Petition for Writ of Certiorari — The School of the Ozarks, Inc., dba College of the Ozarks, Petitioner v. Joseph R. Biden, Jr., President of the United States, et al.

NO. __________

IN THE

Supreme Court of the United States

THE SCHOOL OF THE OZARKS, INC. D/B/A COLLEGE OF

THE OZARKS,

Petitioner,

v.

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE UNITED STATES; U.S. DEPARTMENT

OF HOUSING & URBAN DEVELOPMENT; MARCIA L.

FUDGE, IN HER OFFICIAL CAPACITY AS SECRETARY OF

U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT; DEMETRIA MCCAIN, IN HER OFFICIAL CAPACITY

AS PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR FAIR

HOUSING & EQUAL OPPORTUNITY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN J. BURSCH

Counsel of Record

MATTHEW S. BOWMAN

JULIE MARIE BLAKE

JACOB P. WARNER

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Petitioner

i

QUESTIONS PRESENTED

The Fair Housing Act (FHA) prohibits sex-based

discrimination in housing policy or speech, and it

applies to college dorms. As recently as 2020, the Department of Housing and Urban Development (HUD)

denied that “sex” in the FHA’s non-discrimination

provision covers gender identity, allowing schools like

Petitioner College of the Ozarks to assign dormitories

based on biological sex and to communicate that

policy to its students. All that changed in 2021. In

response to an Executive Order from President Biden

declaring that the FHA now prohibits discrimination

“on the basis of gender identity,” HUD issued a Directive mandating “full enforcement” of this new prohibition. President Biden characterized the Directive as a

“rule change” that “finally” enforced the FHA.

HUD declined to provide notice and comment, as

both the FHA and APA require. But when the College

challenged the Directive, the lower courts dismissed,

holding that the College suffered no Article III injury

because there was no imminent threat of enforcement

and the College had not articulated a concrete injury.

The questions presented are:

1. Whether a notice-and-comment violation, on

its own, can establish Article III standing for a

regulated entity within the applicable zone of

interests, as the Fifth, Sixth, Ninth, D.C. and Federal

Circuits have held, or whether an additional injury is

required, as the Eighth Circuit held here.

2. Whether a regulated entity has Article III

standing to challenge an illegal regulation where the

entity (a) arguably falls with the rule’s plain scope,

and (b) there is a risk of enforcement.

ii

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE

Petitioner is The School of the Ozarks, Inc. doing

business as College of the Ozarks. Petitioner is a nonprofit corporation with no parent company or stock.

Respondents are Joseph R. Biden, Jr., in his

official capacity as President of the United States;

U.S. Department of Housing & Urban Development;

Marcia L. Fudge in her official capacity as Secretary

of the U.S. Department of Housing & Urban

Development; Demetria McCain, in her official

capacity as Principal Deputy Assistant Secretary for

Fair Housing and Equal Opportunity of the U.S.

Department of Housing & Urban Development.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Eighth Circuit, No.

21-2270, The School of the Ozarks, Inc. d/b/a College

of the Ozarks v. Biden, et al., judgment entered July

27, 2022, en banc review denied September 30, 2022.

Mandate issued October 7, 2022.

U.S. District Court for the Western District of

Missouri, No. 6:21-cv-03089, judgment entered June

7, 2021.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE .............................. ii

LIST OF ALL PROCEEDINGS ................................. ii

APPENDIX TABLE OF CONTENTS ....................... v

TABLE OF AUTHORITIES .................................... vii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISION ..... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 5

A. College of the Ozarks ...................................... 5

B. The FHA regulatory scheme ........................... 6

C. The regulatory change and threat .................. 7

D. The aftermath ................................................ 11

E. Proceedings below ......................................... 11

REASONS FOR GRANTING THE WRIT............... 15

I. This Court should grant review to resolve a 51 circuit split over regulatory standing. ............ 17

A. The FHA and APA both required HUD to

complete the notice-and-comment process

before issuing the Directive. ......................... 17

B. The notice-and-comment process protects

regulated entities like the College. ............... 19

iv

C. The Fifth, Sixth, Ninth, D.C., and Federal

Circuits have held that being deprived of

notice and comment is itself a concrete

injury sufficient for Article III standing. ...... 20

D. The College does not assert a procedural

right in vacuo. ................................................ 26

II. The College has standing under this Court’s

precedents to challenge the Directive itself. ...... 28

III.This case is an ideal vehicle for resolving the

questions presented. ........................................... 35

CONCLUSION ......................................................... 36

v

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Eighth Circuit

Opinion in 21-2270

Issued July 27, 2022 ................................................ 1a

United States Court of Appeals

for the Eighth Circuit

Order Denying Petition for Rehearing En Banc

in 21-2270

Issued September 30, 2022 .................................... 23a

United States District Court for the Western

District of Missouri, Southern Division

Order Dismissing Motion for Temporary

Restraining Order and Preliminary Injunction

and dismissing Plaintiff’s Complaint

in 6:21-cv-03089

Issued June 4, 2021................................................ 24a

United States District Court for the Western

District of Missouri, Southern Division

Judgment in 6:21-cv-03089

Issued June 7, 2021................................................ 35a

Memorandum dated February 11, 2021 Re:

Implementation of Executive Order 13988 on the

Enforcement of the Fair Housing Act ................... 36a

Executive Order 13988 of January 20, 2021:

Preventing and Combating Discrimination on

the Basis of Gender Identity and Sexual

Orientation ............................................................. 42a

vi

HUD.gov Webpage: FHIP Education and

Outreach Initiative – Tester Training .................. 46a

HUD.gov Webpage: Contact FHIP

Organizations ......................................................... 48a

National Fair Housing Month Presidential

Proclamation .......................................................... 50a

vii

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967)................................ 16, 29, 32

Action for Children’s Television v. F.C.C.,

59 F.3d 1249 (D.C. Cir. 1995) ............................ 32

Appalachian Power Company v. EPA,

208 F.3d 1015 (D.C. Cir. 2000) .......................... 15

Azar v. Allina Health Services,

139 S. Ct. 1804 (2019)........................................ 18

Bostock v. Clayton County,

140 S. Ct. 1731 (2020)........................................ 34

Cawthorn v. Amalfi,

35 F.4th 245 (4th Cir. 2022) .............................. 26

Chrysler Corporation v. Brown,

441 U.S. 281 (1979)............................................ 19

Clarke v. Securities Industry Association,

479 U.S. 388 (1987)............................................ 23

Collins v. Yellen,

141 S. Ct. 1761 (2021)........................................ 34

Community Nutrition Institute v. Young,

818 F.2d 943 (D.C. Cir. 1987) ............................ 17

Day v. Bond,

500 F.3d 1127 (10th Cir. 2007).......................... 34

viii

Dismas Charities, Inc. v. United States

Department of Justice,

401 F.3d 666 (6th Cir. 2005) ....................... 21, 22

East Bay Sanctuary Covenant v. Trump,

932 F.3d 742 (9th Cir. 2018) ............................. 23

Fair Housing Center of Washtenaw County, Inc.

v. Town & Country Apartments,

No. 07-10262, 2009 WL 497402 (E.D. Mich.

Feb. 26, 2009) ....................................................... 8

FEC v. Cruz,

142 S. Ct. 1638 (2022)........................................ 18

Griswold v. Driscoll,

616 F.3d 53 (1st Cir. 2010) ................................ 34

Lath v. Oak Brook Condominium Owners’

Association,

No. 16-CV-463-LM, 2017 WL 1051001 (D.

N.H. Mar. 20, 2017) ............................................. 7

Little Sisters of the Poor v. Pennsylvania,

140 S. Ct. 2367 (2020)........................................ 33

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).................................... passim

Massachusetts v. EPA,

549 U.S. 497 (2007)...................................... 14, 20

MCI Telecommunications Corporation v. FCC,

57 F.3d 1136 (D.C. Cir. 1995) ............................ 19

ix

Mendoza v. Perez,

754 F.3d 1002 (D.C. Cir. 2014) .......................... 23

Miller v. 270 Empire Realty LLC,

No. 09-CV-2857, 2012 WL 1933798 (E.D.N.Y.

2012) ..................................................................... 8

Neithamer v. Brenneman Property Services, Inc.,

81 F. Supp. 2d 1 (D.D.C. 1999) ............................ 8

Northwest National Bank v. United States

Department of the Treasury,

917 F.2d 1111 (8th Cir. 1990) ........................... 17

Ordelli v. Mark Farrell & Associates,

No. 3:12-CV-1791-SI, 2013 WL 1100811 (D.

Or. 2013) .............................................................. 8

Sackett v. EPA,

566 U.S. 120 (2012)............................................ 32

Salazar v. Buono,

559 U.S. 700 (2010)............................................ 26

Salmon Spawning & Recovery Alliance v. United

States Customs & Border Patrol,

550 F.3d 1121 (Fed. Cir. 2008) .......................... 25

Sierra Club v. EPA,

699 F.3d 530 (D.C. Cir. 2012) ........................ 4, 24

Smith v. Avanti,

249 F. Supp. 3d 1194 (D. Colo. 2017) .................. 7

Smith v. Mission Associates Ltd. Partnership,

225 F. Supp. 2d 1293 (D. Kan. 2002) .................. 8

x

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016)............................................ 28

Summers v. Earth Island Institute,

555 U.S. 488 (2009)............................................ 26

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014)...................................... 14, 28

Swinton v. Fazekas,

No. 06-CV-6139T, 2008 WL 723914

(W.D.N.Y. Mar. 14, 2008) .................................... 8

Texas v. EEOC,

933 F.3d 433 (5th Cir. 2019) ................... 3, 20, 21

Thomas v. Osegueda,

No. 2:15-CV-0042-WMA, 2015 WL 3751994

(N.D. Ala. June 16, 2015) .................................... 8

Thomas v. Wright,

No. 2:14-CV-01604-RDP, 2014 WL 6983302

(N.D. Ala. Dec. 10, 2014) ..................................... 8

Trump v. New York,

141 S. Ct. 530 (2020).......................................... 26

United States Army Corps of Engineers v.

Hawkes Company,

578 U.S. 590 (2016)............................................ 32

United States v. University of Nebraska at

Kearney,

940 F. Supp. 2d 974 (D. Neb. 2013) .................... 7

xi

Warth v. Seldin,

422 U.S. 490 (1975)............................................ 34

Statutes

28 U.S.C. 1254(1) ....................................................... 1

28 U.S.C. 1331 ............................................................ 1

28 U.S.C. 1346(a) ....................................................... 1

28 U.S.C. 1361 ............................................................ 1

42 U.S.C. 3602 ............................................................ 7

42 U.S.C. 3604 ...................................................... 6, 29

42 U.S.C. 3607 .................................................... 12, 33

42 U.S.C. 3610 ............................................................ 7

42 U.S.C. 3611–14 ...................................................... 7

42 U.S.C. 3613 ............................................................ 7

42 U.S.C. 3614 ............................................................ 7

42 U.S.C. 3614a ............................................ 10, 13, 17

42 U.S.C. 3631 ...................................................... 7, 31

5 U.S.C. 553 ........................................................ 10, 17

Other Authorities

Elizabeth Redden, Christian College Sues to

Keep LGBTQ+ Housing Policy, Inside Higher

Ed (Sept. 8, 2021)............................................... 29

xii

Testimony of Marcia Fudge, U.S. House Comm.

on the Budget, Hr’g on U.S. Dep’t of Hous.

and Urban Development’s Fiscal Year 2022

Budget (June 23, 2021) ...................................... 30

Regulations

24 C.F.R. 100.20 ......................................................... 7

24 C.F.R. 100.50 ................................................... 6, 29

24 C.F.R. 103.215 ....................................................... 7

24 C.F.R. 103.9 ........................................................... 7

24 C.F.R. 11.1(b) (2020) ............................... 10, 13, 17

24 C.F.R. 11.2 (2020) ................................................ 17

24 C.F.R. 11.8 (2020) ................................................ 17

24 C.F.R. 180.671 ....................................................... 7

24 C.F.R. 180.705 ....................................................... 7

Exec. Order No. 13988, Preventing and

Combating Discrimination on the Basis of

Gender Identity or Sexual Orientation, 86

Fed. Reg. 7023 (Jan. 20, 2021) ............................ 8

Making Admission or Placement Determinations

Based on Sex in Facilities Under Community

Planning and Development Housing

Programs, 85 Fed. Reg. 44,811 (July 24,

2020) ..................................................................... 8

xiii

Proclamation No. 10,177, 86 Fed. Reg. 19,775

(Apr. 11, 2021) ................................................... 18

1

DECISIONS BELOW

The district court’s order dismissing Plaintiff’s

Motion for a Temporary Restraining Order and

Preliminary Injunction and dismissing Plaintiff’s

Complaint is unreported but available at 2021 WL

2301938 (W.D. Mo. June 4, 2021) and reprinted in the

Appendix (“App.”) at App.24a.

The district court’s judgment is reprinted in the

Appendix at App.35a.

The Eighth Circuit’s opinion affirming the district

court’s order is reported at 41 F.4th 992 (8th Cir.

2022) and reprinted at App.1a. The Eighth Circuit’s

order denying rehearing en banc is unreported but

available at 2022 WL 4589688 (8th Cir. Sept. 30,

2022) and reprinted at App.23a.

STATEMENT OF JURISDICTION

The Eighth Circuit entered judgment on July 22,

2022. Lower courts had jurisdiction under 28 U.S.C.

1331, 1346(a), and 1361. This Court has jurisdiction

under 28 U.S.C. 1254(1).

PERTINENT CONSTITUTIONAL PROVISION

Article III, § 2, ¶ 1 of the United States

Constitution states:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this

Constitution [and] the Laws of the United

States … to Controversies to which the

United States shall be a Party.

2

INTRODUCTION

In the words of dissenting Judge Grasz below,

“This case highlights the corrosive effect on the rule

of law when important changes in government policy

are implemented outside the normal administrative

process,” App.16a, that is, without required notice

and comment. Yet the panel majority blessed that

corrosion, holding that because Petitioner College of

the Ozarks had not yet faced enforcement proceedings, it lacked standing to challenge an unlawful

government rule change. That decision conflicts with

decisions of five circuits and with this Court’s

standing precedents and warrants review.

In February 2021—without notice or comment—

the Department of Housing and Urban Development

(HUD) issued a “Directive” redefining the sex discrimination provisions in the Fair Housing Act (FHA)

to include gender identity. App.36a–41a. The

Directive mandated “full enforcement” by federal

officials and external enforcement grantees. App.40a.

President Biden precipitated this action by issuing an

executive order calling for the FHA to be reinterpreted, App.42a–45a, and he hailed the Directive’s

issuance as a “rule change.” App.51a.

This rewriting of the FHA was an immediate

problem for College of the Ozarks. The College is a

Christian educational institution, and while students

need not be of a particular religion to attend, they

must agree to follow the College’s code of conduct,

including dormitory policies. Because the College’s

faith teaches that sex is based on male-female biology,

not gender identity, the College assigns its dorms,

roommates, and intimate spaces by sex and communicates that policy to students.

3

The College sued, bringing claims under the First

Amendment and Religious Freedom Restoration Act

(RFRA) and also alleging that HUD’s failure to

engage in the notice-and-comment process violated

both the FHA and the Administrative Procedure Act

(APA). That failure is significant, because the government admits that the Directive does not discuss or

consider student housing at religious colleges, or how

the Directive would interact with other statutes like

Title IX or RFRA. CA8 Appellees’ Br.20, 23, 27–29.

Yet the district court dismissed the College’s

complaint, and a 2-1 Eighth Circuit panel affirmed,

holding that the Directive only affects government

enforcers, not regulated entities; does not say how

RFRA or the Free Exercise Clause may limit the

Directive’s enforcement; and thus does not create an

“imminent threat” to the College. App.8a–13a. Most

concerning, the majority held that being deprived of a

procedural right—notice and opportunity for comment—is not an injury in fact unless the regulated

entity can show an additional “concrete harm.”

App.12a.

The latter conclusion conflicts directly with

decisions of the Fifth, Sixth, Ninth, D.C., and Federal

Circuits. For example, in Texas v. EEOC, 933 F.3d

433 (5th Cir. 2019), Texas similarly sued under the

APA, challenging an agency’s guidance about

employers’ use of criminal records in hiring. The Fifth

Circuit correctly held that Texas suffered a “procedural injury jeopardizing its concrete interests”: a

“violation of the APA’s notice-and-comment requirements.” Id. at 447. That court did not require Texas

as a regulated entity to prove any additional harm.

4

Similarly, in Sierra Club v. EPA, 699 F.3d 530

(D.C. Cir. 2012), the Sierra Club filed an APA challenge against the EPA, which had declared that the

agency satisfied certain obligations imposed on it by

the Clean Air Act. After determining that Sierra Club

members lived within zones affected by the agency’s

regulations (or lack thereof), the D.C. Circuit held

that the Club had standing, since the APA’s noticeand-comment requirements “are plainly designed to

protect the sort of interest alleged.” Id. at 533. Other

circuits are to the same effect, and this Court should

resolve the 5-1 circuit split.

The Eighth Circuit’s “imminent threat” requirement is just as much of an outlier as its heightened

standard for a regulated entity to challenge the

government’s failure to provide notice and comment.

When a regulated entity falls within the scope of a

new, unlawful regulation, and the government does

not disavow an enforcement action, this Court and the

courts of appeal routinely hold that the regulated

entity has both standing to challenge the regulation

and redress in the form of a court ruling. That conflict

should also be resolved.

Besides destroying uniformity in the circuits’

regulatory standing jurisprudence, the holding below

is deeply troubling. “An agency’s issuance of a

guidance document that fails to adhere to the proper

administrative procedures … skirts the rule of law

and undermines our values.” App.16a–17a (Grasz, J.,

dissenting). “This is especially true where regulated

entities” like the College “are placed under a sword of

Damocles but are denied access to the courts because

the sword has not yet fallen.” App.17a. This Court

should grant the petition, reverse, and remand for a

merits determination.

5

STATEMENT OF THE CASE

A. College of the Ozarks

College of the Ozarks is a Christian undergraduate institution in Missouri, founded in 1906.

V. Compl. ¶ 30. As a Christian college, it allows all

students to have a debt-free education by not charging

tuition. Id. ¶ 35. A student need not be of a particular

religion, sexual orientation, or gender identity to

study or live at the College, provided the student

agrees to abide by the College’s religiously informed

code of conduct. Id. ¶¶ 42–44, 54–67. Under the

College’s policies and code of conduct, a student’s sex

is the student’s biological sex determined at birth, and

students agree to refrain from sexual conduct outside

a marriage between one man and one woman. Id.

¶¶ 70–72.

The College’s code of conduct specifies that residence halls are single sex and assigned by biological

sex, not gender identity. V. Compl. ¶¶ 80–91. In

student housing, the College limits access to halls,

communal showers, and bathrooms by biological sex.

Ibid. The College regularly communicates these policies to existing and aspiring students. Id. ¶¶ 92–111.

As explained below, the government’s rule change

now deems the College’s housing policies to be

discriminatory and its speech unlawful. By interpreting the FHA to address sexual orientation and gender

identity, the government forces colleges to allow

males to occupy female dorms—and qualify for

roommate selection—when they identify as female.

The government also forbids the College from

communicating its housing policies—and from even

saying that it would prefer its own policies to the

government’s new policies.

6

Were the College to comply with the government’s

new edict, the College would suffer immeasurable

harm to its religious exercise, its free speech, and its

students’ privacy interests. V. Compl. ¶¶ 249–55.

Abandoning its code of conduct and opening female

intimate spaces to biological men jeopardizes the

College’s ability to function, harms students, and

dissuades them from attending the College. Ibid. The

College would also incur regulatory compliance costs

including the time, money, and speech necessary to

change its policies, statements, trainings, and signage, and to renovate its buildings. Id. ¶ 252.

Yet if the College disregards the government’s

rewritten FHA, it can expect that, as the Directive

requires, the FHA will be “fully enforce[d]” against

the College. App.36a–38a, 40a. This includes investigations, enforcement actions, and litigation that will

likely impose costly discovery and legal fees, millions

in penalties and punitive damages if the FHA is

upheld, and even criminal penalties against the

College and its employees. V. Compl. ¶¶ 158–180,

259. And the College’s liability under the Directive

grows each day as the College continues to speak

about and apply its housing policies. Id. ¶¶ 105–111.

B. The FHA regulatory scheme

Congress enacted the Fair Housing Act in 1968

and amended it in 1974 to prohibit housing discrimination based on race, religion, national origin, or sex.

42 U.S.C. 3604(a) & (b); 24 C.F.R. 100.50(b)(1)–(3).

The FHA and its implementing regulations also

restrict the speech of covered entities, prohibiting any

“statement[s]” and “notice[s]” expressing a policy or

rule of prohibited discrimination. 42 U.S.C. 3604(c),

24 C.F.R. 100.50(b)(4)–(5).

7

The FHA applies to “dwelling[s]” throughout the

nation—even if the owner receives no federal funds.

42 U.S.C. 3602(b); 24 C.F.R. 100.20. Courts and the

Department of Justice have thus applied these laws

to private college student housing. E.g., United States

v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 983

(D. Neb. 2013). Anyone can file a complaint and

trigger a government investigation into an alleged

FHA violation, and anyone can bring a private lawsuit, even “testers,” who are funded by HUD to test

for compliance with the law but have no interest in

obtaining housing. 42 U.S.C. 3610(a)(1)(A)(i), 3613,

3614; 24 C.F.R. 103.9 et seq.

Penalties for violating the FHA and its

implementing regulations include significant civil

fines and investigatory demands. E.g., 42 U.S.C.

3611–14; 24 C.F.R. 103.215, 180.671, 180.705. The

FHA and its regulations provide for unlimited

compensatory and punitive damages, as well as fines

of $23,011 for a first violation, $57,527 for a second

violation, and $115,054 for a third or continuing

violation. 24 C.F.R. 180.671. The FHA also threatens

criminal penalties, including prison time, if an incident involves the use of force, 42 U.S.C. 3631, such as

if security staff must enforce a housing policy.

C. The regulatory change and threat

For decades, courts consistently held that the

FHA does not address sexual orientation or gender

identity. E.g., Smith v. Avanti, 249 F. Supp. 3d 1194,

1201 (D. Colo. 2017) (sexual orientation or gender

identity); Lath v. Oak Brook Condo. Owners’ Ass’n,

No. 16-CV-463-LM, 2017 WL 1051001, at *4 n.5 (D.

N.H. Mar. 20, 2017) (sexual orientation); Thomas v.

Osegueda, No. 2:15-CV-0042-WMA, 2015 WL

8

3751994, at *4 (N.D. Ala. June 16, 2015) (same);

Thomas v. Wright, No. 2:14-CV-01604-RDP, 2014 WL

6983302, at *3 (N.D. Ala. Dec. 10, 2014) (same);

Ordelli v. Mark Farrell & Assocs., No. 3:12-CV-1791SI, 2013 WL 1100811, at *2 (D. Or. 2013) (same);

Miller v. 270 Empire Realty LLC, No. 09-CV-2857,

2012 WL 1933798, at *5 (E.D.N.Y. 2012) (same); Fair

Hous. Ctr. of Washtenaw Cnty., Inc. v. Town &

Country Apts., No. 07-10262, 2009 WL 497402, at *3

n.1 (E.D. Mich. Feb. 26, 2009) (same); Swinton v.

Fazekas, No. 06-CV-6139T, 2008 WL 723914, at *5

(W.D.N.Y. Mar. 14, 2008) (same); Smith v. Mission

Assocs. Ltd. P’ship, 225 F. Supp. 2d 1293, 1299 (D.

Kan. 2002) (same); Neithamer v. Brenneman Prop.

Servs., Inc., 81 F. Supp. 2d 1, 4 (D.D.C. 1999) (same).

Indeed, as recently as 2020, HUD said that “to

consider biological sex in placement and accommodation decisions in single-sex facilities” is “permitted” by

the FHA. Making Admission or Placement Determinations Based on Sex in Facilities Under Community

Planning and Development Housing Programs, 85

Fed. Reg. 44,811, 44,812 (July 24, 2020).

That all changed when, on the day that he took

office, President Biden issued an Executive Order

specifying that the Fair Housing Act, among other

statutes, prohibits discrimination based on sexual

orientation and gender identity, and he ordered

agencies to implement the policy. Exec. Order No.

13988, Preventing and Combating Discrimination on

the Basis of Gender Identity or Sexual Orientation, 86

Fed. Reg. 7023 (Jan. 20, 2021), App.42a–45a. Only

three weeks later—without notice or comment—HUD

issued a “Directive” titled “Implementation of Executive Order 13988 on the Enforcement of the Fair

Housing Act” (Feb. 11, 2021). App.36a–41a.

9

The Directive does not mince words. It first notes

that President Biden’s Executive Order “directs every

federal agency to assess all agency actions taken

under federal statutes that prohibit sex discrimination and to fully enforce those statutes to combat

discrimination based on sexual orientation and

gender identity.” App.36a–37a. The Directive then

explains that HUD “has concluded that the Fair

Housing Act’s sex discrimination provisions …

prohibit discrimination because of sexual orientation

and gender identity.” App.37a. As a result, the

Directive continues, HUD’s enforcement officials were

required to “fully enforce the Fair Housing Act to

prohibit discrimination because of sexual orientation

and gender identity.” Ibid.

The Directive accuses many “civic institutions”—

including “the workplace,” “the marketplace,” and,

most pertinent here, “places of education”—of denying “persons the freedom to express a gender that

defies norms.” App.37a. And the Directive declares

that “this discrimination is real and urgently requires

enforcement action.” Ibid. (emphasis added). Indeed,

the Directive commits HUD to the “eradication” of

contrary policies like the College’s. App.41a.

Eight times, the Directive demands “full” enforcement of its new standard. App.36a–41a. And it orders

HUD’s investigatory office to “accept for filing and

investigate all complaints of sex discrimination,

including discrimination because of gender identity or

sexual orientation.” App.39a (emphasis added). It also

instructs state and local agencies that accept HUD

funds to enforce the FHA to ensure it applies to

“gender identity and sexual orientation.” App.40a.

10

The Directive next addresses organizations that

receive grants to provide FHA testers who pose as

prospective renters or buyers. It requires these

groups, too, to “interpret sex discrimination under the

Fair Housing Act to include discrimination because of

sexual orientation and gender identity.” App.40a. And

the Directive expects these organizations to “support”

“the full enforcement of the Fair Housing Act by …

detecting discriminatory conduct through investigation and testing[ ] and assisting persons to file

complaints and obtain relief through legal and

administrative forums.” Ibid.

In sum, the Directive promises to collaborate

with its state and local and testing partners “to fully

engage our fair housing enforcement, advocacy, and

public education efforts across the housing market to

prevent and combat discrimination because of sexual

orientation and gender identity.” App.41a (emphasis

added).

To commemorate National Fair Housing Month,

President Biden trumpeted the Directive as a “rule

change” made “to ensure that the law finally guards

against discrimination targeting LGBTQ+ Americans.” V. Compl. ¶¶ 212–13. Yet no advance public

notice or an opportunity for comment was issued

before promulgating the directive. Id. ¶¶ 2, 222. That

omission was illegal three ways. The FHA requires

notice and comment for “all rules” promulgated about

it, including interpretive rules like the Directive. See

42 U.S.C. 3614a. The APA requires comment on all

legislative or substantive rules. 5 U.S.C. 553(b)–(d).

And when HUD issued the Directive, a federal APA

regulation required notice and comment for “significant guidance documents,” 24 C.F.R. 11.1(b) (2020),

which the Directive is.

11

D. The aftermath

The Directive requires the College to reverse its

housing policies for 1,300 students. V. Compl. ¶¶ 229–

46. And, unless the Directive is enjoined, it makes the

College cease statements of its policies, preventing it

from following through on ongoing plans and communications for student housing consistent with its

religious beliefs. Id. ¶¶ 5, 8, 106, 229–46. This

jeopardizes the College’s ability to function, causes

emotional harm to students who rely on the College’s

housing policies, and dissuades Christian students

from attending the College. Id. ¶ 250.

E. Proceedings below

The College filed suit in April 2021 and moved for

a preliminary injunction. The District Court denied a

preliminary injunction and, without a motion from

the Government, dismissed the case for lack of standing. App.24a–34a. That court recharacterized the

Directive as a non-binding policy statement that presents no credible enforcement threat. App.30a–32a.

A 2-1 Eighth Circuit panel affirmed. Addressing

the FHA and APA’s notice-and-comment requirements, the majority said that the College lacked

Article III standing to vindicate its rights. The

majority described HUD’s actions as merely violating

a “procedural right unconnected to the [College]’s own

concrete harm.” App.12a (cleaned up). “[T]he absence

of notice and opportunity to comment” on the

Directive “does not endanger a concrete interest of the

College,” according to the panel, since the Directive

“does not require HUD to determine that the College’s

housing policies violate federal law,” ibid., only to

launch an investigation if someone complains.

12

The majority also said that the College lacks

standing to challenge the Directive’s substance

because the Directive has no impact on the entities it

regulates; it “does not direct the College to do anything, and it does not expose the College to any legal

penalties for noncompliance,” App.11a—other than

six-figure fines and possible criminal penalties if

HUD does charge that the College’s policies and communications violate the Directive’s new FHA gloss.

In support, the majority highlighted that the

Directive “says nothing of how the Religious Freedom

Restoration Act or the Free Exercise Clause may limit

enforcement of the Fair Housing Act’s [new] prohibition on sex discrimination as applied to the College.”

App.9a. In short, although the College could still face

a time consuming and costly HUD investigation, the

College will be able to raise affirmative defenses that

may save it from HUD-imposed penalties.

Relatedly, the majority believed it only “speculative that HUD will file a charge” because the College

is eligible for Title IX’s exemption for religious educational institutions. App.9a. (The majority, like the

government, did not say that Title IX’s exemption

actually exempts the College from the FHA—a separate statute that does not contain a blanket exemption of religious groups.1) Finally, the majority said

the College’s injury was not redressable because a

holding that the Directive is unlawful would not stop

a HUD investigation of alleged gender identity

discrimination. App.16a.

1 The FHA only allows religious organizations to limit occupancy

to members of the same religion, 42 U.S.C. 3607(a).

13

Judge Grasz dissented. App.16a. In his view, the

majority’s “holding overlooks an injury the College

has already suffered—the deprivation of its right to

notice and comment.” App.18a. He explained that the

“FHA requires notice and comment for ‘all rules’

under its purview—including interpretive rules.”

Ibid. (citing 42 U.S.C. 3614a). Such rules “simply

state what the administrative agency thinks the

statute means, and only remind affected parties of

existing duties.” Ibid. (citations omitted). The Directive “states what HUD thinks the statute means and

instructs affected parties of their duties. These are

the hallmarks of an interpretative rule.” App.19a

(citation omitted). Accordingly, the Directive “is

subject to the FHA’s notice and comment requirement.” Ibid. And “at minimum,” the Directive is “a

significant guidance document” for which the APA

required notice and comment under then-applicable

agency regulations, 24 C.F.R. 11.1(b) (2020). App.20a.

Either way, Judge Grasz continued, the College’s

“complaint plausibly alleged HUD deprived the

College of its right to notice and comment. Such

deprivation constitutes an injury in fact sufficient for

standing if the notice and comment right was

‘designed to protect some threatened concrete interest

of’ the College.” App.21a (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 573 n.8 (1992)). Moreover, the

“College has a concrete interest in complying with the

FHA as interpreted by HUD. Notice and comment

rights would have helped ensure the College was

‘treated with fairness and transparency after due

consideration and industry participation.’” App.21a

(citation omitted).

14

Judge Grasz also would have held that the

College had standing to challenge the Directive

directly. “Put simply,” he explained, “if the government acts as the [Directive] facially requires, it is only

a matter of time before the government concludes the

College’s housing policy violates the FHA. The law

should not require the College to wait for this to come

to fruition.” App.17a–18a (citing Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 159 (2014)). “Nor,” he

continued, must the College rely on the government’s

suggestion at oral argument that it had not enforced

the FHA against religious institutions in the past

based on HUD’s historic practice of following Title

IX’s religious exemption—“an exemption not even

mentioned in the broad language of the enforcement

directive.” App.18a.

As for redressability, said Judge Grasz, a “party

deprived of its notice and comment right, as here, ‘can

assert that right without meeting all the normal

standards for redressability and immediacy.’”

App.21a (quoting Lujan, 504 U.S. at 572 n.7). The

requirement “is satisfied ‘if there is some possibility

that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly

harmed the litigant.’” App.21a–22a (quoting

Massachusetts v. EPA, 549 U.S. 497, 518 (2007)).

“Here, the College shows ‘some possibility’ that

enjoining the [Directive’s] enforcement would prompt

HUD to reconsider” it. App.22a. And of course, if a

court were to hold that HUD’s reinterpretation of the

FHA were wrong, that would alleviate any risk of

investigation, fines, and imprisonment that the

College and its officials currently face.

The Eighth Circuit denied en banc review.

App.23a.

15

REASONS FOR GRANTING THE WRIT

The FHA’s and APA’s notice-and-comment mandates are critical to promoting fair, effective, and

efficient agency action. By requiring an agency to

notify the regulated community and allow comment

on a proposed action before it takes effect, Congress

ensures that agencies have adequate information and

consider a diversity of views, making sure that regulatory evolution takes place in a sound and publicly

accountable process.

An agency’s failure to follow the required process

has a “corrosive effect on the rule of law.” App.16a

(Grasz, J., dissenting). Bypassing compulsory notice

and comment “skirts the rule of law and undermines

our values,” leading to regulated entities being

“placed under a sword of Damocles” yet “denied access

to the courts because the sword has not yet fallen.”

App.17a (Grasz, J., dissenting).

That problem is exacerbated if courts hold that

regulated entities lack standing to challenge such

unlawful agency actions. Doing so injures the

concrete interests of regulated entities who desire to

participate in the agency’s rulemaking and interpretive processes. And it also incentivizes agencies to

bypass notice-and-comment requirements in the

future. Without a notice-and-comment process or any

judicial review of that omission, an agency may

reasonably believe that acting outside the rules

“immuniz[es] its lawmaking from judicial review.”

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020

(D.C. Cir. 2000). And a right to notice and comment

that cannot be judicially enforced is no right at all.

16

The Eighth Circuit adopted a rule that a

regulated entity must have a concrete injury in

addition to its procedural injury, not just a concrete

interest that its procedural right is designed to

protect. That rule conflicts with that of five circuits

which have held that regulated entities or others have

suffered a concrete injury when they are within the

applicable zone of interests and deprived of the noticeand-comment process. Such entities need not state an

additional injury to vindicate their rights. The whole

purpose of notice and comment is to allow regulated

entities like the College to participate in agency

policymaking with the potential to influence it: the

injury is being denied participation. This Court

should grant the petition, resolve the 5-1 circuit split,

and reverse the court of appeals.

The College also has standing to directly challenge the Directive under this Court’s precedents.

There “is ordinarily little question” that standing

exists where an entity is the “object of the [challenged]

action,” such as when an injury arises from the

government regulating the entity. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561–62 (1992). The College

easily meets the “object of” test this Court set forth in

Abbott Laboratories v. Gardner, 387 U.S. 136, 153–54

(1967). The College’s injury is also redressable by a

favorable court ruling. And the imminence of the

College’s injury is heightened by the FHA’s threat to

the College’s free-speech interests.

Certiorari is warranted.

17

I.

This Court should grant review to resolve a

5-1 circuit split over regulatory standing.

A. The FHA and APA both required HUD to

complete the notice-and-comment process before issuing the Directive.

The Directive had to undergo notice and comment

before HUD issued it for three independent reasons.

First, the FHA requires a notice-and-comment process for “all rules” under its jurisdiction—including

interpretive rules. 42 U.S.C. 3614a. (In contrast, the

APA exempts interpretive rules from the notice-andcomment requirement “[e]xcept when notice or

hearing is required by statute.” 5 U.S.C. 553(b). The

FHA requirement is one of those exceptions.)

“[I]nterpretive rules simply state what the administrative agency thinks the statute means, and only

remind affected parties of existing duties.” Nw. Nat’l

Bank v. U.S. Dep’t of the Treasury, 917 F.2d 1111,

1117 (8th Cir. 1990) (cleaned up). The Directive

satisfies that definition.

Second, HUD regulations in effect when the

Directive was issued required notice and comment for

any policy statement that interpreted novel legal

issues or implemented presidential priorities. 24

C.F.R. 11.1(b), 11.2, 11.8 (2020). And the government

has never disputed that those regulations required

notice and comment here, even for a policy document.

Third, the APA itself required notice and

comment if the Directive is a substantive rule, which

it certainly is. When an agency binds itself to a legal

standard, leaving officials no enforcement discretion,

it creates a substantive rule and must do so only

through notice and comment. Cmty. Nutrition Inst. v.

Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per

18

curiam). As this Court has emphasized, an agency

“can’t evade its notice-and-comment obligations”

where its action “established or changed a ‘substantive legal standard.’” Azar v. Allina Health Servs., 139

S. Ct. 1804, 1810, 1817 (2019).

Here, the Directive purports to bind HUD employees and outside enforcers to a new FHA interpretation, one that “prohibit[s] discrimination because of

sexual orientation and gender identity.” App.37a. The

Directive describes “this discrimination” as “real” and

“urgently requir[ing] enforcement action.” Ibid. The

Directive described prior, “limited enforcement” of the

FHA as “insufficient,” and it required FHA officials

and state and local agencies to administer the FHA

consistent with the Directive. App.38a. In contrast to

the past, the Directive required “full” enforcement by

government officials on all housing providers, and

therefore it governs the College as an FHA-regulated

entity—the targets of HUD enforcement. No wonder

President Biden called the Directive a “rule change”

that “finally” enforced the FHA. Proclamation No.

10,177, 86 Fed. Reg. 19,775 (Apr. 11, 2021). App.50a–

53a.

In sum, there is no real dispute that (1) HUD had

to engage in the notice-and-comment process before

finalizing the Directive, and (2) HUD failed to do so.

And in any event, this Court “accept[s] as valid the

merits of” the College’s legal claims “[f]or standing

purposes.” FEC v. Cruz, 142 S. Ct. 1638, 1647–48

(2022).

19

B. The notice-and-comment process protects regulated entities like the College.

To counterbalance agency desires to move quickly

to change the law, Congress often imposes rules of

process that safeguard the voice of those affected by

agency decisions and ensure that agencies regulate in

both an informed and well-reasoned manner. A

notice-and-comment requirement is one such rule,

reflecting Congressional intent that regulated entities be given a chance to help shape the significant

administrative changes that govern their operations.

E.g., Chrysler Corp. v. Brown, 441 U.S. 281, 316

(1979) (“In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions

be made only after affording interested persons notice

and an opportunity to comment.”).

Courts have recognized the importance of such

procedural guardrails. By giving regulated entities a

voice, notice-and-comment requirements “reintroduce

public participation and fairness to affected parties

after governmental authority has been delegated to

unrepresentative agencies.” MCI Telecomms. Corp. v.

FCC, 57 F.3d 1136, 1141 (D.C. Cir. 1995) (cleaned up).

Such requirements “assure that the agency will have

before it the facts and information relevant to a

particular administrative problem” before making

dispositive decisions. Ibid. (cleaned up). These benefits are equally true for college administrators faced

with changed FHA rules governing dormitories as

they are for financial companies that desire input

before unelected bureaucrats change banking rules,

or for manufacturers or farmers entitled to a noticeand-comment process before agency modifications to

environmental laws.

20

C. The Fifth, Sixth, Ninth, D.C., and Federal

Circuits have held that being deprived of

notice and comment is itself a concrete

injury sufficient for Article III standing.

Other circuits have had no trouble concluding

that the deprivation of a notice-and-comment right is

an injury for Article III standing.

Fifth Circuit. In Texas v. EEOC, 933 F.3d 433 (5th

Cir. 2019), Texas sued the EEOC under the APA,

challenging the agency’s guidance on employers’ use

of criminal records in hiring. The EEOC had issued

the guidance without engaging in the notice-andcomment process that the APA requires for rules. The

Fifth Circuit held that, along with other injuries,

Texas had “adequately established that it suffered a

procedural injury jeopardizing its concrete interests.”

Id. at 447. Nowhere did the Fifth Circuit require

Texas to show a separate injury beyond denial of the

right to notice and comment, as the Eighth Circuit did

here. The point was that Texas suffered a concrete

harm from the deprivation of a procedural right when

the EEOC issued guidance that implicated Texas’s

existing course of conduct.

The Fifth Circuit went on to explain that the

“redressability requirement is lighter when the

plaintiff asserts deprivation of a procedural right.”

933 F.3d at 447. “When a litigant is vested with a

procedural right, that litigant has standing if there is

some possibility that the requested relief will prompt

the injury-causing party to reconsider the decision

that allegedly harmed the litigant.” Ibid. (quoting

Massachusetts, 549 U.S. at 518). Texas was harmed

because there was some possibility the EEOC would

21

have regulated in a different manner had Texas been

given the benefit of the notice-and-comment process.

Like HUD here, the EEOC maintained that Texas

had no immediate injury because the EEOC’s

guidance did “not compel Texas to do anything.” 933

F.3d at 448. The Fifth Circuit rejected that argument:

“it would strain credulity to find that an agency action

targeting current ‘unlawful’ discrimination among

state employers—and declaring presumptively unlawful the very hiring practices employed by state

agencies—does not require action immediately

enough to constitute an injury-in-fact.” Ibid.

The same is true of HUD’s Directive, which

declares presumptively unlawful the very dormitory

and communication policies that the College has a

concrete interest in maintaining. The College is

harmed because there is some possibility that HUD

will regulate differently if the College is given the

benefit of the notice-and-comment process.

Sixth Circuit. To the same effect is Dismas

Charities, Inc. v. U.S. Dep’t of Just., 401 F.3d 666 (6th

Cir. 2005). There, the operator of community

correction centers under contract with the federal

Bureau of Prisons (BOP) sued to challenge the

Department of Justice’s change in policy for

designating the place of incarceration for federal

offenders without first engaging in the required

notice-and-comment process. The Sixth Circuit held

that Dismas had standing “on the ground that notice

and comment rulemaking was required before the

policy could be put into effect.” Id. at 677.

22

“First, Dismas has Article III standing because …

“[t]he person who has been accorded a procedural

right to protect his concrete interests can assert that

right without meeting all the normal standards for

redressability and immediacy.” 401 F.3d at 677

(quoting Lujan, 504 U.S. at 572 n.7). “The procedural

requirements of notice and comment prior to

rulemaking, assuming that they are applicable,

certainly protect concrete interests of Dismas.” Ibid.

They give the company “the chance to argue to the

BOP that its policy is wrong before the policy is

adopted, and [that] interest in continuing to provide

services to the BOP is certainly concrete.” Ibid.

Accordingly, “Dismas has Article III standing …

because a plaintiff can enforce procedural rights ‘so

long as the procedures in question are designed to

protect some threatened concrete interest of his that

is the ultimate basis of his standing.’” Id. at 677–78

(quoting Lujan, 504 U.S. at 573 n.8).

“Second, [contractors] like Dismas are arguably

within the zone of interests protected by the notice

and comment rulemaking requirements of the APA.”

Dismas, 401 F.3d at 678. “[O]ne of the central

purposes of the requirement of notice and comment is

to give those with interests affected by the rules the

chance to participate in the promulgation of the

rules.” Ibid. Contractors like Dismas “are certainly at

least arguably within the zone of interests.” Id. at 679.

The same is true of the College. The College has a

concrete interest in maintaining its existing policies.

The Directive threatens those policies, declaring them

unlawful. Because the College is at least arguably

within the zone of interests the notice-and-comment

requirements protect, the College has standing.

23

Ninth Circuit. The rule is likewise in the Ninth

Circuit. In East Bay Sanctuary Covenant v. Trump,

932 F.3d 742 (9th Cir. 2018), non-profit organizations

that represented asylum applicants challenged a new

rule—one that prohibited grants of asylum to certain

southern border applicants—without the requisite

APA notice-and-comment process. Although the organizations lacked third-party standing to represent

asylum seekers, and the rule did not govern the

organizations themselves, the court still concluded

the organizations had standing for their procedural

injury.

Under the APA’s “generous review provisions,”

the zone-of-interests test “is not meant to be

especially demanding; in particular, there need be no

indication of congressional purpose to benefit the

would-be plaintiff.” 932 F.3d at 768 (quoting Clarke v.

Sec. Indus. Ass’n, 479 U.S. 388, 399–400 & n.16

(1987)). In fact, “a party within the zone of interests

of any substantive authority generally will be within

the zone of interests of any procedural requirement

governing exercise of that authority.” Id. at 769

(quotation omitted).

“This is particularly true for claims brought under

the APA’s notice-and-comment provisions.” 932 F.3d

at 769 (citing Mendoza v. Perez, 754 F.3d 1002, 1016

(D.C. Cir. 2014)). Accordingly, the organizations had

standing to “challenge the absence of notice-andcomment procedures.” Ibid.

Here, the College is likewise within the zone of

interests protected by the APA’s and FHA’s noticeand-comment requirements. So, the College has

standing to challenge HUD’s violation of those

requirements.

24

D.C. Circuit. In Sierra Club v. EPA, 699 F.3d 530

(D.C. 2012), the Club filed an APA challenge alleging

that the EPA failed to engage in the notice-andcomment process before declaring that the agency had

met certain Clean Air Act obligations. After

determining that the Club’s members lived within

zones affected by the agency’s regulations (or lack

thereof), the D.C. Circuit held that the Club had

standing.

“The Club seeks a vacatur of the [EPA’s] Determination,” the court explained, so that, before any such

determination becomes final, it can make its case

directly to the EPA through the notice-and-comment

process “as to why the agency’s conclusion” is wrong

and should be reconsidered. 699 F.3d at 533. “If

correct on the merits, as we must assume for standing

purposes, such a challenge presents a clearly

redressable injury: some Sierra Club members” were

affected by the agency’s decision, and the court’s

“vacatur will require EPA … to entertain and respond

to the Club’s claims about the necessary scope and

stringency of the standards.” Ibid. “[T]he APA’s

notice-and-comment requirements … are plainly

designed to protect the sort of interest alleged.” Ibid.

So too here. The College seeks a vacatur that will

require HUD to entertain and respond to the College’s

claims about the Directive’s application to religious

colleges and universities who have sincere religious

objections to housing men who identify as women in

female-only dormitories. Granting the College that

relief allows the parties to “develop a record that will

render [HUD]’s legal and technical decisions more

transparent and thereby facilitate substantive

review.” 699 F.3d at 534. The College has standing.

25

Federal Circuit. Finally, the Federal Circuit, in a

substantively identical context, applied the same

standing principle in Salmon Spawning & Recovery

Alliance v. U.S. Customs & Border Patrol, 550 F.3d

1121 (Fed. Cir. 2008). There, environmental groups

sued and alleged that federal agencies and officials

violated the Endangered Species Act by allowing

prohibited importation of endangered salmon from

Canada into the United States without first engaging

in the consultation process that section seven of the

Act requires—a procedural injury.

Reversing a dismissal for lack of standing, the

Federal Circuit noted that “plaintiffs’ section 7 claim

is attempting to enforce a procedural right. Such

rights can be asserted ‘without meeting all the normal

standards for redressability and immediacy,’ as long

as ‘the procedures in question are designed to protect

some threatened concrete interest of [the plaintiff]

that is the ultimate basis of his standing.’” 550 F.3d

at 1132 (quoting Lujan, 504 U.S. at 572 n.7, 573 n.8).

“[B]ecause consultation could require the defendants

to more actively enforce the import ban, consultation

could protect the plaintiffs’ interests in the survival of

the ESA-listed salmon, and it is precisely this interest

which the procedure was designed to protect.” Ibid.

The groups’ “claim alleging a violation of the procedural requirements of section 7(a)(2) satisfies the

redressability prong of standing.”). Ibid. (citation

omitted).

Here, the College likewise seeks to protect its

threatened concrete interest in maintaining its housing policies and communications about them without

fear of increased or “full” enforcement of HUD’s legal

theory in the Directive. The College has standing.

26

D. The College does not assert a procedural

right in vacuo.

In reaching the contrary conclusion, the panel

majority below cited this Court’s decision in Summers

v. Earth Island Institute and characterized the

College’s alleged procedural injury as occurring in a

vacuum: “deprivation of a procedural right without

some concrete interest that is affected by the

deprivation—a procedural right in vacuo—is

insufficient to create Article III standing.” App.12a

(quoting 555 U.S. 488, 496 (2009)). But “this case does

not involve the kinds of purely procedural rights at

issue in [Summers], which involved decisionmaking

procedures … that did not ‘require [or] forbid any

action on the part of’ the plaintiffs.” Cawthorn v.

Amalfi, 35 F.4th 245, 253 (4th Cir. 2022) (quoting

Summers, 555 U.S. at 493). “Here, in contrast,” the

FHA’s refusal to engage in the notice-and-comment

process precludes the College “‘from doing

[some]thing’ in the real world.” Ibid. (quoting Trump

v. New York, 141 S. Ct. 530, 536 (2020) (per curiam)).

That preclusion “gives the challengers the requisite

personal stake in this appeal.” Ibid. (citing Salazar v.

Buono, 559 U.S. 700, 711–13 (2010)).

The panel majority also erred in relying on this

Court’s comment in Lujan that a plaintiff cannot

establish injury in fact based on “a ‘procedural right

unconnected to the plaintiff’s own concrete harm.’”

App.12a (quoting Lujan, 504 U.S. at 573 n.8). As

noted above, numerous circuits recognize standing in

situations like the College’s by relying on Lujan. The

difference between this case and Lujan is that, in

Lujan, the individuals asserting a lack of process

“live[d] (and propose[d] to live) at the other end of the

country from the dam” at issue. 504 U.S. at 572 n.7.

27

In contrast, the Directive governs the College’s

conduct directly. When HUD modifies its housing

rules to nullify the College’s policies and denies the

College any opportunity to comment and potentially

influence the outcome, the College is invoking a

procedure “designed to protect some threatened

concrete interest of [the College’s] that is the ultimate

basis of [its] standing.” 504 U.S. at 573 n.8.

***

To reiterate, the Eighth Circuit adopted a rule

that a regulated entity’s concrete interest in maintaining a course of conduct is insufficiently connected

to a notice-and-comment right to constitute an injury

in fact. App.12a. That rule cannot be reconciled with

Summers, Lujan, or the many circuit authorities

discussed above. The College presented interests in

specific dorms, located at a specific address that the

Directive squarely covers. Yet the panel said that was

insufficient to challenge the FHA’s violation of noticeand-comment requirements.

The Eighth Circuit was wrong to require

regulated entities within the zone of interests

protected by a statute requiring notice-and-comment

procedures to show a harm in addition to those

entities’ concrete interest in maintaining conduct

threatened by a policy change made without the

requisite process. By granting the petition, the Court

can restore circuit uniformity and require HUD to do

its job: conduct the notice-and-comment process

before rewriting the FHA.

28

II. The College has standing under this Court’s

precedents to challenge the Directive itself.

Independent of its procedural injury, the College

has pre-enforcement standing under this Court’s

precedents to sue and enjoin enforcement of the

Directive on the merits. All the College need establish

is (1) an injury in fact, (2) a causal connection between

the injury and the Directive, and (3) that a favorable

decision is likely to redress the College’s injury.

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

Although an alleged injury in fact must be “actual or

imminent, not conjectural or hypothetical,” id. at 339

(citation omitted), the College need not wait for a

HUD enforcement action to challenge the Directive’s

validity. See Susan B. Anthony List, 573 U.S. at 158–

59. Rather, all the College need do at the motion-todismiss stage is allege “an intention to engage in a

course of conduct arguably affected with a

constitutional interest, but proscribed by a

[government directive], and [that] there exists a

credible threat of prosecution thereunder.” Id. at 159.

The College easily satisfies these prerequisites.

The College’s policy of assigning its dormitories based

on biological sex, and its communication of that policy

to current and prospective students, falls under the

Directive’s proscription that the College may not

“discriminate” in its dormitory policy based on

“gender identity.” App.37a. That places the College

squarely within the FHA’s and third-party enforcers’

cross hairs. And there is no shortage of third parties

eager to challenge the College’s religious beliefs. E.g.,

Hunter v. U.S. Dep’t of Educ., No. 6:21-cv-00474-AA

(D. Or.) (action brought by dozens of LGBTQIA+

students nationwide alleging the invalidity of the

Department of Education’s application of Title IX’s

29

religious exemption to sexual and gender minority

students who attend private religious colleges and

universities that receive federal funding). In fact, one

of the plaintiffs in Hunter filed a Title IX sexualorientation and gender-identity complaint against the

College’s housing policy with the Department of

Education, notwithstanding Title IX’s religious

exemption. Elizabeth Redden, Christian College Sues

to Keep LGBTQ+ Housing Policy, Inside Higher Ed

(Sept. 8, 2021), https://bit.ly/3IOEjzr. The government has not informed the College that it ever dismissed this complaint.

The analysis is even simpler because of the

regulatory context. There “is ordinarily little

question” that standing exists where an entity is the

“object of the [challenged] action,” such as when an

injury arises from the government regulating the

entity. Lujan, 504 U.S. at 561–62. Entities are the

object of a regulation (1) when “the regulation is

directed at them in particular”; (2) when “it requires

them to make significant changes in their everyday

business practices”; and (3) when, “if they fail to

observe the [new] rule they are quite clearly exposed

to the imposition of strong sanctions.” Abbott Lab’ys,

387 U.S. at 153–54. The College satisfies these

criteria.

First, the government confirmed below that the

Directive and its new legal standard apply to the

College. 5/19/2021 Hr’g Tr. on Pls.’ Mot. for TRO and

P.I. at 55–59, ECF No. 23. The Directive imposes its

interpretation on the FHA and its regulations; those

rules, in turn, prohibit discriminatory housing

policies and speech. 42 U.S.C. 3604(c); 24 C.F.R.

100.50(b)(4)–(5). The Directive binds internal and

external enforcement officials to “fully enforce” this

30

interpretation. App.40a. And the government has

long taken the view that the FHA covers private

college dormitories. V. Compl. ¶¶ 121–24.

Below, the government also declared that the

College’s policies and speech “indicate a discriminatory and unlawful preference,” cause “housing discrimination on the basis of sexual identity or sexual

orientation,” “den[y] housing” to transgender

students, create “a hostile housing environment from

college administrators on the basis of gender stereotype,” must “accommodate” transgender students,

and impose “housing discrimination when [a student]

brings transgender friends or family to the dorm.”

Defs.’ Opp’n to Mot. for TRO and P.I. at 20, 41, 44–45,

ECF No. 19; 5/19/2021 Hr’g Tr. on Pls.’ Mot. for TRO

and P.I. at 55–59, ECF No. 23; CA8 Appellant’s

Br.14–17.

And, when asked at a Congressional hearing

whether the College’s dormitory policies were “in

violation” of the Directive, HUD Secretary Marcia

Fudge answered that the Directive “is the law. The

Bostock rule from the Supreme Court says it is the

law and I am sworn to uphold the law.”2

2 Testimony of Marcia Fudge, U.S. House Comm. on the Budget,

Hr’g on U.S. Dep’t of Hous. and Urban Development’s Fiscal

Year 2022 Budget (June 23, 2021), https://bit.ly/3Snd3eP.

Secretary Fudge then said she would not violate anyone’s free

speech rights. Id. But the government denies that the College

has any free speech rights.

31

Second, the Directive forces the College to choose

immediately between three injuries: (1) obey the government and abandon the College’s religious policies

and speech; (2) refuse the government and risk

crippling investigations and penalties; or (3) cease

providing student housing. V. Compl. ¶¶ 229–70.

Third, the government’s threatened sanctions are

strong. The FHA provides for six-figure fines, unlimited damages, intrusive investigations, and government lawsuits. V. Compl. ¶¶ 158–77. Criminal penalties are available if an incident involves the threat of

force, as may occur if security personnel must

physically remove a biological male from a female

dormitory. 42 U.S.C. 3631.

And while the government labels the Directive a

non-binding policy memorandum for litigation purposes, the Directive on its face binds officials and

enforcement grantees to its interpretation of the

FHA. Failure of regulated entities in general—and

the College in particular—to comply could bring

potential liability and enforcement. App.36a–41a.

Accordingly, the College has standing to sue

under this Court’s precedents as the object of agency

action.

The College also has standing to bring a preenforcement action to challenge the Directive’s

infringement of the College’s speech. As noted, the

College’s speech and policies are not just “arguably

proscribed” by the Directive’s new interpretation of

the FHA, the government itself has said so.

The panel majority erred by holding that the

Memorandum only binds HUD and does not “require

that HUD reach the specific enforcement decision

32

that the College’s current housing policies violate

federal law.” App.9a. But most regulations do not

require a liability finding, yet pre-enforcement review

is the preferred course. Abbott Lab’ys, 387 U.S. at

148–54. And in reviewing federal agency action,

“parties need not await enforcement proceedings

before challenging final agency action where such

proceedings carry the risk of serious criminal and civil

penalties.” U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590, 600 (2016) (cleaned up). Agency action

is “immediately reviewable,” even if the order

correctly implemented a statutory requirement and

even if it “would have effect” only “when a particular

action was brought.” Id. at 599–600. The “APA

provides for judicial review of all final agency actions,

not just those that impose a self-executing sanction.”

Sackett v. EPA, 566 U.S. 120, 129 (2012). Again, this

is especially true in First Amendment cases, in which

administrative decisions that purport to control

future adjudications “demand[ ] prompt judicial

scrutiny.” Action for Children’s Television v. F.C.C.,

59 F.3d 1249, 1259 (D.C. Cir. 1995).

The panel majority also posited that “[RFRA] or

the Free Exercise Clause may limit enforcement of

the Fair Housing Act’s prohibition on sex discrimination as applied to the College,” App.9a, and that it is

speculative whether HUD will charge the College

given that “the agency has never filed such a charge

against a college for sex discrimination based on a

housing policy that is specifically exempted from the

prohibition on sex discrimination in education under

Title IX of the Civil Rights Act,” App.9a–10a. That

was wrong.

33

To begin, the Directive is new, so no historical

enforcement could exist. On its face, the Directive

requires “full enforcement” eight times, App.36a–

41a—plus the “eradication” of policies like the

College’s, App.41a—and the government has never

disavowed enforcement against the College.

In addition, HUD can take invasive steps short of

a charge. The College faces the imminent threat of

investigation, including written questions, demands

for documents, and interviews with faculty, staff, and

students—no matter what HUD ultimately decides

about RFRA and Free Exercise defenses.

As for HUD accepting those defenses, HUD

admits it never considered them when it wrote the

Directive, so that’s speculative. While Title IX has a

religious exemption, the FHA does not.3 And there are

no guidance documents directing HUD officials to

grant FHA exemptions based on Title IX’s text. The

FHA and Title IX are, after all, separate statutes.

The bottom line is that the government has never

said that Title IX’s exemption actually protects the

College (or any religious school) from the FHA. And

due to the lack of notice and comment, the Directive

does not consider the possibility. CA8 Appellees’ Br.

20, 23, 27–29. The Directive’s failure to “overtly

consider” these privacy and religious freedom interests renders it fatally flawed. Little Sisters of the Poor

v. Pennsylvania, 140 S. Ct. 2367, 2383 (2020). And the

fact the College may ultimately prevail under a

religious defense does not remove a present injury.

3

As explained in footnote 1, the FHA only allows religious

organizations to limit occupancy to members of the same

religion. 42 U.S.C. 3607(a).

34

Separately, the panel majority believed that any

injury or speech restriction is not traceable to the

Directive—and therefore not redressable—because

HUD must construe the FHA consistent with Bostock

v. Clayton County, 140 S. Ct. 1731 (2020). App.16a.

But Bostock limited its holding to Title VII and said it

was not addressing intimate spaces. 140 S. Ct. at

1753. At a minimum, the Directive is an extension of

Bostock, meaning the threat to the College’s interests

is traceable to (and redressable from) HUD’s

threatened enforcement of the Directive, not Bostock.

Moreover, if the FHA is read as the Directive

interprets it, the College’s same claims would support

relief. The complaint challenges (1) HUD enforcement

of the Directive, and (2) if the FHA includes the

Directive’s standard, HUD’s enforcement of the

statute and its regulations. V. Compl., p. 65, Prayer

for Relief. Standing exists when the injury can be

traced to the officials’ “allegedly unlawful conduct” of

enforcing “the provision of law that is challenged.”

Collins v. Yellen, 141 S. Ct. 1761, 1779 (2021). That’s

this case.

Finally, by assuming that Bostock might be

extended to the FHA, the Eighth Circuit violated this

Court’s admonition that standing is a litigant’s right

“to have the court decide the merits of … particular

issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975)

(emphasis added). When an “answer to [a merits]

question would necessarily resolve the standing

issue,” courts recognize standing so that the merits

can be resolved. Day v. Bond, 500 F.3d 1127, 1137

(10th Cir. 2007); accord Griswold v. Driscoll, 616 F.3d

53, 56 (1st Cir. 2010) (exercising jurisdiction where

“the dispositive questions of standing and statement

of cognizable claim are difficult to disentangle.”).

35

Here, the proper course is to acknowledge the

College’s standing and remand this matter to the

district court. If, on appeal, the Eighth Circuit or this

Court holds that the Directive is a misapplication of

Bostock and a misinterpretation of the FHA, then the

College’s injuries will have been redressed. All of

Article III’s prerequisites have been satisfied, and the

case should move forward.

III. This case is an ideal vehicle for resolving the

questions presented.

This case is an excellent vehicle to decide both

questions presented. First, the record is clear. All the

facts in the complaint must be accepted as true, and

the College has alleged a sufficient injury-in-fact for

Article III standing.

Second, a lawsuit alleging that an agency’s policy

abridges free speech is an ideal context to consider the

questions presented. Threats to free speech are the

paradigm for pre-enforcement review, and HUD

believes the College’s speech violates the FHA as

interpreted by the Directive.

Third, the issues presented will not benefit from

further percolation. The en banc Eighth Circuit chose

not to reconsider its outlier decision, refusing to find

a procedural injury despite the College’s concrete

interest in maintaining its existing polices. In so

doing, the court of appeals ensured that litigants

aggrieved by agency actions will face one standing

rule in the Eighth Circuit and a very different rule in

five others. Had the College been in any of those

circuits, its claims would have gone forward.

36

Finally, the scope of the questions presented are

not limited to religious colleges. Congressional gridlock incentivizes agencies to issue “guidance” documents like the Directive. Yet in the areas of finance,

environmental law, securities, and more, the decision

below guts statutorily mandated notice-and-comment

requirements by ensuring there is rarely a regulated

entity who can sue to enforce the requirement.

That result has mammoth implications. If HUD

gets away with rewriting the FHA via the Directive,

it has no incentive to ever go through the rule-making

process. That eliminates judicial review until after an

enforcement proceeding is complete and the regulated

entity has already been harmed. As a practical

matter, that means all judicial review of APA rule

making is eradicated. And that is an even more

radical rewrite of the APA than the Directive is of the

FHA. Immediate review is needed.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

MATTHEW S. BOWMAN

JULIE MARIE BLAKE

JACOB P. WARNER

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

FEBRUARY 2023

APPENDIX

ia

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Eighth Circuit

Opinion in 21-2270

Issued July 27, 2022 ................................................ 1a

United States Court of Appeals

for the Eighth Circuit

Order Denying Petition for Rehearing En

Banc in 21-2270

Issued September 30, 2022 .................................... 23a

United States District Court for the Western

District of Missouri, Southern Division

Order Dismissing Motion for Temporary

Restraining Order and Preliminary

Injunction and dismissing Plaintiff’s

Complaint in 6:21-cv-03089

Issued June 4, 2021................................................ 24a

United States District Court for the Western

District of Missouri, Southern Division

Judgment in 6:21-cv-03089

Issued June 7, 2021................................................ 35a

Memorandum dated February 11, 2021 Re:

Implementation of Executive Order 13988 on

the Enforcement of the Fair Housing Act ............. 36a

Executive Order 13988 of January 20, 2021:

Preventing and Combating Discrimination

on the Basis of Gender Identity and Sexual

Orientation ............................................................. 42a

iia

HUD.gov Webpage: FHIP Education and

Outreach Initiative – Tester Training .................. 46a

HUD.gov Webpage: Contact FHIP

Organizations ......................................................... 48a

National Fair Housing Month Presidential

Proclamation .......................................................... 50a

1a

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-2270

___________________________

The School of the Ozarks, Inc., doing business as

College of the Ozarks,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Joseph R. Biden, Jr., in his official capacity as

President of the United States; U.S. Department of

Housing and Urban Development; Marcia L. Fudge,

in her official capacity as Secretary of the U.S.

Department of Housing and Urban Development;

Demetria L. McCain, in her official capacity as

Principal Deputy Assistant Secretary for Fair

Housing & Equal Opportunity of the U.S.

Department of Housing and Urban Development,1

lllllllllllllllllllllDefendants - Appellees.

------------------------------

1 Ms. McCain is substituted for Jeanine M. Worden under

Federal Rule of Appellate Procedure 43(c). The complaint sued

Worden in her official capacity as Acting Assistant Secretary,

but that office is now vacant, and under the Department’s Order

of Succession, the Principal Deputy Assistant Secretary

exercises the powers and performs the duties of the Assistant

Secretary.

2a

Institute for Faith and Family; America First Legal

Foundation; Mountain States Legal Foundation;

State of Missouri; State of Alabama; State of

Arkansas; State of Indiana; State of Kansas; State of

Kentucky; State of Louisiana; State of Montana;

State of Nebraska; State of South Carolina; State of

Tennessee; State of Texas; State of Utah; State of

West Virginia; Hannibal-LaGrange University;

Missouri Baptist University; Southwest Baptist

University; Christian Life Commission of the

Missouri Baptist Convention,

lllllllllllllllllllllAmici on Behalf of Appellant(s).

____________

Appeal from United States District Court

for the Western District of Missouri - Springfield

____________

Submitted: November 17, 2021

Filed: July 27, 2022

____________

Before COLLOTON, GRASZ, and KOBES, Circuit

Judges.

____________

COLLOTON, Circuit Judge.

College of the Ozarks, a private Christian college

in Missouri, brought this action to challenge the

lawfulness of a memorandum issued by an acting

assistant secretary of the United States Department

of Housing and Urban Development. The College

moved for a temporary restraining order and

3a

preliminary injunction. The district court2 ruled that

the College lacked standing to establish a case or

controversy and dismissed the action for lack of

jurisdiction. The College appeals, and we affirm.

I.

On June 15, 2020, the Supreme Court decided

Bostock v. Clayton County, 140 S. Ct. 1731 (2020),

concerning Title VII of the Civil Rights Act of 1964.

Bostock held that the statute’s prohibition on

employment discrimination “because of sex”

encompasses discrimination on the basis of sexual

orientation and gender identity. Id. at 1741.

The Fair Housing Act, at issue in this appeal,

makes it unlawful for certain persons and entities to

“make unavailable or deny” a dwelling “because of . . .

sex.” 42 U.S.C. § 3604(a). In January 2021, President

Biden issued Executive Order No. 13,988, which

states that “[u]nder Bostock’s reasoning, laws that

prohibit sex discrimination—including . . . the Fair

Housing Act . . . prohibit discrimination on the basis

of gender identity or sexual orientation.”

The following month, the Acting Assistant

Secretary for Fair Housing and Equal Opportunity in

the Department of Housing and Urban Development

issued a memorandum to implement the Executive

Order. The Memorandum is addressed to the

Department’s Office of Fair Housing and Equal

Opportunity, as well as state and local agencies and

private organizations that administer and receive

funds through certain programs of the Department.

The Honorable Roseann A. Ketchmark, United States

District Judge for the Western District of Missouri.

2

4a

The document explains that the Office of General

Counsel for the Department “has concluded that the

Fair Housing Act’s sex discrimination provisions are

comparable to those of Title VII and that they

likewise prohibit discrimination because of sexual

orientation and gender identity.”

The Memorandum directs the Office of Fair

Housing and Equal Opportunity—the HUD office

that enforces the Fair Housing Act—to “accept for

filing and investigate all complaints of sex

discrimination, including discrimination because of

gender identity or sexual orientation.” The

document’s stated purpose is to direct the Office to

“fully enforce the Fair Housing Act” because

discrimination based on sexual orientation and

gender identity “is real and urgently requires

enforcement action.”

The Memorandum explained that over the

previous ten years, HUD interpreted the Fair

Housing Act to prohibit discrimination on the basis of

gender identity and sexual orientation when the

discrimination was motivated by perceived

nonconformity with gender stereotypes.3 Yet the

Memorandum

concluded

that

this

“limited

enforcement” was “insufficient to satisfy the Act’s

purpose” and was “inconsistent” with the broader

See Equal Access in Accordance With an Individual’s

Gender Identity in Community Planning and Developmental

Programs, 81 Fed. Reg. 64,763, 64,770 (Sept. 21, 2016); Quid Pro

Quo and Hostile Environment Harassment and Liability for

Discriminatory Housing Practices Under the Fair Housing Act,

81 Fed. Reg. 63,054, 63,058-59 (Sept. 14, 2016); Equal Access to

Housing in HUD Programs Regardless of Sexual Orientation or

Gender Identity, 77 Fed. Reg. 5661, 5666 (Feb. 3, 2012).

3

5a

rationale of Bostock. Hence, the Department’s

leadership issued this new directive “to fully enforce”

the Act’s prohibitions against discrimination based on

sex, including sexual orientation and gender identity.

The Memorandum addresses discrimination in

housing across the entire economy, and does not

specifically address the subject of housing for

students at colleges and universities.

College of the Ozarks is a Christian

undergraduate institution in Missouri. The College

admits students of any religion, but all students must

agree to follow the College’s religiously-inspired code

of conduct. As stated in that code, the College teaches

that biological sex is a person’s “God-given, objective

gender, whether or not it differs from their internal

sense of ‘gender identity.’” The code also states that

“sexual relations are for the purpose of the

procreation of human life and the uniting and

strengthening of the marital bond in self-giving love,

purposes that are to be achieved solely through

heterosexual relationships in marriage.” In

accordance with these beliefs, the College maintains

single-sex residence halls and does not allow

members of one sex to visit the “living areas” of

members of the opposite sex. The College therefore

prohibits biological males who “identify” as females

from living in female dormitories, and vice-versa. The

College regularly communicates its housing policies

to current and prospective students through a student

handbook, an online virtual tour, the school website,

and in-person recruitment events.

Allegedly fearing that its housing policies are now

unlawful under the Memorandum’s interpretation of

the Fair Housing Act, the College sued President

6a

Biden, the Department of HUD, the Secretary of

HUD, and the Acting Assistant Secretary, seeking

pre-enforcement review of the Memorandum. The

complaint alleged that the Memorandum, among

other things, violates the Administrative Procedure

Act, the First Amendment’s Free Speech and Free

Exercise Clauses, the Appointments Clause of Article

II of the Constitution, and the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb et seq.

The complaint sought injunctive and declaratory

relief. Specifically, it asked the district court to “set

aside” the Memorandum and issue an injunction

against enforcement of the Memorandum by the

defendant officials. The complaint sought, among

other forms of relief, a declaration that the Fair

Housing Act and the implementing regulations do not

prohibit discrimination based on sexual orientation or

gender identity. The College moved for a temporary

restraining order and preliminary injunction.

The district court concluded that it lacked

jurisdiction because the College failed to establish

Article III standing. The court determined that any

alleged injury is not concrete because the College did

not show that the Memorandum imposed restrictions

on private housing providers such as the College. The

court further reasoned that any injury was not caused

by the Memorandum because the internal directive

does not modify the College’s rights or obligations

under the Fair Housing Act. The court also concluded

that any judicial remedy would not redress any

alleged injury because any liability that the College

incurs for violating the Fair Housing Act “would flow

directly from the Act itself, as well as applicable case

law including Bostock, and not from the

7a

Memorandum.” The College appeals, and we review

the district court’s decision de novo.

II.

“No principle is more fundamental to the

judiciary’s proper role in our system of government

than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341

(2006) (internal quotation and alteration omitted). To

establish Article III standing, a party invoking

federal jurisdiction must show (1) that the plaintiff

suffered an injury in fact, (2) a causal relationship

between the injury and the challenged conduct, and

(3) that a favorable decision will likely redress the

injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

(1992). An injury in fact is the invasion of a legally

protected interest that is “actual or imminent, not

conjectural or hypothetical.” Id. at 560 (internal

quotation omitted). “Allegations of possible future

injury do not satisfy the requirements of Article III. A

threatened injury must be certainly impending to

constitute injury in fact.” Whitmore v. Arkansas, 495

U.S. 149, 158 (1990) (internal quotation omitted).

A plaintiff who invokes federal jurisdiction must

support each element “in the same way as any other

matter” on which it bears the burden of proof. Lujan,

504 U.S. at 561. At the pleading stage, therefore, a

plaintiff must “allege sufficient facts to support a

reasonable inference that [it] can satisfy the elements

of standing.” Animal Legal Def. Fund v. Vaught, 8

F.4th 714, 718 (8th Cir. 2021).

The closely related doctrine of ripeness originates

from the same Article III limitation. Susan B.

8a

Anthony List v. Driehaus, 573 U.S. 149, 157 n.5

(2014). The ripeness requirement serves “to prevent

the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also

to protect the agencies from judicial interference until

an administrative decision has been formalized and

its effects felt in a concrete way by the challenging

parties.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 14849 (1967). To demonstrate that an alleged dispute is

ripe for review, the complainant must show both “the

fitness of the issues for judicial decision and the

hardship to the parties of withholding court

consideration.” Id. at 149. A case is fit for judicial

decision when it would not benefit from further

factual development and poses a purely legal question

not contingent on future possibilities. Pub. Water

Supply v. City of Peculiar, 345 F.3d 570, 573 (8th Cir.

2003). In this case, standing and ripeness essentially

“boil down to the same question,” and we will address

the issue in terms of “standing.” See Susan B.

Anthony List, 573 U.S. at 157 n.5; MedImmune, Inc.

v. Genetech, Inc., 549 U.S. 118, 128 n.8 (2007).

A.

The College first argues that it has suffered an

injury in fact because there is an imminent threat

under the Memorandum that the government will

enforce the Fair Housing Act against the College. This

imminent threat of enforcement, says the College,

requires it to choose among three injuries: (1) change

its housing policies in violation of the College’s

religious beliefs, (2) refuse to change its housing

policies and face sanctions under the Fair Housing

Act, or (3) cease providing student housing altogether.

9a

The College cites the Memorandum’s call for “full

enforcement” of the Act to overcome the insufficiency

of past “limited enforcement of the Fair Housing Act’s

sex discrimination prohibition.” The College contends

that the Memorandum necessarily directs the agency

to bring an allegation of sex discrimination against

the College to “eliminate discriminatory housing

practices.”

This theory of injury fails because it is based on a

misunderstanding of the Memorandum. The Memorandum does not impose any restrictions on, or create

any penalties against, entities subject to the Fair

Housing Act. Rather, the Memorandum directs the

Office of Fair Housing and Equal Opportunity to

“accept for filing and investigate all complaints of sex

discrimination, including discrimination because of

gender identity or sexual orientation.” The Memorandum does not, as the College presupposes, require

that HUD reach the specific enforcement decision

that the College’s current housing policies violate

federal law. The Memorandum, for example, says

nothing of how the Religious Freedom Restoration Act

or the Free Exercise Clause may limit enforcement of

the Fair Housing Act’s prohibition on sex discrimination as applied to the College. Bostock itself, the

decision on which the Memorandum is based, refers

to the Religious Freedom Restoration Act as a “super

statute, displacing the normal operation of other

federal laws.” Bostock, 140 S. Ct. at 1754.

The College’s alleged injury also lacks imminence

because it is speculative that HUD will file a charge

of discrimination against the College in the first place.

As explained in the government’s brief, the agency

has never filed such a charge against a college for sex

10a

discrimination based on a housing policy that is

specifically exempted from the prohibition on sex

discrimination in education under Title IX of the Civil

Rights Act. Title IX provides that its antidiscrimination provision “shall not apply to an

educational institution which is controlled by a

religious organization,” if applying the prohibition

“would not be consistent with the religious tenets of”

the organization. 20 U.S.C. § 1681(a)(3). In 2018, the

assistant secretary for civil rights in the U.S.

Department of Education formally advised the

College that it is exempt from numerous regulatory

provisions on housing and other matters, insofar as

they proscribed discrimination based on sexual

orientation or gender identity, to the extent that

compliance would conflict with the College’s religious

tenets. Consistent with that exemption, even when

HUD interpreted the Fair Housing Act to prohibit

discrimination on the basis of sexual orientation and

gender identity between 2012 and 2020, the

Department brought no enforcement action against

the College. The College’s enjoyment of an exemption

under Title IX, and its failure to show that HUD has

previously filed discrimination charges against it or

similarly situated colleges, substantially undermines

its argument that enforcement is imminent now. See

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411

(2013).

Similarly unpersuasive is the College’s assertion

that it is the “object of the action” in the

Memorandum, and that there is thus “little question”

that the Memorandum causes injury. See Lujan, 504

U.S. at 561-62. Relying on the ripeness decision in

Abbott Laboratories, the College argues that it is the

11a

object of an agency action because the Memorandum

(1) is directed at the College in particular, (2) requires

the College to make significant changes to its housing

policies, and (3) exposes the College to strong

sanctions. See 387 U.S. at 154. But this assertion

overlooks that the Memorandum is an internal

directive to HUD agencies, not a regulation of private

parties. The Memorandum does not direct the College

to do anything, and it does not expose the College to

any legal penalties for noncompliance with the

Memorandum. In Abbott Laboratories, by contrast,

the plaintiff drug manufacturers were the object of a

final administrative rule that required them to place

a particular name on drug labels. The rule directly

regulated the conduct of drug manufacturers and was

backed by criminal and civil sanctions if not followed.

Id. at 152-54.

The College is more like the plaintiff in Cornish v.

Blakey, 336 F.3d 749 (8th Cir. 2003). There, a memorandum issued by the Department of Transportation

(DOT) directed doctors who conducted drug testing

how to decide whether a specimen was adulterated.

Id. at 751. The Federal Aviation Administration

(FAA) revoked the plaintiff Cornish’s aircraft

mechanic certificate when doctors determined that he

submitted an adulterated urine specimen. Before the

mechanic exhausted his administrative remedies, he

brought a challenge to the DOT memorandum in

federal court. Id. at 752. This court held that the

plaintiff “was not even arguably injured by the 1998

DOT memorandum until the FAA relied upon it as a

basis for revoking his mechanic certificate,” and that

“absent the revocation order, Cornish lacks the injury

in fact necessary for Article III standing.” Id. at 752-

12a

53. The College lacks injury for analogous reasons.

The HUD enforcement agencies have not relied on the

Memorandum to charge the College with sex

discrimination under the Fair Housing Act, and any

alleged future injury caused by the Memorandum is

conjectural and hypothetical.

The dissent favors a different theory of injury—

namely, that the College was deprived of a right to

notice and opportunity for comment before HUD

issued the internal directive. But even assuming that

notice and comment was required, a plaintiff cannot

establish injury in fact “on the basis of a ‘procedural

right’ unconnected to the plaintiff’s own concrete

harm.” Lujan, 504 U.S. at 573 n.8. Like the

Memorandum itself, the absence of notice and

opportunity to comment regarding the Memorandum

does not endanger a concrete interest of the College,

because the Memorandum does not require HUD to

determine that the College’s housing policies violate

federal law. “[D]eprivation of a procedural right

without some concrete interest that is affected by the

deprivation—a procedural right in vacuo—is

insufficient to create Article III standing.” Summers

v. Earth Island Inst., 555 U.S. 488, 496 (2009).

In sum, the College’s alleged injury is too

speculative to establish Article III standing. The

College, in effect, asks us to assume that the following

series of events is imminent: a sex-discrimination

complaint will be filed against the College based on

claims involving sexual orientation or gender

identity; following an investigation, HUD will charge

the College with sex discrimination, even though

HUD has never enforced the Fair Housing Act’s sexdiscrimination prohibition against a college whose

13a

housing policies have been exempted from the

prohibition on sex discrimination under Title IX;

HUD will determine, pursuant to the Memorandum,

that the College is not entitled to an exemption under

the Religious Freedom Restoration Act or the Free

Exercise Clause as discussed in Bostock; and the

College will therefore be subject to penalties. This is

the kind of “highly attenuated chain of possibilities”

that “does not satisfy the requirement that

threatened injury must be certainly impending.”

Clapper, 568 U.S. at 410.

B.

The College also advances a second theory of

injury—namely, that the Memorandum curtails its

First Amendment right to freedom of speech. A

plaintiff claiming an abridgment of free speech is

permitted to seek pre-enforcement review “under

circumstances that render the threatened enforcement sufficiently imminent.” Susan B. Anthony List,

573 U.S. at 159. To establish standing, a complaint

must allege that plaintiff has “an intention to engage

in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute,

and there exists a credible threat of prosecution

thereunder.” Id. (internal quotation omitted). A

plaintiff can establish an injury in the First

Amendment context in two ways: by identifying

protected speech in which it would like to engage but

that is proscribed by statute, or by self-censoring to

avoid the credible threat of prosecution. Missourians

for Fiscal Accountability v. Klahr, 830 F.3d 789, 794

(8th Cir. 2016).

14a

The Fair Housing Act makes it unlawful to “make,

print, or publish” a statement regarding the sale or

renting of a dwelling that discriminates on the basis

of sex. 42 U.S.C. § 3604(c). The College argues that,

according to the Memorandum, the Fair Housing Act

prohibits the College from communicating its housing

policies, because those policies require that biological

males and females, regardless of gender identity or

sexual orientation, reside in separate dormitories. In

asserting a credible threat of enforcement, the College

again cites the Memorandum’s call for “full

enforcement” of the Fair Housing Act to bring about

the “eradication of housing discrimination for all.”

The College’s free-speech theory of standing fails

essentially for the reasons discussed above: The

College has not shown that there exists a credible

threat that the defendants will enforce the Fair

Housing Act against the institution based on its

religiously-based housing policies. The Memorandum

does not make the College’s housing policies unlawful

without regard to legal protections for religious

liberty. HUD has never filed charges of housing

discrimination against a college that is exempt from

prohibitions on sex discrimination in housing under

Title IX. And HUD has never enforced the Fair

Housing Act’s sex-discrimination prohibition against

the College, even though the agency interpreted the

Fair Housing Act to prohibit discrimination on the

basis of sexual orientation and gender identity

between 2012 and 2020. Thus, the College’s freespeech theory does not allege an injury in fact

sufficient to confer Article III standing.

Aside from the lack of a credible threat of

enforcement, the College also has not alleged that its

15a

speech has been chilled. The College alleges no selfcensorship, but rather avers that it “tells and intends

to continue telling current and prospective students”

about its religiously-inspired housing policies.

Although the complaint states that the Memorandum

“chills the speech of colleges,” it alleges no facts to

support that legal conclusion, and we “are not bound

to accept as true a legal conclusion couched as a

factual allegation.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (internal quotation omitted). The

College has not alleged, for example, that it no longer

separates males and females into dormitories based

on biological sex, or that it has repealed the portion of

the student handbook that communicates its housing

policies. The complaint thus fails to allege either an

actual chilling of speech or a credible threat of

enforcement that justifies self-censorship.

C.

Even if the College had suffered an injury in fact,

it must also show that a favorable judicial decision

would likely redress its injury. Redressability

requires us to examine the “causal connection

between the alleged injury and the judicial relief

requested.” Allen v. Wright, 468 U.S. 737, 753 n.19

(1984). Therefore, even if we assume for the sake of

analysis that the College has suffered the injuries it

alleges, the College must show that the requested

relief would eliminate the alleged threat of imminent

enforcement of the Fair Housing Act and prevent any

chill of the College’s speech.

An injunction against implementing the Memorandum, however, would not stop the Department

from investigating all complaints of sex discrimi-

16a

nation against a college, including complaints of

discrimination because of gender identity or sexual

orientation. Even if HUD were enjoined from

enforcing its internal directive, the agency would still

be required by statute to investigate sex-discrimination complaints filed against the College. The

statute mandates that when a complaint is filed,

HUD “shall make an investigation of the alleged

discriminatory housing practice.” 42 U.S.C. §

3610(a)(1)(B)(iv). With or without the Memorandum,

the agency must consider the meaning of the Fair

Housing Act in light of Bostock and its interpretation

of similar statutory language. The College has thus

failed to show that enjoining officials from

implementing the Memorandum would redress any

injury allegedly arising from the internal directive,

because the agency retains the authority and

responsibility to carry out the same enforcement

activity based on the statute alone.

* * *

For these reasons, the judgment of the district

court is affirmed.

GRASZ, Circuit Judge, dissenting.

This case highlights the corrosive effect on the

rule of law when important changes in government

policy are implemented outside the normal

administrative process. The normal method for

rulemaking requires notice and comment, which in

turn “secure the values of government transparency

and public participation.” Iowa League of Cities v.

EPA, 711 F.3d 844, 873 (8th Cir. 2013). An agency’s

issuance of a guidance document that fails to adhere

to the proper administrative procedures may achieve

17a

compliance with the government’s desired policy

outcomes by in terrorem means, but it skirts the rule

of law and undermines our values. This is especially

true where regulated entities are placed under a

sword of Damocles but are denied access to the courts

because the sword has not yet fallen. “An agency

operating in this way gains a large advantage”—it

enables the agency to quickly amend its rules without

following the statutory procedures. Appalachian

Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir.

2000). “The agency may also think there is another

advantage—immunizing its lawmaking from judicial

review.” Id.

Here, the College fears the federal government

will imminently enforce HUD’s interpretation of the

Fair Housing Act (“FHA”) against the College if the

College continues its current housing policy that

assigns students to single-sex dorms according to

their biological sex. The court dismisses this fear as

“speculative” and contends there is no “credible threat

of enforcement.” Ante at pp. 8, 11. It therefore

concludes we lack standing to review HUD’s

Memorandum directing the Office of Fair Housing

and Equal Opportunity (“FHEO”) and associated

entities to “fully enforce” the federal government’s

interpretation of the FHA. I disagree with the court’s

conclusions and respectfully dissent.

Viewing the pleadings liberally, the complaint

alleges the College’s housing policy violates the

government’s interpretation of the FHA. Put simply,

if the government acts as the Memorandum facially

requires, it is only a matter of time before the

government concludes the College’s housing policy

violates the FHA. The law should not require the

18a

College to wait for this to come to fruition. See Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)

(“[W]e have permitted preenforcement review under

circumstances that render the threatened enforcement sufficiently imminent.”). Nor do I believe the

College must rely on the government’s in-court oral

suggestion that it would not enforce its interpretation

of the FHA against religious institutions based on its

historic practice of following Title IX’s religious

exemption—an exemption not even mentioned in the

broad language of the enforcement directive in the

Memorandum. See Rodgers v. Bryant, 942 F.3d 451,

455 (8th Cir. 2019) (noting that the government’s “incourt assurances [that it will not fully enforce the law]

do not rule out the possibility that it will change its

mind and enforce the law more aggressively in the

future”).

That said, my main objection to the court’s

holding is more fundamental: the holding overlooks

an injury the College has already suffered—the

deprivation of its right to notice and comment. The

FHA requires notice and comment for “all rules”

under its purview—including interpretative rules.4 42

U.S.C. § 3614a. “[I]nterpretative rules simply state

what the administrative agency thinks the statute

means, and only remind affected parties of existing

duties.” Iowa League of Cities, 711 F.3d at 873

(quoting Northwest Nat’l Bank v. U.S. Dep’t of the

4 The Administrative Procedure Act exempts interpretative

rules from the notice and comment requirement “[e]xcept when

notice or hearing is required by statute.” 5 U.S.C. § 553(b). The

notice and comment requirement under the FHA falls under this

exception.

19a

Treasury, 917 F.2d 1111, 1117 (8th Cir. 1990)).

In my view, HUD’s Memorandum is an

interpretative rule. The Memorandum explains

HUD’s interpretation of the FHA’s “sex discrimination” language: “HUD’s Office of General Counsel

has concluded that [the FHA’s] sex discrimination

provisions . . . prohibit discrimination because of

sexual orientation and gender identity.” It then thrice

directs FHEO and other relevant entities to so

“interpret” the FHA’s prohibition on sex discrimination. The Memorandum states what HUD thinks

the statute means and instructs affected parties of

their duties. These are the hallmarks of an

interpretative rule. See Iowa League of Cities, 711

F.3d at 873. Interestingly, President Biden—author

of the Executive Order prompting the Memorandum—characterized the Memorandum as a “rule

change.” Proclamation No. 10,177, 86 Fed. Reg.

19,775 (Apr. 11, 2021). I agree and therefore believe

the Memorandum is subject to the FHA’s notice and

comment requirement.

But even if we pretend the Memorandum is not

what the President says it is, the College has an

alternative basis for its procedural right to notice and

comment. When HUD issued the Memorandum, a

federal regulation required notice and comment for

“significant guidance documents.” 24 C.F.R. § 11.1(b)

(2020). A guidance document included “a statement of

general applicability, designed to shape or intended to

have future effect on the behavior of regulated

parties, that sets forth a policy on a statutory . . .

issue, or an interpretation of a statute.” Id. § 11.2(a)

(2020). And a guidance document was “significant” if

it could “reasonably be anticipated to . . . [r]aise novel

20a

legal or policy issues arising out of legal mandates [or]

the President’s priorities.” Id. § 11.2(d)(4) (2020).

While these regulations under 24 C.F.R. §§ 11.1 and

11.2 have since been revoked, see Implementing

Executive Order 13992, 86 Fed. Reg. 35,391-01, at

35,392 (July 6, 2021), HUD was required to follow

them while they “remain[ed] in force.” Voyageurs

Region Nat’l Park Ass’n v. Lujan, 966 F.2d 424, 428

(8th Cir. 1992).5

Here, HUD’s Memorandum interpreted the

FHA’s prohibition on sex discrimination. It directed

FHEO to “accept for filing and investigate all

complaints of sex discrimination” based on “gender

identity or sexual orientation” (emphasis added). It

called HUD’s prior FHA enforcement “limited,”

“insufficient,” and “inconsistent” with Bostock v.

Clayton Cnty., 140 S. Ct. 1731 (2020). It sought to

rectify denials of “the constitutional promise of equal

protection under the law” for transgender individuals

“throughout most of American history.” It specified its

requirements arose from the Supreme Court’s Bostock

decision and President Biden’s priorities articulated

in Executive Order 13,988. In short, if the

Memorandum is not an interpretative rule, it is at

minimum a significant guidance document. It strains

credulity to say otherwise.

Whether the Memorandum was an interpretative

As one court recently stated: “Under deeply rooted

principles of administrative law, not to mention common sense,

government agencies are generally required to follow their own

regulations. When agencies fail to do so, the APA (as developed

by case law) gives aggrieved parties a cause of action to enforce

compliance.” Fed. Defs. of N.Y., Inc. v. Fed. Bureau of Prisons,

954 F.3d 118, 130 (2d Cir. 2020) (internal citations omitted).

5

21a

rule or a significant guidance document, the

complaint plausibly alleged HUD deprived the

College of its right to notice and comment. Such

deprivation constitutes an injury in fact sufficient for

standing if the notice and comment right was

“designed to protect some threatened concrete

interest of” the College. Iowa League of Cities, 711

F.3d at 870–71 (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 573 n.8 (1992)). At this stage of the

proceedings, I would conclude the notice and

comment right was designed to protect a threatened

concrete interest of the College. See Am. Farm Bureau

Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir. 2016) (“In

assessing a plaintiff’s Article III standing, we must

assume that on the merits the plaintiffs would be

successful in their claims.” (cleaned up and quotation

omitted)). The College has a concrete interest in

complying with the FHA as interpreted by HUD.

Notice and comment rights would have helped ensure

the College was “treated with fairness and

transparency after due consideration and industry

participation.” See Iowa League of Cities, 711 F.3d at

871. It is plausible at this stage to conclude this notice

and comment right was designed to protect this

concrete interest. The College therefore plausibly pled

both that it suffered an injury in fact and that HUD’s

failure to follow proper notice and comment

procedures caused this injury.

The College also meets the lower showing

required for redressability. A party deprived of its

notice and comment right, as here, “can assert that

right without meeting all the normal standards for

redressability and immediacy.” Id. (quoting Lujan,

504 U.S. at 572 n.7). Redressability in such cases is

22a

satisfied “if there is some possibility that the

requested relief will prompt the injury-causing party

to reconsider the decision that allegedly harmed the

litigant.” Id. (quoting Massachusetts v. EPA, 549 U.S.

497, 518 (2007)). The harmed party, however, need

not “show that the agency would alter its rules upon

following the proper procedures.” Id. Here, the

College shows “some possibility” that enjoining the

Memorandum’s enforcement would prompt HUD to

reconsider the Memorandum.

The College thus has standing because, if nothing

else, it was deprived of its opportunity for notice and

comment. I would therefore reverse the district

court’s dismissal of the College’s complaint.

______________________________

23a

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No: 21-2270

The School of the Ozarks, Inc., doing business as

College of the Ozarks

Appellant

v.

Joseph R. Biden, Jr., in his official capacity as

President of the United States, et al.

Appellees

-----------------------------Institute for Faith and Family, et al.

Amici on Behalf of Appellant(s)

_________________________________________________

Appeal from U.S. District Court for the Western

District of Missouri - Springfield

(6:21-cv-03089-RK)

_________________________________________________

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

September 30, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

THE SCHOOL OF THE

OZARKS, INC.,

Plaintiff,

v.

JOSEPH R. BIDEN JR., IN

HIS OFFICIAL CAPACITY

AS PRESIDENT OF THE

UNITED STATES; et al,

Defendants.

)

)

)

)

)

)

)

)

)

)

Case No. 6:2103089-CV-RK

ORDER

Before the Court is Plaintiff The School of the

Ozarks, Inc.’s motion for a temporary restraining

order and for a preliminary injunction. (Doc. 2.) The

motion is fully briefed. (Docs. 19, 20.) The Court held

a hearing May 19, 2021 and DENIED the motion.

These written reasons follow.

Background

Plaintiff filed its verified complaint on April 15,

2021, largely challenging a memorandum titled

“Implementation of Executive Order 13988 on the

Enforcement

of

the

Fair

Housing

Act”1

U.S. Dep’t of Hous. & Urban Dev., Implementation of

Executive Order 13988 on the Enforcement of the Fair Housing

1

25a

(“Memorandum”). Specifically, the verified complaint

(Doc. 1) alleges:

1. the Memorandum is a new legislative rule and

should be held unlawful and set aside as an

agency action enacted without observance of

notice and comment requirements in contravention of 5 U.S.C. § 706(2)(D);

2. the Memorandum should be set aside under 5

U.S.C. § 706(2)(A)-(C), as an agency action “not

in accordance with law,” “in excess of statutory

jurisdiction, authority, or limitations, or short

of statutory right,” or “contrary to

constitutional right, power, privilege, or

immunity;”

3. the Memorandum should be held unlawful and

set aside under 5 U.S.C. § 706(2)(A) as an

agency action that is arbitrary, capricious, or

an abuse of discretion;

4. Defendants failed to prepare and make

available for public comment an initial and

final regulatory flexibility analysis before

issuing the Memorandum in violation of 5

U.S.C. § 603(a);

5. Defendant

Worden’s

issuance

of

the

Memorandum violated the Appointments

Clause of Article II of the United States

Constitution;

6. the Memorandum, its enforcement, or

alternatively the Fair Housing Act (“FHA”) and

Act (Feb. 11, 2021), https://www.hud.gov/sites/dfiles/PA/

documents/HUD_Memo_EO13988.pdf.

26a

its implementing regulations, violate (a) the

First Amendment to the United States

Constitution’s protections of Freedom of

Speech, Assembly, and Association, and (b) the

Due Process protection afforded by the Fifth

Amendment to the United States Constitution;

7. any application or enforcement of the FHA,

U.S. Department of Housing and Urban

Development (“HUD”) regulations, or the

Memorandum to discrimination because of

sexual orientation or gender identity exceeds

Congress’s Article I enumerated powers and

transgresses on the reserved powers of the

State under the Constitution’s structural

principles of federalism and the Tenth

Amendment;

8. the Memorandum, or in the alternative the

FHA, and HUD’s implementing regulations,

are unlawful under 42 U.S.C. § 2000bb et seq.

(the Religious Freedom Restoration Act

(“RFRA”)); and

9. the Memorandum, or in the alternative the

FHA, and HUD’s implementing regulations,

impose an impermissible burden on Plaintiff’s

religious exercise, its hybrid exercise of free

speech and religion, and its hybrid exercise of

freedom of association and religion, and do not

withstand strict scrutiny analysis in violation

of the First and Fifth Amendments to the

United States Constitution.

Plaintiff’s motion for temporary restraining order

and preliminary injunction and suggestions in

support were filed contemporaneously with the

27a

verified complaint on April 15, 2021. (Docs. 2 and 21.) In its motion, Plaintiff sought interim injunctive

relief on Claims 1, 2, 3, 5, and 6 of its verified

complaint as set forth above. Specifically, Plaintiff

asks this Court to:

[e]njoin

the

Memorandum

and

any

enforcement of it by Defendants (including

their officers, agents, servants, employees,

and all persons in active concert or

participation with them who receive actual

notice of this injunction), pending further

ruling by this Court. Plaintiff asks that

persons subject to this injunction be

prohibited from taking any action to enforce

or investigate an alleged or actual violation of

the directive and its requirements. This

includes acts by Defendants that tend to

prohibit, penalize, or burden private religious

educational institutions because they have or

implement student housing policies based on

biological sex, because they have or

implement codes of student conduct in

housing that require sexual relations to be

limited to a marriage between one biological

man and one biological woman, or because

they make any statements or notices about,

related to, or substantially equivalent to such

policies.

Legal Standard

Standing is a threshold or jurisdictional issue. See

Cook v. ACS State & Local Sols., Inc., 756 F.Supp.2d

1104, 1106 (W.D. Mo. 2010). A district court does not

have subject matter jurisdiction when a plaintiff lacks

28a

standing. Nelson v. Maples, 672 F. App’x 621 (8th Cir.

2017) (citing Faibisch v. Univ. of Minn., 304 F.3d 797,

801 (8th Cir. 2002)). “Standing to sue is a doctrine

rooted in the traditional understanding of a case or

controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016). “To establish the ‘irreducible constitutional minimum of standing,’ [Plaintiff] must show [it

has] ‘(1) suffered an injury-in-fact, (2) that is fairly

traceable to the challenged action of [Defendants],

and (3) is likely to be redressed by a favorable judicial

decision.’” Yeransian v. B. Riley FBR, Inc., 984 F.3d

633, 636–37 (8th Cir. 2021) (quoting Spokeo, 136 S.

Ct. at 1547).

“An injury-in-fact exists where the plaintiff has

sustained, or is in immediate danger of sustaining, a

concrete and particularized harm that is actual or

imminent, not conjectural or hypothetical.”

Philadelphia Indem. Ins. Co. v. Atl. Specialty Ins. Co.,

No. 6:20-CV-03065-MDH, 2020 WL 4819949, at *1

(W.D. Mo. Aug. 19, 2020) (internal quotation marks

omitted). Injury is “fairly traceable” to the

government action at issue where a causal connection

is alleged between the government’s action and the

plaintiff’s injury. Braden v. Wal-Mart Stores, Inc., 588

F.3d 585, 592 (8th Cir.2009). “Because redressability

is an ‘irreducible’ component of standing . . . no federal

court has jurisdiction to enter a judgment unless it

provides a remedy that can redress the plaintiff’s

injury.” Uzuegbunam v. Preczewski, 141 S. Ct. 792,

801 (2021) (citing Spokeo, 578 U.S. at 338).

Analysis

The Court recognizes the sensitivity and

significance of the underlying societal issues of this

29a

case. It is this recognition that warrants the Court’s

caution in making its ruling here and illustrates the

importance of employing judicial restraint. Exceeding

the case and controversy limitations set forth in

Article III of the Constitution constitutes judicial

activism and is not the proper role of this Court. While

value judgment can play a part in legislation, it is not

the place of judges, whose role is to interpret the law.

See Wisconsin Cent. Ltd. v. United States, 138 S. Ct.

2067, 2074, (2018) (“Congress alone has the

institutional competence, democratic legitimacy, and

(most importantly) constitutional authority to revise

statutes in light of new social problems and

preferences[,]” whereas the courts’ role “is to interpret

the words consistent with their ordinary meaning ...

at the time Congress enacted the statute.”). In

keeping with the boundaries limiting the role of the

courts, this Court is unwilling to decide a

Constitutional issue not before it to invalidate

legislative or executive actions.

Article III of the Constitution limits federal

courts’ jurisdiction to certain “Cases” and

“Controversies.” As the United States Supreme Court

has explained, “[n]o principle is more fundamental to

the judiciary’s proper role in our system of

government than the constitutional limitation of

federal-court jurisdiction to actual cases or

controversies.” Clapper v. Amnesty Int’l USA, 568

U.S. 398, 408 (2013) (quoting DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 341 (2006)). “One element of

the case-or-controversy requirement” is that plaintiffs

“must establish that they have standing to sue.” Id.

(internal quotation marks omitted). Ensuring Article

III standing prevents the judicial process from

30a

violating the separation of powers of the political

branches. Id. In light of this purpose, the standing

determination is particularly “rigorous when

reaching the merits of the dispute would force us to

decide whether an action taken by one of the other

two branches of the Federal Government was

unconstitutional.” Id. (internal quotation marks

omitted).

For the reasons below, Plaintiff’s motion for

temporary restraining order and preliminary

injunction is not justiciable as no Article III

controversy exists. Plaintiff fails to show the requisite

elements

of

injury-in-fact,

causation,

and

redressability.

I. Injury-In-Fact

The Court finds Plaintiff fails to demonstrate the

requisite element of an injury-in-fact. Plaintiff has

not sustained, and is not “in immediate danger of

sustaining, a concrete and particularized harm that is

actual or imminent, not conjectural or hypothetical.”

Philadelphia Indem. Ins. Co., 2020 WL 4819949, at *

(internal quotation marks omitted). Plaintiff’s motion

fails to show the Memorandum imposes any

restriction, requirement, or penalty on private

housing providers, including Plaintiff. Plaintiff has

not alleged it is being investigated, charged, or

otherwise subjected to any enforcement action

pursuant to the Memorandum. The Memorandum

does not specify how HUD will determine FHA

liability based on Bostock in any specific factual

setting or considering potential exemptions. As such,

any injury alleged by Plaintiff is not concrete.

Accordingly, Plaintiff’s Motion fails to establish

31a

injury-in-fact as required to establish Article III

standing.

II. Causation

The Court finds Plaintiff does not show any injury

that is “fairly traceable” to the government action at

issue in that it fails to plausibly allege any causal

connection between the Memorandum and any

alleged injury. Braden, 588 F.3d at 592. Plaintiff’s

Motion fails to show the Memorandum has the legal

authority to define or modify its rights or obligations

under the FHA. The Memorandum reiterates intake

procedures for FHA complaints and connects them to

the United States Supreme Court’s opinion in Bostock

v. Clayton County, Ga., 140 S.Ct. 1731 (2020).

Moreover, the Memorandum does not specify how

HUD will determine FHA liability based on Bostock

in any specific factual setting or considering potential

exemptions. As such, Plaintiff’s Motion fails to

establish the element of traceability to the action of

Defendants fact as required to establish Article III

standing. Yeransian, 984 F.3d at 637.

III. Redressability

Even if Plaintiff could establish causation,

Plaintiff’s motion fails for lack of redressability

because enjoining Defendants from following or

applying the Memorandum would not foreclose the

possibility that Plaintiff could be held liable for

violation of the FHA.

Any potential liability Plaintiff incurs for

violating the FHA would flow directly from the Act

itself, as well as applicable case law including

Bostock, and not from the Memorandum. Enjoining

32a

Defendants from “applying” the Memorandum by

accepting and investigating complaints would not

foreclose the possibility that Plaintiff could be held

liable for FHA violations. Even without the

Memorandum, individuals remain free to bring

claims for FHA violations through private actions,

and courts would remain free to adjudicate them

under the statute and Bostock, without necessarily

involving Defendants. The relief Plaintiff seeks, to

“[e]njoin the Memorandum and any enforcement of it

by Defendants[,]” would not preclude investigations

and enforcement by the recipients of the Memorandum. Such investigations and enforcement may

occur independent of the Memorandum, initiated and

executed instead pursuant only to the authority of the

FHA and the guidance of Executive Order 13988.

Simply put, Plaintiff is seeking an advisory opinion

from this Court declaring it cannot be liable for

housing discrimination. Such an opinion would not

shield Plaintiff from all liability and is outside the

constitutional authority of the Court. Therefore,

because the remedy sought cannot redress Plaintiff’s

alleged injury, Plaintiff lacks standing. Uzuegbunam,

141 S. Ct. at 801.

IV. Standing and Subject Matter Jurisdiction

as to Plaintiff’s Remaining Claims

Given the context of the above analysis of

Plaintiff’s claims included in its motion for temporary

restraining order and preliminary injunction, the

Court sua sponte considers its subject matter

jurisdiction as to the remaining claims in Plaintiff’s

verified complaint. Fort Bend Cty., Texas v. Davis, 139

S. Ct. 1843, 1849 (2019) (courts must consider subject

matter jurisdiction sua sponte); Clark v. Baka, 593

33a

F.3d 712, 714 (8th Cir. 2010) (“We are obligated to

consider sua sponte our jurisdiction to entertain a

case where, as here, we believe that jurisdiction may

be lacking.”)

Each of Plaintiff’s Claims 4, 7, 8, and 9 challenge

the Memorandum; any application or enforcement of

the FHA, HUD regulations, or the Memorandum to

discrimination because of sexual orientation or

gender identity; and the FHA, and HUD’s

implementing regulations as violating federal

statutes and the Constitution. However, as with the

claims Plaintiff chose to include in its request for

interim relief, these claims fail for lack of standing

due to Plaintiff’s inability to establish an injury-infact. Plaintiff has not shown in its verified complaint

that it “has sustained, or is in immediate danger of

sustaining, a concrete and particularized harm that is

actual or imminent, not conjectural or hypothetical.”

Philadelphia Indem. Ins. Co., 2020 WL 4819949, at *1

(internal quotation marks omitted). Plaintiff has not

alleged it is being investigated, charged, or otherwise

subjected to any enforcement action pursuant to the

Memorandum; any application or enforcement of the

FHA, HUD regulations, or the Memorandum to

discrimination because of sexual orientation or

gender identity; or the FHA, and HUD’s

implementing regulations. Plaintiff has not plausibly

alleged any indication that such potential situation is

imminent.

Because Plaintiff fails to establish standing for

each of the claims in its verified complaint, this Court

lacks subject matter jurisdiction over this case.

34a

Conclusion

After careful consideration of the law, Plaintiff’s

verified complaint, and the parties’ legal briefing and

arguments, the Court ORDERS:

(1) Plaintiff’s motion for temporary restraining

order and preliminary injunction is

DISMISSED.2

(2) This case is DISMISSED.

IT IS SO ORDERED.

/s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: June 4, 2021

2 Even if Plaintiff had established standing and this Court

had jurisdiction, the Memorandum does not carry the force of

law because it has no legal consequences of its own accord.

Rather, it is a general statement of policy. The Memorandum

thus does not violate the First Amendment as it does not restrict

speech.

35a

UNITED STATES DISTRICT COURT

FOR WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

_________________________________________________

THE SCHOOL OF THE OZARKS, INC.,

Plaintiff,

V.

Case No. 6:21-03089-CV-RK

JOSEPH R. BIDEN JR., IN HIS OFFICIAL

CAPACITY AS PRESIDENT OF THE

UNITED STATES; et al.,

Defendants.

JUDGMENT IN A CIVIL ACTION

______ Jury Verdict. This action came before the

Court for a trial by jury. The issues have been tried

and the jury has rendered its verdict.

___X___ Decision by Court. This action has been

considered and a decision has been rendered by the

Court that:

(1) Plaintiff’s motion for temporary restraining

order and preliminary injunction is DISMISSED.

(2) This case is DISMISSED.

IT IS SO ORDERED.

Dated: June 4, 2021

/s/ Paige Wymore-Wynn

Clerk of the Court

Entered: June 7, 2021

/s/ LaTandra Wheeler

Deputy Clerk

36a

February 11, 2021

MEMORANDUM FOR:

Office of Fair Housing & Equal Opportunity

Fair Housing Assistance Program Agencies

Fair Housing Initiatives Program Grantees

FROM: Jeanine M. Worden, Acting Assistant

Secretary for Fair Housing & Equal

Opportunity

SUBJECT: Implementation of Executive Order

13988 on the Enforcement of the Fair

Housing Act

On January 20, 2021, President Biden issued

Executive Order 13988 on Preventing and Combating

Discrimination on the Basis of Gender Identity or

Sexual Orientation. The Executive Order addresses

the Supreme Court’s recent decision in Bostock v

Clayton County, which held that the prohibitions

against sex discrimination in the workplace contained

in Title VII of the Civil Rights Act of 1964 extend to

and include discrimination on the basis of sexual

orientation and gender identity. Relying on this

landmark decision, the Executive Order directs every

federal agency to assess all agency actions taken

under federal statutes that prohibit sex discrimination and to fully enforce those statutes to combat

37a

discrimination based on sexual orientation and

gender identity. HUD’s Office of General Counsel has

concluded that the Fair Housing Act’s sex

discrimination provisions are comparable to those of

Title VII and that they likewise prohibit discrimination because of sexual orientation and gender

identity. Therefore, I am directing HUD’s Office of

Fair Housing and Equal Opportunity (FHEO) to take

the actions outlined in this memo to administer and

fully enforce the Fair Housing Act to prohibit

discrimination because of sexual orientation and

gender identity.

At the core of this Department’s housing mission

is an endeavor to ensure that all people peacefully

enjoy a place they call home, where they are safe and

can thrive, free from discrimination and fear. Yet, this

ideal remains unrealized for lesbian, gay, bisexual,

transgender, and queer-identifying persons, who have

been denied the constitutional promise of equal

protection under the law throughout most of

American history. Courts and governments have

routinely withheld legal legitimacy from loving

couples because of their sex and denied many persons

the freedom to express a gender that defies norms.

These injustices have perpetuated across our civic

institutions: the workplace, the marketplace, places

of education, and many others. But among the most

personal and fundamental of these institutions is

housing, where, when granted the protection of fair

housing law, we all can enjoy the happiness and

freedom to love whom we choose and to safely express

who we are.

We know this discrimination is real and urgently

requires enforcement action. HUD-funded housing

38a

discrimination studies indicate that same-sex couples

and transgender persons in communities across the

country experience demonstrably less favorable treatment than their straight and cisgender counterparts

when seeking rental housing.

Over the past 10 years, the Department has

sought to address housing discrimination on the basis

of sexual orientation and gender identity to the extent

possible in a dynamic public policy and legal

landscape. Beginning in 2012, HUD promulgated a

series of rules to ensure that every person has equal

access to HUD programs without being arbitrarily

excluded, regardless of their sexual orientation,

gender identity, or marital status. In its 2016

harassment rule, HUD reaffirmed its legal

interpretation that the Fair Housing Act’s protection

from discrimination because of sex included

discrimination because of gender identity. Also in

2016, FHEO instructed regional offices that

discrimination because of real or perceived gender

identity is sex discrimination under the Fair Housing

Act, and that discrimination against persons because

of sexual orientation may be sex-based discrimination

when motivated by perceived nonconformity with

gender stereotypes.

This limited enforcement of the Fair Housing

Act’s sex discrimination prohibition, while a step

forward, is insufficient to satisfy the Act’s purpose of

providing fair housing throughout the United States

to the full extent permitted by the United States

Constitution. It is also inconsistent with the Supreme

Court’s interpretation of discrimination because of

sex under Bostock, and it fails to fully enforce the

provisions of the Fair Housing Act to combat

39a

discrimination on the basis of sexual orientation and

gender identity in accordance with Executive Order

13988. For these reasons, I have determined that the

following actions are necessary.

Effective immediately, FHEO shall accept for

filing and investigate all complaints of sex

discrimination, including discrimination because of

gender identity or sexual orientation, that meet other

jurisdictional requirements. Where reasonable cause

exists to believe that discrimination because of sexual

orientation or gender identity has occurred, FHEO

will refer a determination of cause for charge by

HUD’s Office of General Counsel. Moreover, if

discrimination because of gender identity or sexual

orientation occurs in conjunction with discrimination

because of another protected characteristic, all such

bases shall be included within the complaint,

investigated, and charged where reasonable cause

exists. Similarly, FHEO shall conduct all other

activities involving the application, interpretation,

and enforcement of the Fair Housing Act’s prohibition

on sex discrimination to include discrimination

because of sexual orientation and gender identity.

This memorandum also affects state and local

agencies that enter into agreements with the

Department under the Fair Housing Assistance

Program (FHAP), pursuant to which such agencies

process discrimination complaints under laws that

the

Department

certifies

as

“substantially

equivalent” to the Fair Housing Act. In order for

FHAP agencies’ laws to remain substantially

equivalent, they must be administered consistent

with Bostock. To be consistent with Bostock, the state

or local law either must explicitly prohibit

40a

discrimination because of gender identity and sexual

orientation or must include prohibitions on sex

discrimination that are interpreted and applied to

include discrimination because of gender identity and

sexual orientation. HUD will provide further

instruction and technical assistance to FHAP

agencies on the implementation of Bostock.

Similarly, organizations and agencies that receive

grants through HUD’s Fair Housing Initiative

Program (FHIP), in carrying out activities under

these grant agreements, must interpret sex

discrimination under the Fair Housing Act to include

discrimination because of sexual orientation and

gender identity. FHIP provides funds to public and

private not-for-profit entities to conduct various

activities to prevent or eliminate discriminatory

housing practices. These activities provide important

support to the full enforcement of the Fair Housing

Act by informing the public about fair housing rights

and obligations; detecting discriminatory conduct

through investigation and testing; and assisting

persons to file complaints and obtain relief through

legal and administrative forums. HUD will provide

further instruction and technical assistance to FHIP

organizations on the implementation of this order.

In accordance with this directive to fully enforce

the Fair Housing Act’s prohibitions against

discrimination because of sex, including sexual

orientation and gender identity, FHEO Regional

Offices, FHAP agencies and FHIP grantees are

instructed to review, within 30 days, all records of

allegations of discrimination (inquiries, complaints,

phone logs, etc.) received since January 20, 2020.

They are instructed to notify persons who alleged

41a

discrimination because of gender identity or sexual

orientation that their claims may be timely and

jurisdictional for filing.

The Department is committed to delivering the

full promise of the Fair Housing Act. Our FHEO

offices across the country are open and ready to assist

persons who believe they have experienced discrimination because of sexual orientation or gender

identity. We will collaborate with our FHIP and

FHAP partners, particularly over the next several

months, to fully engage our fair housing enforcement,

advocacy, and public education efforts across the

housing market to prevent and combat discrimination

because of sexual orientation and gender identity. I

am deeply proud of the Department’s commitment to

fair housing and the enormous contribution our FHIP

and FHAP partnerships bring to the nation’s fair

housing mission. Together, I know we will forge a

path to the eradication of housing discrimination for

all.

42a

Presidential Documents

Executive Order 13988 of January 20, 2021

Preventing and Combating Discrimination on

the Basis of Gender Identity or Sexual

Orientation

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, it is hereby ordered as follows:

Section 1. Policy. Every person should be treated

with respect and dignity and should be able to live

without fear, no matter who they are or whom they

love. Children should be able to learn without

worrying about whether they will be denied access to

the restroom, the locker room, or school sports. Adults

should be able to earn a living and pursue a vocation

knowing that they will not be fired, demoted, or

mistreated because of whom they go home to or

because how they dress does not conform to sex-based

stereotypes. People should be able to access

healthcare and secure a roof over their heads without

being subjected to sex discrimination. All persons

should receive equal treatment under the law, no

matter their gender identity or sexual orientation.

These principles are reflected in the Constitution,

which promises equal protection of the laws. These

principles are also enshrined in our Nation’s antidiscrimination laws, among them Title VII of the Civil

Rights Act of 1964, as amended (42 U.S.C. 2000e et

seq.). In Bostock v. Clayton County, 590 U.S.__(2020),

43a

the Supreme Court held that Title VII’s prohibition

on discrimination “because of . . . sex” covers

discrimination on the basis of gender identity and

sexual orientation. Under Bostock’s reasoning, laws

that prohibit sex discrimination—including Title IX

of the Education Amendments of 1972, as amended

(20 U.S.C. 1681 et seq.), the Fair Housing Act, as

amended (42 U.S.C. 3601 et seq.), and section 412 of

the Immigration and Nationality Act, as amended (8

U.S.C. 1522), along with their respective

implementing regulations—prohibit discrimination

on the basis of gender identity or sexual orientation,

so long as the laws do not contain sufficient

indications to the contrary.

Discrimination on the basis of gender identity or

sexual orientation manifests differently for different

individuals, and it often overlaps with other forms of

prohibited discrimination, including discrimination

on the basis of race or disability. For example,

transgender Black Americans face unconscionably

high levels of workplace discrimination, homelessness, and violence, including fatal violence.

It is the policy of my Administration to prevent and

combat discrimination on the basis of gender identity

or sexual orientation, and to fully enforce Title VII

and other laws that prohibit discrimination on the

basis of gender identity or sexual orientation. It is also

the policy of my Administration to address

overlapping forms of discrimination.

Sec. 2. Enforcing Prohibitions on Sex Discrimination

on the Basis of Gender Identity or Sexual Orientation.

(a) The head of each agency shall, as soon as

practicable and in consultation with the Attorney

44a

General, as appropriate, review all existing orders,

regulations, guidance documents, policies, programs,

or other agency actions (“agency actions”) that:

(i) were promulgated or are administered by the

agency under Title VII or any other statute or

regulation that prohibits sex discrimination,

including any that relate to the agency’s own

compliance with such statutes or regulations; and

(ii) are or may be inconsistent with the policy set

forth in section 1 of this order.

(b) The head of each agency shall, as soon as

practicable and as appropriate and consistent with

applicable law, including the Administrative

Procedure Act (5 U.S.C. 551 et seq.), consider whether

to revise, suspend, or rescind such agency actions, or

promulgate new agency actions, as necessary to fully

implement statutes that prohibit sex discrimination

and the policy set forth in section 1 of this order.

(c) The head of each agency shall, as soon as

practicable, also consider whether there are

additional actions that the agency should take to

ensure that it is fully implementing the policy set

forth in section 1 of this order. If an agency takes an

action described in this subsection or subsection (b) of

this section, it shall seek to ensure that it is

accounting for, and taking appropriate steps to

combat, overlapping forms of discrimination, such as

discrimination on the basis of race or disability.

(d) Within 100 days of the date of this order, the

head of each agency shall develop, in consultation

with the Attorney General, as appropriate, a plan to

carry out actions that the agency has identified

45a

pursuant to subsections (b) and (c) of this section, as

appropriate and consistent with applicable law.

Sec. 3. Definition. “Agency” means any authority of

the United States that is an “agency” under 44 U.S.C.

3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C.

3502(5).

Sec. 4. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive

department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of

Management and Budget relating to budgetary,

administrative, or legislative proposals.

(b) This order shall be implemented consistent

with applicable law and subject to the availability of

appropriations.

(c) This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or

entities, its officers, employees, or agents, or any

other person.

THE WHITE HOUSE,

January 20, 2021.

46a

Home / Program Offices / Office of the Chief Financial

Officer (OCFO) / Grants Management & Oversight

Division / Grants Information / Funding Opportunities / FY 2020 FHIP Education and Outreach

Initiative (EOI) - Tester Training

FHIP Education and Outreach Initiative (EOI) Tester Training

The Fair Housing Initiatives Program is a significant

source of funding for FHIP grantees that conduct fair

housing testing in local communities across the

country. Fair housing testing refers to the use of

testers who, without any bona fide intent to rent or

purchase property, obtain a mortgage, seek housing

assistance, or engage in other housing related

activities, pose as prospective renters, or buyers of

real estate, or other applicable roles for the purpose of

determining whether housing providers and others

are complying with the federal Fair Housing Act.

The Department continues to be vigilant about

ensuring that testing performed by testers with FHIP

funds adhere to HUD’s investigatory standards so

that the testing yields credible, objective and

admissible evidence to aid in the enforcement of the

federal Fair Housing Act. The Department

acknowledges that great variation exists in the

quality of fair housing testing performed by FHIP

grantees.

Some

grantees

have

consistently

demonstrated that testing produces strong evidence

that can be used to forge effective legal challenges to

47a

discriminatory housing practices. Still some grantees

exhibit lesser capabilities and uneven or less

accomplished track records. HUD recognizes the need

to continually improve and standardize the quality of

testing provided by testers employed by FHIP

grantees.

Preference Points HUD encourages activities in

Promise Zones, Opportunity Zones (OZ), or activities

in collaboration with HBCUs. HUD may award two

(2) points for qualified activities supporting either

initiative. In no case will HUD award more than two

preference points for these activities.

Funding of up to $250,000 is available through this

NOFA. HUD expects to make approximately 1 awards

from the funds available under this NOFA.

Funding Opportunity Number: FR-6400-N-71

Opportunity Title: Education and Outreach –

Tester Training NOFO

Competition ID: FR-6400-N-71

CFDA No: 14.416

OMB Approval Number: 2529-0033

Opening Date: July 16, 2020

Application Due Date: August 17, 2020

48a

Contact information for grantees of the Fair Housing

Initiatives Program (FHIP)

Organizations that participate in HUD’s Fair

Housing Initiatives Program (FHIP) may be able to

speak to a housing provider on your behalf, conduct

an investigation, including testing, to help determine

if you experienced discrimination, or otherwise

provide you with information and assistance.

Please select a state from the list or from the map

below.

49a

Name

Address

City State

Metropolitan 1027 S.

St.

MO

St. Louis

Vandeventer Louis

Equal

Avenue

Housing and

Opportunity

Council

Zip

Code

Phone

63110

(314)

5345800

Ext.

7018

FHIP

Initiative

Education and

Outreach

Initiative (EOI);

Private

Enforcement

Initiative (PEI)

50a

NATIONAL FAIR HOUSING MONTH, 2021

10177

_______

BY THE PRESIDENT OF THE UNITED STATES

OF AMERICA

A PROCLAMATION

Exactly 1 week after the assassination of Dr.

Martin Luther King, Jr., struck at the soul of our

Nation, President Lyndon B. Johnson signed a

landmark piece of legislation -- an enduring

testament to the ideals of Dr. King that enshrined a

portion of his legacy in the lives and laws of the

American people. Fifty-three years later, the Fair

Housing Act still serves as a powerful statement

about who we are as a people: the values of equality,

equity, and dignity that we strive to uphold, and the

places where we still have work to do to fulfill our full

promise as a Nation.

The purpose of the Fair Housing Act was to put

an end to inequities in our housing system and

eliminate

racial

segregation

in

American

neighborhoods -- and guarantee that all people in

America have the right to obtain the housing of their

choice, free from discrimination. The law prohibits

discrimination in the sale, rental , and financing of

housing, and requires Federal, State, and local

governments

to

proactively

dismantle

the

discriminatory structures that held back people of

51a

color and other underserved populations from

equitable access to the neighborhoods of their choice

By helping to create a fairer housing system, the

law seeks to do more than just open up American

neighborhoods to all Americans. Access to quality

housing is about more than having a roof over your

head -- it is the foundation for achieving better

educational, employment, and health outcomes, as

well as one of the most important ways that families

build wealth that they can pass along across the

generations. The Fair Housing Act was created at a

time when Federal and State policies held that dream

at arm’s length from far too many Black, Brown,

Native, and Asian American families through the

insidious practices of redlining and lending

discrimination.

Over the course of 53 years, the law has made a

world of difference in the lives of countless families

and communities. We have also improved upon it

through the years; as a Senator, I was proud to cosponsor the 1988 Fair Housing Act amendments that

extended the law’s protections to Americans with

disabilities and families with children, and just 2

months ago my Administration issued a rule change

to ensure that the law finally guards against

discrimination targeting LGBTQ+ Americans. But

the truth of the matter is that we have not fully

achieved the goals of the Fair Housing Act -- we still

have so much work to do.

Many of our neighborhoods remain as segregated

today as they were in the middle of the 20th century,

and the racial wealth gap is wider now than it was

when the Fair Housing Act was passed. Though our

52a

Nation has come a long way in many regards, our

promise will not be fulfilled as long as anyone in

America is denied a good home or a fair shot because

of who they are. It is our shared duty to work together

to ensure that every person has equitable access to all

of the opportunities our communities provide -- and

that no one faces barriers to getting a good education,

having quality health care, eating healthy food, or

finding stable employment that allows their family to

thrive solely because of where they live. This is a

moral responsibility that cannot wait, particularly at

a time when the COVID-19 pandemic has further

highlighted and exacerbated the lack of safe,

affordable places to live for far too many people in

America.

To affirm equal opportunity as the bedrock of our

democracy -- and to enlist the entire Federal

Government to address entrenched disparities in our

laws, public policies, and institutions -- I signed an

Executive Order on Advancing Racial Equity and

Support for Underserved Communities Through the

Federal Government on my first day in office. To

ensure that the Federal Government continues to

prioritize the right to fair housing and actively enforce

our Federal civil rights laws, I also signed a

Presidential Memorandum on Redressing Our

Nation’s and the Federal Government’s History of

Discriminatory Housing Practices and Policies during

my first week as President. My Administration will

continue our efforts to close persistent racial gaps in

wages, housing, credit, lending opportunities, and

access to higher education -- gaps that, if closed,

would add an estimated $5 trillion in gross domestic

product in the American economy over the next 5

53a

years. We are committed to doing all we can to end

unlawful housing discrimination and advance equity

for all underserved populations, fulfill the full

promise of the Fair Housing Act, and put the

American dream within reach of all Americans.

NOW, THEREFORE, I, JOESPH R. BIDEN JR.,

President of the United States of America, by virtue

of the authority vested in me by the Constitution and

the laws of the United States, do hereby proclaim

April 2021 as National Fair Housing Month. I call

upon the people of this Nation to help secure freedom

and justice for every American by taking action to

fulfill the promise made by the Fair Housing Act to

ensure everyone has free and fair housing choice.

IN WITNESS WHEREOF, I have hereunto set my

hand this eleventh day of April, in the year of our Lord

two thousand twenty-one, and of the Independence of

the United States of America the two hundred and

forty-fifth.

[FR Doc. 2021-07861 Filed: 4/14/2021 8:45 am;

Publication Date: 4/15/2021]