In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑3249
BEVERLY WIGGINTON, RICHARD WIGGINTON, and TRINITY
LOVE WIGGINTON,
Plaintiffs-‐‑Appellants,
v.
BANK OF AMERICA CORPORATION, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 C 50162 — Frederick J. Kapala, Judge.
____________________
ARGUED OCTOBER 9, 2014 — DECIDED OCTOBER 16, 2014
____________________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge. Beverly and Richard Wig-‐‑
ginton receive disability benefits from the Social Security
Administration. They applied to Bank of America for a
mortgage loan and said that they would use the disability
benefits to repay. The Bank then asked for information from
their physicians, or the Administration, showing that the
benefits would last for at least three years. When no such in-‐‑
2 No. 13-‐‑3249
formation was forthcoming, the Bank declined to make the
loan. An administrative complaint and negotiations fol-‐‑
lowed; by the time the Bank decided to advance the money,
the property’s owner had pulled out of the transaction.
The Wiggintons contend in this suit that the Bank’s de-‐‑
mand for information violated the Fair Housing Act, the
Americans with Disabilities Act, and the Rehabilitation Act.
The district court recruited counsel to assist the Wiggintons,
and the complaint was twice amended to add details and
new defendants, including multiple federal agencies. The
court eventually dismissed the suit on the pleadings, 2013
U.S. Dist. LEXIS 129337 (N.D. Ill. Sept. 11, 2013), ruling that
the Wiggintons had not narrated a plausible complaint of
discrimination. The court added that the Equal Credit Op-‐‑
portunity Act, 15 U.S.C. §1691(b)(2), provides that it does not
constitute discrimination (at least for the purpose of that
statute) for a bank to collect information about “whether the
applicant’s income derives from any public assistance pro-‐‑
gram if such inquiry is for the purpose of determining the
amount and probable continuance of income levels, credit
history, or other pertinent element of credit-‐‑worthiness”.
It does not take much to allege discrimination, see
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Swanson v.
Citibank, N.A., 614 F.3d 400 (7th Cir. 2010), but one essential
allegation is missing from the Wiggintons’ complaint: that
someone else has been treated differently. The Bank appar-‐‑
ently asks everyone who applies for a loan to provide a good
reason for it to think that the applicant’s current income will
continue. The Bank’s operations manuals, and the advice it
has received from several federal agencies, including the
Department of Housing and Urban Development and the
No. 13-‐‑3249 3
Federal Housing Administration, which was to insure the
loan, set the three-‐‑year-‐‑continuation standard, and these
documents also call on banks to collect information from any
applicant who relies on governmental-‐‑assistance programs
for repayment. See HUD Handbook 4155.1 §§ 4.D.1.a,
4.D.2.k, 4.E.3.c. If the Bank regularly asks non-‐‑disabled ap-‐‑
plicants to show that their income can be expected to contin-‐‑
ue for at least three years, there has been no discrimination.
Plaintiffs’ complaint and appellate brief suppose that
federal law blocks a bank from asking either the nature of
the disability (from which the likely duration of benefits can
be inferred) or the probability that the paying agency will
continue the benefits. Yet the statutes forbid discrimination,
not requests for knowledge that will enable banks to apply
uniform standards. Section 805(a) of the Fair Housing Act,
42 U.S.C. §3605(a), makes it unlawful for anyone in the resi-‐‑
dential real-‐‑estate business “to discriminate against any per-‐‑
son in making available such a transaction … because of …
handicap”. The Rehabilitation Act, 29 U.S.C. §794, says that
“[n]o otherwise qualified individual with a disability …
shall, solely by reason of her or his disability, be excluded
from the participation in … or be subjected to discrimination
under any program or activity receiving Federal financial
assistance”. Title III of the Americans with Disabilities Act,
42 U.S.C. §12182(a) provides that “[n]o individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of” places of public accommodation. None
of these statutes forbids asking applicants for information
that will be used to apply the same standards that govern
non-‐‑disabled persons.
4 No. 13-‐‑3249
If all disability benefits were locked in for life, then a re-‐‑
quest for information might be gratuitous. Yet Social Securi-‐‑
ty disability benefits depend on the continuation of the disa-‐‑
bility—and plaintiffs, who have declined to reveal the nature
of their disabilities, do not contend that the Bank knew (or
should have known) that their entitlement to benefits was
bound to last indefinitely. Benefits based on obesity, for ex-‐‑
ample, lapse if the recipient loses weight and regains ability
to work. Benefits based on many conditions can end if im-‐‑
proved medication (or a person’s improved ability to stick to
a schedule of medication) improves his condition. The recip-‐‑
ient’s level of education can be important; if a person goes
back to school and expands the range of jobs he can do, ben-‐‑
efits may cease.
Disability benefits under private programs likewise can
change. One kind of program that employers provide as a
fringe benefit awards payments for two years if the person
can no longer do his job, but after two years only if the per-‐‑
son cannot perform any job in the economy. Benefits under a
program such as this can end without any change in the re-‐‑
cipient’s education or physical condition. The possibility of
such changes makes it prudent for potential lenders to know
what kind of disability an applicant has and how that disa-‐‑
bility is treated by the public or private payor. That’s why
the Equal Credit Opportunity Act permits requests for in-‐‑
formation about all public-‐‑assistance benefits. A potential
lender likewise wants to know what kind of job an applicant
holds, for how long, and whether that job is likely to last—
for that matter, whether the employer is likely to remain in
business. Learning about the probable duration of disability
benefits is no different in principle.
No. 13-‐‑3249 5
Because the complaint does not allege that plaintiffs have
been treated worse than other applicants for loans, the dis-‐‑
trict court properly dismissed the suit. Plaintiffs observe
that, three years after denying their application, the Bank
settled a suit by the Department of Justice and promised not
to ask for the sort of information it sought from plaintiffs.
Under the settlement, the Bank will use an applicant’s histo-‐‑
ry of receiving benefits as sufficient reason to think that they
will continue. Settlements do not affect third parties’ rights,
however. Litigation may be settled for business reasons.
Plaintiffs’ suit depends on the three statutes they have in-‐‑
voked, not on subsequent settlements.
As for the claims against the federal agencies: Plaintiffs
concede that the district court properly dismissed them but
ask for permission to amend their complaint a third time.
Even now, however, they do not explain what theory could
produce a remedy against the federal agencies or how they
could avoid a defense of sovereign immunity. The district
court did not abuse its discretion in bringing this litigation to
a close.
AFFIRMED