place. We had no
occasion to consider an individual tenant’s request for accom-
modations or the relevance of a landlord’s proffered alterna-
tives.
Vorchheimer, however, reads Lapid-Laurel differently.
She asks us to distill a much weaker test of necessity from an
earlier passage, in which we block-quoted a Fourth Circuit
opinion: “ ‘And if the proposed accommodation provides no
direct amelioration of a disability’s effect, it cannot be said to
be “necessary.” ’ ” Id. at 460 (quoting Bryant Woods Inn, Inc.
v. Howard County, 124 F.3d 597, 604 (4th Cir. 1997)).
But that sentence did not define necessity. All the quoted
sentence did is set forth a threshold criterion. Its double-nega-
tive construction means only that an accommodation is unnec-
essary when it does not directly ameliorate a disability’s effect.
That does not mean that an accommodation is necessary just
because it does ameliorate a disability; it must “ameliorate
[the] effect of the handicap” on the achievement of equal hous-
ing opportunity. Lapid-Laurel, 284 F.3d. at 461 (emphasis
16
added). A beverage without lemon juice cannot be said to be
real lemonade. But lemon juice alone does not lemonade make;
it needs other ingredients, like water and a sweetener, in the
right proportions. So that sentence did not weaken Lapid-Lau-
rel’s test.
2. Other circuits. Likewise, sister-circuit precedent adopts
the strict sense of “necessary.” As then-Judge Gorsuch recog-
nized, “necessary” in § 3604(f)(3)(B) bears its ordinary mean-
ing: “The word implies more than something merely helpful or
conducive. It suggests instead something ‘indispensable,’ ‘es-
sential,’ something that ‘cannot be done without.’ ” Cinnamon
Hills, 685 F.3d at 923 (quoting 10 Oxford English Dictionary
at 276). “Put simply, the statute requires accommodations that
are necessary (or indispensable or essential) to achieving the
objective of equal housing opportunities between those with
disabilities and those without.” Id.
Other circuits make the same point using the language of
causation. Necessity functions as a but-for causation require-
ment, tying the needed accommodation to equal housing op-
portunity. An accommodation is necessary if, “without the ac-
commodation, the plaintiff will be denied an equal opportunity
to obtain [or use, or enjoy] the housing of her choice.” Wis.
Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 749 (7th
Cir. 2006) (en banc); accord id. at 754-55 (“cause-in-fact” and
“but for” cause); Anderson, 798 F.3d at 361 (“but for . . . cau-
sation inquiry” (internal quotation marks omitted)); see also
Lapid-Laurel, 284 F.3d at 460 (quoting other circuits’ cases
adopting a “but for . . . causation requirement”). Cf. Bhogaita v.
Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289
17
(11th Cir. 2014) (upholding a jury verdict for plaintiff because,
“without the [emotional-support] dog [sought], [plaintiff’s] so-
cial interactions would be so overwhelming that he would be
unable to perform work of any kind” (internal quotation marks
omitted)). In short, these precedents confirm our, and Lapid-
Laurel’s, reading of the plain text.
C. HUD’s informal guidance does not change the plain
meaning of “necessary.”
Vorchheimer argues that alternative accommodations are
irrelevant to analyzing necessity. She relies on a Joint State-
ment of the Department of Housing and Urban Development
and the Department of Justice, Reasonable Accommodations
Under the Fair Housing Act (May 17, 2004). But it does not
aid her cause.
The passage of the Joint Statement to which she points does
not define necessity. It advises landlords to heed disabled ten-
ants’ requests and superior knowledge: A landlord may “be-
lieve[ ] that, while the accommodation requested by [a disabled
person] is reasonable, there is an alternative accommodation
that would be equally effective.” App. 116. Because a disabled
person “typically ha[s] the most accurate knowledge about [her
own] functional limitations . . . [she] is not obligated to accept
an alternative accommodation suggested by the provider if she
believes it will not meet her needs and her preferred accommo-
dation is reasonable.” Id. This may well be prudent advice. But
it does not purport to interpret the statutory requirement of ne-
cessity.
18
Even if one read the Joint Statement as bearing on neces-
sity, it would be unpersuasive. It is not a notice-and-comment
regulation, but a guidance letter. So it does not merit Chevron
deference. Christensen v. Harris County, 529 U.S. 576, 587
(2000) (discussing the limits of Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837, 842-44 (1984)). It merits “ ‘respect’ ” under Skid-
more, but “only to the extent that [its] interpretations [of the
statute] have the ‘power to persuade.’ ” Id. (quoting and apply-
ing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Some of Skidmore’s factors weigh in Vorchheimer’s favor.
The Joint Statement was issued fourteen years ago, and we
have no reason to believe that it is “[in]consisten[t] with [the
agency’s] earlier and later pronouncements.” Skidmore, 323
U.S. at 140. Even so, it is unpersuasive on this point. The pas-
sage does not purport to parse or define the statutory require-
ment of necessity, nor to consider what that word means in
common parlance or in other areas of law. So it neither “thor-
ough[ly] . . . consider[s]” nor “valid[ly] . . . reason[s]” about the
particular statutory requirement of necessity. Id. It cannot over-
come the plain meaning of the word, which requires courts to
consider the alternatives on offer.
IV. VORCHHEIMER DID NOT PLAUSIBLY PLEAD
NECESSITY, SO DISMISSAL WAS PROPER
A. Necessity is amenable to dismissal.
Vorchheimer argues that necessity is so fact-specific, and
so divorced from the alternatives on offer, that it is never ame-
nable to dismissal—or even perhaps summary judgment. We
disagree. As we have explained, the necessity element has a
19
legal meaning. And that legal meaning requires considering the
alternatives.
Our holding today in no way raises or shifts the pleading
requirements or burden of proof for housing-discrimination
claims. We do not require plaintiffs to hypothesize alternatives,
let alone to preempt hypotheticals. Nor do we change how
courts should treat these claims, including the necessity ele-
ment, on a motion to dismiss. To survive a motion to dismiss,
a plaintiff need only plausibly plead enough facts to make out
the three elements set forth in § 3604(f)(3)(B): refusal, reason-
able accommodation, and necessity/equal opportunity.
Plaintiffs need not, and generally do not, plead alternative
accommodations. So, ordinarily, district courts do not have al-
ternatives before them on a motion to dismiss. Assessing alter-
natives typically requires a factual record, and developing that
factual record requires discovery.
But this is not an ordinary case. Vorchheimer did not just
plead facts supporting the statutory elements, including her dis-
ability and her requested accommodation. She also specifically
pleaded the four alternative accommodations in her complaint.
Am. Compl. ¶ 33.a-d. She attached Idzal’s correspondence (on
behalf of The Philadelphian) outlining them. Id. Exs. 5, 8. And
she attached four doctors’ letters that detail her disabilities and
medical needs. Id. Exs. 4, 7, 9, 12. As exhibits to her own com-
plaint, these materials were appropriate to consider on a motion
to dismiss. See Mayer, 605 F.3d at 230; see also 5C Wright &
Miller, Federal Practice and Procedure § 1363 (3d ed. 2004 &
Supp. Apr. 2018). They do not require going “outside the
pleadings.” See Fed. R. Civ. P. 12(d). And if her own exhibits
20
contradict her allegations in the complaint, the exhibits control.
Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir. 2010); see
also Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113
F.3d 405, 417 (3d Cir. 1997) (rejecting, on a motion to dismiss,
factual “assertions [that were] belied by both the remaining
factual allegations and the law”).
Finally, this appeal arises on a motion to dismiss, not a mo-
tion for summary judgment. Nothing in our opinion adds ele-
ments to a plaintiff’s prima facie case or alters the burden-shift-
ing framework that we apply at summary judgment. See Lapid-
Laurel, 284 F.3d at 459; Hovsons, 89 F.3d at 1103.
B. Vorchheimer did not plausibly plead that her re-
quested accommodation is necessary in light of the alterna-
tives offered.
Although Vorchheimer asked to leave her walker in the
lobby, she did not plausibly plead that it was necessary. Her
own doctors’ letters establish two medical necessities. First,
while she can “walk[ ] (with the assistance of a cane) the short
distance from her car to the lobby,” “her use of a rolling walker
is a medical necessity” to get from the lobby to and from her
apartment. Am. Compl. Exs. 7, 9. So she needs “ready access
to her walker or scooter.” Id. Ex. 9. Second, she needs to
“[m]inimiz[e] her periods of unsupported standing.” Id. Ex. 7.
“Even just standing, for periods as brief as 5 minutes, result[s]
in the occurrence of progressive symptoms.” Id.All four of the proffered alternatives, however, satisfy both
of these medical needs. Staff could retrieve the walker from
21
storage to the lobby, while Vorchheimer sits on a bench, or re-
trieve it before she arrives if she calls ahead. Am. Compl. ¶¶ 30,
33.a & Exs. 5, 8. A staffer could bring the walker to her car. Id.
¶ 33.b & Ex. 8. The doorman could fold the walker, load it into
her car, and unload and unfold it upon her return. Id. ¶ 33.d &
Ex. 8. Or she could park in the indoor valet-parking garage and
leave her walker there. Id. ¶ 33.c & Ex. 8. On their face, all four
of these alternatives offer her “ready access to her walker or
scooter” and “[m]inimiz[e] her periods of unsupported stand-
ing.” Id. Exs. 7, 9. Not one requires her to stand without sup-
port.
Nor, though Vorchheimer amended her complaint, did she
plausibly plead the contrary. Her only suggestion that the alter-
natives are inadequate is half a sentence in a footnote at the
very end of her brief, citing three paragraphs of her amended
complaint. Br. 21 n.5 (citing Am. Compl. ¶¶ 34-35, 39). The
cited paragraphs allege at least four occasions on which she left
her walker in the lobby and had to stand and wait for front-desk
staff to retrieve it. But in none of the examples she gives did
she seek to use The Philadelphian’s alternatives; each time, she
neither used the bench nor called ahead. See Am. Compl. ¶ ¶ 35,
39. She alleged no problem with calling ahead to the front desk,
having a doorman bring the walker to her, having a doorman
load and unload the walker from her car, or using valet parking.
Nor did she allege that she ever tried any of these options.
Vorchheimer also alleged a third medical necessity: pre-
serving her “functional independence.” Am. Compl. ¶¶ 20, 23,
32, 34, 48, 69, 70, 78. She claims that if she cannot herself get
the walker in the lobby, she might have to wait for it, increasing
22
her stress. But those allegations of necessity are conclusory and
contradicted by her own exhibits. Her doctors’ letters do not
state that independent access is necessary. On the contrary, Dr.
Palevsky repeatedly described it as “preferable” or “medically
preferable.” Id. Exs. 9, 12. It causes Vorchheimer less stress,
which her doctor described as desirable. “When faced with two
potential solutions, the one that permits the patient to retain her
independence is the better option.” Id. Dr. Palevsky was care-
ful to distinguish her needs from her preferences. So are we.
Even if it were necessary for Vorchheimer to retrieve her
walker independently upon her return, a satisfactory option
was on the table. Idzal offered to let her park in the indoor
valet-parking garage, “where [she] could leave [her] rolling
walker in close proximity to the pick-up and drop-off spot for
[her] vehicle.” Am. Compl. Ex. 8. Vorchheimer’s only quibble
with the valet-parking option is that she would have to “relin-
quish her coveted, designated outdoor parking space.” Am.
Compl. ¶ 33.c. But nothing in the Act gives her a right to her
preferred option. Wants are not needs.
One final note: If a civil-rights complaint fails to state a
claim, a district court must grant leave to amend the complaint
unless amendment would be futile or inequitable. Mullin v.
Balicki, 875 F.3d 140, 151 (3d Cir. 2017). But here, Vorchhei-
mer had already amended her complaint once and did not move
to amend again or suggest what she might add. The District
Court concluded that further amendment would be futile. We
agree.
23
*****
Carol Vorchheimer preferred to have access to her walker
without having to wait for a staffer. But she did not plausibly
plead that she needed to leave it in the lobby. To enjoy her
home, she needed access to her walker without having to stand
for minutes. She pleaded four alternatives on offer that, on their
face, satisfied those needs. And she attached doctors’ letters
that distinguish her needs from her preferences. Because the
Act guarantees her only a “reasonable accommodation” that
satisfies her needs, not the particular accommodation that she
wanted, we will affirm.
24