Petition for Writ of Certiorari — Waples Mobile Home Park Limited Partnership, et al., Petitioners v. Jose Dagoberto Reyes, et al.

No. __-____

IN THE

Supreme Court of the United States

__________

WAPLES MOBILE HOME PARK LIMITED PARTNERSHIP;

WAPLES PROJECT LIMITED PARTNERSHIP; AND

A.J. DWOSKIN & ASSOCIATES, INC.,

Petitioners,

v.

ROSY GIRON DE REYES; JOSE DAGOBERTO REYES;

FELIX ALEXIS BOLAÑOS; RUTH RIVAS; YOVANA JALDIN

SOLIS; ESTEBAN RUBEN MOYA YRAPURA; ROSA ELENA

AMAYA; AND HERBERT DAVID SARAVIA CRUZ,

Respondents.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

MICHAEL S. DINGMAN

MCGUIREWOODS LLP

1750 Tysons Boulevard

Suite 1800

Tysons, VA 22102

(703) 712-5000

JONATHAN Y. ELLIS

MCGUIREWOODS LLP

888 16th Street, N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

DAVID C. FREDERICK

Counsel of Record

COLLIN R. WHITE

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

June 21, 2024

(Additional Counsel Listed On Inside Cover)

GRAYSON P. HANES

ODIN, FELDMAN & PITTLEMAN,

P.C.

1775 Wiehle Avenue

Suite 400

Reston, VA 20190

(703) 218-2195

QUESTIONS PRESENTED

1. Whether a plaintiff relying on a disparateimpact theory of liability under the Fair Housing Act,

42 U.S.C. § 3601 et seq., carries her prima facie burden

by showing only a preexisting statistical disparity

within the affected population that the defendant did

not create.

2. Whether a defendant carries its burden to rebut

such a case by showing that the challenged policy

significantly serves a legitimate business purpose, or

instead must further show that the policy is necessary

to serve that purpose.

ii

PARTIES TO THE PROCEEDINGS

Petitioners Waples Mobile Home Park Limited

Partnership, Waples Project Limited Partnership, and

A.J. Dwoskin & Associates, Inc. were the defendants

in the district court and the appellees in the court of

appeals.

Respondents Rosy Giron de Reyes, Jose Dagoberto

Reyes, Felix Alexis Bolaños, Ruth Rivas, Yovana

Jaldin Solis, Esteban Ruben Moya Yrapura, Rosa

Elena Amaya, and Herbert David Saravia Cruz were

the plaintiffs in the district court and the appellants

in the court of appeals.

iii

RULE 29.6 STATEMENTS

Pursuant to this Court’s Rule 29.6, petitioners

Waples Mobile Home Park Limited Partnership,

Waples Project Limited Partnership, and A.J. Dwoskin

& Associates, Inc. state the following:

Waples Mobile Home Park Limited Partnership

is not a publicly held corporation and has no parent

company. No publicly held corporation owns 10% or

more of Waples Mobile Home Park Limited Partnership.

Waples Project Limited Partnership is not a publicly

held corporation and has no parent company. No

publicly held corporation owns 10% or more of Waples

Project Limited Partnership.

A.J. Dwoskin & Associates, Inc. is not a publicly

held corporation and has no parent company. No

publicly held corporation owns 10% or more of A.J.

Dwoskin & Associates, Inc.

iv

RELATED CASES

Reyes, et al. v. Waples Mobile Home Park Ltd. P’ship,

et al., 91 F.4th 270 (4th Cir. Jan. 23, 2024) (No. 221660)

Reyes, et al. v. Waples Mobile Home Park Ltd. P’ship,

et al., 602 F. Supp. 3d 890 (E.D. Va. May 6, 2022)

(No. 1:16-cv-563)

Waples Mobile Home Park Ltd. P’ship, et al. v. Reyes,

et al., 139 S. Ct. 2026 (May 13, 2019) (No. 18-1217)

(denying certiorari)

Reyes, et al. v. Waples Mobile Home Park Ltd. P’ship,

et al., 903 F.3d 415 (4th Cir. Sept. 12, 2018) (No. 171723)

Reyes, et al. v. Waples Mobile Home Park Ltd. P’ship,

et al., 251 F. Supp. 3d 1006 (E.D. Va. Apr. 18, 2017)

(No. 1:16-cv-563)

Reyes, et al. v. Waples Mobile Home Park Ltd. P’ship,

et al., 205 F. Supp. 3d 782 (E.D. Va. Sept. 1, 2016)

(No. 1:16-cv-563)

v

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS ......................... ii

RULE 29.6 STATEMENTS ....................................... iii

RELATED CASES ..................................................... iv

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

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTION.......................................................... 3

STATUTORY PROVISIONS INVOLVED ................. 3

STATEMENT OF THE CASE .................................... 3

A. Legal Background ............................................ 3

B. Factual And Procedural Background ............ 11

REASONS FOR GRANTING THE PETITION ....... 16

I. THE FOURTH CIRCUIT’S DECISION

DEEPENS DIVISION IN THE LOWER

COURTS ABOUT AN FHA DISPARATE-IMPACT PLAINTIFF’S PRIMA

FACIE BURDEN ........................................... 16

II. THE FOURTH CIRCUIT’S CONSTRUCTION OF AN FHA DEFENDANT’S REBUTTAL BURDEN CONFLICTS WITH THE DECISIONS OF

OTHER COURTS OF APPEALS .................. 22

III. THE QUESTIONS PRESENTED ARE

IMPORTANT.................................................. 25

vi

A. The Fourth Circuit’s Erroneous Dilution Of Inclusive Communities’ “Robust Causality Requirement” Warrants Review ............................................. 25

B. The Fourth Circuit’s Erroneous Account Of An FHA Defendant’s Rebuttal Burden Warrants Review ................... 29

C. This Case Is An Ideal Vehicle For

Clarifying Inclusive Communities ............ 31

CONCLUSION.......................................................... 31

APPENDIX:

Opinion of the United States Court of Appeals

for the Fourth Circuit, Reyes, et al. v. Waples

Mobile Home Park Ltd. P’ship, et al., No. 221660 (Jan. 23, 2024) .................................................. 1a

Order of the United States District Court for

the Eastern District of Virginia (Alexandria

Division), Reyes, et al. v. Waples Mobile Home

Park Ltd. P’ship, et al., Case No. 1:16-cv-563

(May 6, 2022)........................................................... 17a

Fair Housing Act, 42 U.S.C. § 3601 et seq.:

§ 804(a), 42 U.S.C. § 3604(a)........................ 36a

vii

TABLE OF AUTHORITIES

Page

CASES

Bank of Am. Corp. v. City of Miami:

581 U.S. 189 (2017) ...................................... 7-8, 25

140 S. Ct. 1259 (2020) ........................................... 8

Bazemore v. Friday, 478 U.S. 385 (1986) ................. 26

City of Miami Gardens v. Wells Fargo & Co.,

931 F.3d 1274 (11th Cir. 2019) ............................. 8

Comcast Corp. v. National Ass’n of Afr. Am.Owned Media, 589 U.S. 327 (2020)..................... 31

Crawford v. Marion Cnty. Election Bd., 553 U.S.

181 (2008) ............................................................ 27

Ellis v. City of Minneapolis, 860 F.3d 1106

(8th Cir. 2017)........................................... 17-18, 20

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) ....... 3,

25, 27-28

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .... 1, 4,

6, 31

Holmes v. Securities Inv. Prot. Corp., 503 U.S.

258 (1992) .............................................................. 7

Inclusive Cmtys. Project, Inc. v. Heartland Cmty.

Ass’n, Inc., 824 F. App’x 210 (5th Cir. 2020) ...... 21

Inclusive Cmtys. Project, Inc. v. Lincoln Prop.

Co.:

920 F.3d 890 (5th Cir. 2019), cert. denied,

140 S. Ct. 2506 (2020) .................................... 19-21

930 F.3d 660 (5th Cir. 2019) ............................... 20

140 S. Ct. 2506 (2020) ......................................... 20

viii

Keller v. City of Fremont, 719 F.3d 931 (8th Cir.

2013).............................................. 13, 16-17, 25, 28

Louisiana Fair Hous. Action Ctr., Inc. v. Azalea

Garden Props., L.L.C., 82 F.4th 345 (5th Cir.

2023)..................................................................... 21

Magner v. Gallagher, 565 U.S. 1013 (2011) ............... 8

Mandala v. NTT Data, Inc., 975 F.3d 202

(2d Cir. 2020) ....................................................... 26

Massachusetts Fair Hous. Ctr. v. HUD, 496 F.

Supp. 3d 600 (D. Mass. 2020) ............................. 10

Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d

581 (2d Cir. 2016) ...........................................24, 29

Oviedo Town Ctr. II, L.L.L.P. v. City of Oviedo,

759 F. App’x 828 (11th Cir. 2018) .................. 18-20

Plyler v. Doe, 457 U.S. 202 (1982) ............................ 28

Reyes v. Waples Mobile Home Park Ltd. P’ship:

205 F. Supp. 3d 782 (E.D. Va. 2016), vacated

and remanded, 903 F.3d 415 (4th Cir. 2018),

cert. denied, 139 S. Ct. 2026 (2019) ................ 3, 11

251 F. Supp. 3d 1006 (E.D. Va. 2017),

vacated and remanded, 903 F.3d 415 (4th

Cir. 2018), cert. denied, 139 S. Ct. 2026

(2019) .......................................................... 3, 11-12

903 F.3d 415 (4th Cir. 2018), cert. denied,

139 S. Ct. 2026 (2019) ............................... 3, 12-14,

16, 20, 25, 28

Ricci v. DeStefano, 557 U.S. 557 (2009) .................. 5-6

Smith v. City of Jackson, 544 U.S. 228 (2005)........... 7

Southwest Fair Hous. Council, Inc. v. Maricopa

Domestic Water Improvement Dist., 17 F.4th

950 (9th Cir. 2021)............................... 21-24, 29-30

ix

Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive

Cmtys. Project, Inc., 576 U.S. 519 (2015)........ 1-10,

13, 16-18, 20,

22, 24-26, 28-31

United States v. Aguilar, 477 F. App’x 1000

(4th Cir. 2012)...................................................... 14

United States v. Costello, 666 F.3d 1040 (7th Cir.

2012)..................................................................... 15

United States v. Munsingwear, Inc., 340 U.S. 36

(1950) ..................................................................... 8

Waples Mobile Home Park Ltd. P’ship v. Reyes,

139 S. Ct. 2026 (2019) ......................................... 14

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

(1989) ...................................................... 5-7, 23, 26

Watson v. Fort Worth Bank & Tr., 487 U.S. 977

(1988). ...................................................... 4-6, 29-30

CONSTITUTION, STATUTES, AND REGULATIONS

U.S. Const.:

art. III .................................................................. 21

amend. XIV .......................................................... 28

Civil Rights Act of 1964, tit. VII, 42 U.S.C.

§ 2000e et seq. .............................................. 6-7, 27

Civil Rights Act of 1991, Pub. L. No. 102-166,

105 Stat. 1071 ........................................................ 7

Fair Housing Act, 42 U.S.C. § 3601 et seq. .. 1-5, 7-11,

16, 18-19, 22, 27-31

§ 804(a), 42 U.S.C. § 3604(a) ................................. 3

§ 808(a), 42 U.S.C. § 3608(a) ................................. 8

x

§ 815, 42 U.S.C. § 3614a ........................................ 8

8 U.S.C. § 1324(a)(1)(A)(iii) .................................12, 14

28 U.S.C. § 1254(1) ..................................................... 3

28 U.S.C. § 1292(b) ................................................... 21

42 U.S.C. § 3535(d) ..................................................... 8

Va. Code § 55-248.41:1 (repealed 2019) ................... 12

24 C.F.R.:

§ 100.500 (2014) ..................................................... 9

§ 100.500(b)(1) (2020) ............................................ 9

§ 100.500(b)(3) (2020) ............................................ 9

§ 100.500(c)(1) ...................................................... 10

§ 100.500(c)(2) (2020) ............................................ 9

§ 100.500(c)(2) ...................................................... 10

§ 100.500(c)(3) (2020) ............................................ 9

§ 100.500(c)(3) ...................................................... 11

§ 100.500(d)(1)(i) (2020) ...................................... 10

ADMINISTRATIVE MATERIALS

Final Rule, Implementation of the Fair Housing

Act’s Discriminatory Effects Standard, 78

Fed. Reg. 11,460 (Feb. 15, 2013) ........................ 8-9

Final Rule, Reinstatement of HUD’s Discriminatory Effects Standard, 88 Fed. Reg. 19,450

(Mar. 31, 2023)................................................ 10-11

xi

OTHER MATERIALS

Defs.’ Unopposed Mot. To Stay Proceedings,

Massachusetts Fair Hous. Ctr. v. HUD, No.

3:20-cv-11765-MGM, ECF No. 39 (D. Mass.

Feb. 11, 2021) ...................................................... 10

Waples Mobile Home Park Limited Partnership,

Waples Project Limited Partnership, and A.J.

Dwoskin & Associates, Inc. respectfully petition for a

writ of certiorari to review the judgment of the Fourth

Circuit.

INTRODUCTION

In Texas Department of Housing & Community

Affairs v. Inclusive Communities Project, Inc., 576

U.S. 519 (2015), the Court held by a 5-4 margin that

the Fair Housing Act (“FHA”) proscribes disparateimpact discrimination. But it also underscored “key

respects” in which “disparate-impact liability has

always been properly limited.” Id. at 540. Without

these “safeguards,” the Court explained, “disparateimpact liability might displace valid governmental

and private priorities, rather than solely ‘removing

artificial, arbitrary, and unnecessary barriers’ ” that,

“in turn, would set our Nation back in its quest to

reduce the salience of race in our social and economic

system.” Id. at 544 (quoting Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971)) (cleaned up). Yet both of

Inclusive Communities’ core safeguards have become

mired in disagreements among the lower courts – disagreements this case exemplifies.

The first concerns Inclusive Communities’ “robust

causality requirement,” which “ensures that racial

imbalance does not, without more, establish a prima

facie case of disparate impact and thus protects

defendants from being held liable for racial disparities

they did not create.” Id. at 542 (cleaned up). The

circuits have failed to fashion any common causality

standard. Instead, they have recognized at least four

distinct approaches to causality (of which the court

below has adopted the least “robust”).

2

The second concerns the “leeway” FHA defendants

have “to state and explain the valid interest served

by their policies.” Id. at 541. Below, respondents

conceded that petitioner-defendants’ asserted interest

was legitimate, and it is beyond reasonable dispute

that the policy served that interest. But the court

nevertheless held that the defendants could not carry

their burden, in effect faulting them for failing to

show the challenged policy was necessary to serve

that interest. This, too, departs from other circuits’

holdings.

The Court should resolve both questions. The

important reasons Inclusive Communities gave for

imposing these “safeguards” have not dissipated in

the last decade, and the circuits now are deeply

entrenched in their confusion regarding how to apply

them. Further, the federal agency charged with

enforcing the FHA has changed its position on the

questions presented with changing administrations –

twice. This Court’s guidance thus is necessary.

This case provides an ideal vehicle for resolving the

questions presented, and the courts below have issued

conflicting opinions airing all sides of the relevant

issues. There is no benefit to further percolation and

substantial harm to allowing the conflicts to fester:

although this Court emphasized imposition of “safeguards,” such measures protect nothing if courts

and enforcers apply them inconsistently. The churn

will continue until this Court ends it, and this case

supplies a clean vehicle to do so.

3

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-16a)

is reported at 91 F.4th 270. The order of the district

court (App. 17a-35a) is reported at 602 F. Supp. 3d 890.

A prior decision of the court of appeals (herein

“Reyes I ”) is reported at 903 F.3d 415. The memorandum opinions of the district court relevant to that

prior decision are reported at 251 F. Supp. 3d 1006

and 205 F. Supp. 3d 782, respectively.

JURISDICTION

The court of appeals entered its judgment on January 23, 2024. On April 17, 2024, Chief Justice Roberts

extended the time for filing a petition for a writ of certiorari to and including June 21, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 804(a) of the Fair Housing Act, 42 U.S.C.

§ 3604(a), is reproduced at App. 36a.

STATEMENT OF THE CASE

A. Legal Background

1. The Fair Housing Act (“FHA”) prohibits the

denial of housing opportunities “because of ” one’s

race, national origin, or any one of several specifically

enumerated protected characteristics. 42 U.S.C.

§ 3604(a). Alienage and citizenship are not among

those characteristics. See Espinoza v. Farah Mfg. Co.,

414 U.S. 86, 88 (1973).

In Texas Department of Housing & Community

Affairs v. Inclusive Communities Project, Inc., 576

U.S. 519 (2015), the Court held that the FHA prohibits

not only intentional discrimination – “disparate treatment” liability – but also certain housing practices

with a “disparate impact” on members of a protected

4

group. See id. at 536-40. A practice can have a “disparate impact” if it is “adopted without a deliberately

discriminatory motive,” but “in operation” is “functionally equivalent to intentional discrimination.” Watson

v. Fort Worth Bank & Tr., 487 U.S. 977, 987 (1988).

In recognizing disparate-impact liability under the

FHA, the Court underscored that the theory “mandates

the ‘removal of artificial, arbitrary, and unnecessary

barriers,’ not the displacement of valid governmental

policies,” or the valid interests of private developers.

576 U.S. at 540 (quoting Griggs v. Duke Power Co., 401

U.S. 424, 431 (1971)). The Court thus explained that

“disparate-impact liability has always been properly

limited in key respects that avoid the serious constitutional questions that might arise under the FHA,

for instance, if such liability were imposed based solely

on a showing of a statistical disparity.” Id.

One limitation is “[a] robust causality requirement,”

which “ensures that racial imbalance does not, without more, establish a prima facie case of disparate

impact and thus protects defendants from being held

liable for racial disparities they did not create.” Id. at

542 (cleaned up). In other words, “a prima facie case

of disparate impact” requires a plaintiff to “produce

statistical evidence demonstrating a causal connection”

between a challenged policy and “a disparate impact.”

Id. at 543.

Another limitation is the “leeway” defendants enjoy

“to state and explain the valid interest served by their

policies.” Id. at 541. That is, on rebuttal, “private developers [must] be allowed to maintain a policy if they

can prove it is necessary to achieve a valid interest.”

Id.; see also id. at 543 (similar for government defendants). “And before rejecting a business justification –

or, in the case of a governmental entity, an analogous

5

public interest – a court must determine that a plaintiff has shown that there is ‘an available alternative

practice that has less disparate impact and serves the

entity’s legitimate needs.’ ” Id. at 533 (quoting Ricci v.

DeStefano, 557 U.S. 557, 578 (2009)) (cleaned up).

In Watson, a plurality of an evenly divided, eightmember Court, led by Justice O’Connor, addressed

“why the evidentiary standards that apply in [disparateimpact] cases should serve as adequate safeguards

against the danger” of encouraging employers to use

racial preference to protect against liability. 487 U.S.

at 993-94. One such safeguard, the plurality concluded,

was that “causation must be proved” in disparateimpact cases because it would be “unrealistic to suppose

that employers can eliminate, or discover and explain,

the myriad of innocent causes that may lead to statistical imbalances in the composition of their work

forces.” Id. at 992, 994. It explained that plaintiffs

must “offer statistical evidence of a kind and degree

sufficient to show that the practice in question has

caused the exclusion of applicants for jobs . . . because

of their membership in a protected group.” Id. at 994.

The Court subsequently adopted the Watson plurality’s “specific causation requirement” in Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989). The Court

held that “statistical disparities,” standing alone, “will

not suffice to make out a prima facie case of disparate

impact.” Id. at 656, 657. Without such limits, “any

employer who had a segment of his work force that

was – for some reason – racially imbalanced[ ] could be

haled into court and forced to engage in the expensive

and time-consuming task of defending the ‘business

necessity’ of ” its employment practices. Id. at 652.

Inclusive Communities, in turn, held that an FHA

disparate-impact plaintiff must plead (and prove) “a

6

causal connection” and that courts “must . . . examine

with care” whether such facts have been alleged, thus

encouraging “prompt resolution of these cases.” 576

U.S. at 543. The Court also cited circumstances when

causation would be lacking or difficult to show, such

as where “multiple factors . . . go into” a challenged

decision or where “federal law substantially limits [a

housing provider’s] discretion.” Id.

Inclusive Communities’ second limitation drew on what

Title VII law calls the “business necessity” defense.

Id. at 541. “Just as an employer may maintain a workplace requirement that causes a disparate impact if

that requirement is a ‘reasonable measurement of job

performance,’ ” the Court explained, “so too must housing authorities and private developers be allowed to

maintain a policy if they can prove it is necessary to

achieve a valid interest.” Id. (quoting Griggs, 401 U.S.

at 436) (cleaned up); see also id. (explaining that, under

Title VII, “an entity” can “ ‘be liable for disparateimpact discrimination only if the challenged practices

were not job related and consistent with business

necessity’ ”) (quoting Ricci, 557 U.S. at 587) (cleaned up).

This limitation traces to the same line of Title VII

authority. As the Court explained in Wards Cove, “at

the justification stage of such a disparate-impact case,

the dispositive issue is whether a challenged practice

serves, in a significant way, the legitimate employment

goals of the employer.” Wards Cove, 490 U.S. at 659

(citing Watson, 487 U.S. at 997-99, and Griggs, 401

U.S. at 432). Further, “there is no requirement that

the challenged practice be ‘essential’ or ‘indispensable’

to the employer’s business for it to pass muster: this

degree of scrutiny would be almost impossible for most

employers to meet.” Id.

7

If a defendant makes such a showing, Wards Cove

further explained, a plaintiff still may prevail by

showing that “other tests or selection devices, without

a similarly undesirable racial effect, would also

serve the employer’s legitimate hiring interests; by

so demonstrating,” the plaintiff can “prove that” the

defendant’s policy is “a pretext for discrimination.” Id.

at 660 (cleaned up). “Of course, any alternative practices which [the plaintiff ] offer[s] up in this respect

must be equally effective as [the defendant’s] chosen

hiring procedures in achieving [the defendant’s] legitimate employment goals.” Id. at 661.1

2. The Court returned to the FHA in Bank of

America Corp. v. City of Miami, 581 U.S. 189 (2017).

There, the court of appeals had held that, for purposes

of the FHA, allegations that asserted harms were a

policy’s foreseeable result were sufficient to plead that

that policy proximately caused those harms. See id.

at 195-96. This Court vacated and remanded. See id.

at 203. Rather than address the sufficiency of the City

of Miami plaintiff ’s allegations, the Court directed the

court of appeals to consider whether the plaintiff had

plausibly alleged “ ‘some direct relation between the

injury asserted and the injurious conduct alleged.’ ”

Id. at 202-03 (quoting Holmes v. Securities Inv. Prot.

Corp., 503 U.S. 258, 268 (1992)).

Justice Thomas (joined by Justice Kennedy, who

wrote the Inclusive Communities majority opinion,

and Justice Alito, who wrote the lead dissent) wrote

1 Although Congress amended Title VII in the Civil Rights Act

of 1991, Pub. L. No. 102-166, 105 Stat. 1071, “to modify the

Court’s holding in Wards Cove” in certain respects, those changes

do not extend to other statutes like the FHA. Smith v. City of

Jackson, 544 U.S. 228, 240 (2005); see, e.g., Inclusive Cmtys., 576

U.S. at 542 (citing Wards Cove with approval).

8

separately to explain their view that remand was

unnecessary. In light of the “attenuated chain of

causation” connecting “the injurious conduct” and the

“asserted injuries” in that case, those Justices thought

“[t]he Court of Appeals” would “not need to look far to

discern other, independent events that might well

have caused the injuries” the plaintiff had alleged. Id.

at 212-13 (Thomas, J., concurring in part and dissenting in part).2

3. Congress has given the Department of Housing

and Urban Development (“HUD”) authority to administer and make rules regarding the FHA. See 42

U.S.C. §§ 3608(a), 3614a; see also id. § 3535(d) (more

general rulemaking authority). HUD has issued three

conflicting orders that bear on this case.

In 2013 – before Inclusive Communities, but after

the Court had granted review in another case presenting the same issue3 – HUD issued a rule describing

the standards governing disparate-impact claims. See

Final Rule, Implementation of the Fair Housing Act’s

Discriminatory Effects Standard, 78 Fed. Reg. 11,460

(Feb. 15, 2013) (“2013 Rule”). On causation, HUD

stated that “the charging party or plaintiff has the

burden of proving that a challenged practice causes

2 But see Bank of Am. Corp. v. City of Miami, 140 S. Ct. 1259

(2020) (vacating Eleventh Circuit's contrary decision on remand

as moot under United States v. Munsingwear, Inc., 340 U.S. 36

(1950)); see also City of Miami Gardens v. Wells Fargo & Co.,

931 F.3d 1274, 1288, 1297 (11th Cir. 2019) (Pryor, J., joined by

Branch, J., concurring) (on summary judgment in parallel case,

explaining that “it would be difficult to overstate how misguided

this litigation has proved to be,” including because the plaintiff

“produced no evidence of causation”).

3 See Inclusive Cmtys., 576 U.S. at 552 n.4 (Thomas, J., dissenting) (discussing origins of 2013 Rule during the pendency of

Magner v. Gallagher, 565 U.S. 1013 (2011) (granting certiorari)).

9

a discriminatory effect.” Id. at 11,469. HUD also

concluded that, to defend a policy shown to have a disparate impact, an FHA defendant must show that the

challenged policy “is necessary to achieve one or more

substantial, legitimate, nondiscriminatory interests.”

Id. at 11,472; see generally 24 C.F.R. § 100.500 (2014)

(codifying this version of the regulation). In Inclusive

Communities, the Court discussed the 2013 Rule without passing on its correctness. See 576 U.S. at 527.

In 2020, HUD concluded that Inclusive Communities required it to modify the 2013 Rule. Its revision

would have required an FHA plaintiff to show (among

other things) “[t]hat the challenged policy or practice

is arbitrary, artificial, and unnecessary to achieve a

valid interest or legitimate objective,” and “[t]hat there

is a robust causal link between the challenged policy

or practice and the adverse effect on members of a

protected class, meaning that the specific policy or

practice is the direct cause of the discriminatory effect.”

24 C.F.R. § 100.500(b)(1), (3) (2020) (“2020 Rule”).

The defendant then could rebut such an allegation “by

producing evidence showing that the challenged policy

or practice advances a valid interest (or interests) and

is therefore not arbitrary, artificial, and unnecessary.”

Id. § 100.500(c)(2).

If a defendant made that showing, a plaintiff could

not prevail under the 2020 Rule without showing

“by the preponderance of the evidence either that the

interest (or interests) advanced by the defendant are

not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified

interest (or interests) in an equally effective manner

without imposing materially greater costs on, or

creating other material burdens for, the defendant.”

Id. § 100.500(c)(3). The 2020 Rule further provided

10

that among the “Defenses” that “are available to a

defendant in a discriminatory effect case” is a “showing”

that the challenged policy “was reasonably necessary

to comply with,” among other things, federal or state

law. Id. § 100.500(d)(1)(i).

A Massachusetts district court enjoined the 2020

Rule shortly before its effective date. See Massachusetts Fair Hous. Ctr. v. HUD, 496 F. Supp. 3d 600,

603 (D. Mass. 2020). The government appealed that

decision. But in February 2021 – within a month after

the present presidential administration began – the

government withdrew its appeal and declined to

defend the 2020 Rule. See Defs.’ Unopposed Mot. To

Stay Proceedings, Massachusetts Fair Hous. Ctr. v.

HUD, No. 3:20-cv-11765-MGM, ECF No. 39 (D. Mass.

Feb. 11, 2021).

In 2023, the present administration reinstated the

2013 Rule. See Final Rule, Reinstatement of HUD’s

Discriminatory Effects Standard, 88 Fed. Reg. 19,450

(Mar. 31, 2023) (“2023 Rule”). As before, HUD now

omits any reference to Inclusive Communities’ “robust

causality” requirement or to its admonition that the

FHA prohibits only those practices that are “arbitrary,

artificial, and unnecessary”; the rule requires a plaintiff to show only “that a challenged practice caused

or predictably will cause a discriminatory effect.” 24

C.F.R. § 100.500(c)(1). The 2023 Rule also increases

a defendant’s burden, requiring proof “that the challenged practice is necessary to achieve one or more

substantial, legitimate, nondiscriminatory interests

of the respondent or defendant.” Id. § 100.500(c)(2).

If the defendant does so, the 2023 Rule provides,

the “plaintiff may still prevail upon proving that the

substantial, legitimate, nondiscriminatory interests

supporting the challenged practice could be served by

11

another practice that has a less discriminatory effect.”

Id. § 100.500(c)(3).

B. Factual And Procedural Background

1. In 2016, “four noncitizen Latino families from

El Salvador and Bolivia” (respondents in this Court)

sued petitioners (collectively, “Waples”), the owners of

Waples Mobile Home Park (“the Park”), contending

that petitioners had violated the FHA by “enforcing a

policy that required all adults living at the Park to

present proof of legal status in the United States” (the

Policy). App. 3a.

Respondents claimed that the Policy violated the

FHA because it “inflict[s] disproportionate harm

on Latinos as compared to similarly situated nonLatinos.” C.A. App. 68 (¶ 114). In support, respondents relied on statistics showing that Latinos’ share

of the undocumented alien population is higher than

their share of the overall population in Virginia (and

Fairfax County). C.A. App. 57-59 (¶¶ 58-63).

The district court partially denied a motion to dismiss

respondents’ FHA claim. It held that respondents

could not proceed on a disparate-impact theory, but

that they could proceed on a disparate-treatment

theory. 205 F. Supp. 3d 782, 789-95 (E.D. Va. Sept. 1,

2016); see also C.A. App. 693-94. It reasoned that

respondents’ “use of the disparate impact theory in

this case is not consistent with a robust causality

requirement” because “the disparate impact on plaintiffs as Latinos is incidental to the Policy’s effect on all

illegal aliens.” 205 F. Supp. 3d at 792, 793.

The district court later granted partial summary

judgment on respondents’ remaining claims, including

their FHA disparate-treatment claim. 251 F. Supp. 3d

1006 (E.D. Va. Apr. 18, 2017); C.A. App. 693-94. It

concluded that the disparate-treatment claim was a

12

“nonstarter[ ]” because “the undisputed factual record

discloses that plaintiffs did not qualify to renew leases

under the Policy and Park rules. This is because some

adult occupants in plaintiffs’ households could not

provide the requisite forms showing lawful status – a

requirement that applied uniformly to every household and applicant seeking to rent at the Park.” 251

F. Supp. 3d at 1015 (citation omitted). The court

further rejected respondents’ suggestion that the Policy is pretextual because Waples did not immediately

issue eviction orders, but instead put the renters on

month-to-month leases (requiring a correspondingly

higher rent). Id. at 1018. It explained that, in this

respect, respondents “seek to have it both ways: they

contend that [petitioners] invidiously discriminated

by choosing the less drastic option (changing [respondents’] rent terms in lieu of immediate eviction),

and that [petitioners] should have avoided liability

under” federal law that criminalized the harboring

of undocumented aliens4 “by risking liability under”

state law that limited a landlord’s discretion to evict

tenants immediately. Id.; see also id. at 1024 (discussing respondents’ claims under Virginia Code § 55248.41:1 (repealed 2019)).

Respondents then voluntarily dismissed their

remaining claims and appealed only the district

court’s dismissal of their disparate-impact theory.

C.A. App. 1101, No. 17-1723 (4th Cir. Oct. 16, 2017);

903 F.3d 415, 422-23 (4th Cir. Sept. 12, 2018).

4 See 8 U.S.C. § 1324(a)(1)(A)(iii) (prohibiting “[a]ny person”

from, “knowing or in reckless disregard of the fact that an alien

has come to, entered, or remains in the United States in violation

of law, conceal[ing], harbor[ing], or shield[ing]” that alien “from

detection . . . in any place, including any building”).

13

2. In Reyes I, a divided panel of the Fourth Circuit

vacated and remanded. The majority held that

respondents had sufficiently alleged “robust causality”

because their state-wide and county-wide demographic

statistics alone established that the Policy “was likely

to cause Latino tenants at the Park to be disproportionately subject to eviction compared to non-Latino

tenants at the Park.” 903 F.3d at 428-29. The majority said that it was required to “infer that Congress

intended to permit disparate-impact liability for

policies aimed at illegal immigrants when the policy

disparately impacts a protected class, regardless of

any correlation between the two.” Id. at 431-32.

Judge Keenan dissented, concluding that respondents

had “not alleged facts satisfying the ‘robust causality’

standard.” Id. at 433-34. She concluded the Policy

“disproportionately impacts Latinos not because they

are Latino, but because Latinos are the predominant

sub-group of undocumented aliens in a specific

geographical area.” Id. at 434. She further explained

that “[s]uch geographical happenstance,” which

“link[s] disparate impact liability to the coincidental

location of certain undocumented aliens,” could not

be reconciled with a “robust” causation requirement

or with “the aim of the FHA to avoid ‘perpetuating

segregation.’ ” Id. (quoting Inclusive Cmtys., 576 U.S.

at 540). She further emphasized that “accepting the

plaintiffs’ theory of disparate impact liability would

expand the FHA beyond its stated terms to protect

undocumented aliens as a class, based solely on an

allegation of disparate impact within that class.” Id.

(citing Keller v. City of Fremont, 719 F.3d 931, 949 (8th

Cir. 2013) (opinion of Loken, J.)).

The panel majority remanded the case for further

proceedings regarding Waples’ claim that the policy

14

served a valid interest. Waples petitioned for a writ

of certiorari, which the Court denied. See 139 S. Ct.

2026 (2019) (No. 18-1217).

3. On remand, the district court again granted

summary judgment for petitioners, relying on their

interest in avoiding prosecution under the antiharboring statute. See supra p. 12 n.4 (citing 8 U.S.C.

§ 1324(a)(1)(A)(iii)). Respondents appealed. The

court of appeals reversed. It did not revisit Reyes I,

but instead “start[ed] from [its] holding” on the pleadings that respondents “had satisfied their burden

at Step One to show a causal connection between the

Policy and an attendant disparate impact on Latino

Residents.” App. 9a.

The court of appeals acknowledged (as respondents

had conceded) that “[a]voiding criminal liability can

certainly serve as the basis for a business necessity

defense.” App. 11a. Further, it never denied that the

Policy permits Waples to avoid anti-harboring liability. Yet it rejected Waples’ defense for two reasons.

First, it emphasized that “renting to an undocumented

person” is not sufficient to prove a violation of the antiharboring statute absent proof of an intent to harbor

that person. App. 12a. In reaching this mens rea

holding, the court limited the only circuit precedent

addressing the question that was on the books when

Waples began enforcing the Policy. See id. (discussing

United States v. Aguilar, 477 F. App’x 1000 (4th Cir.

2012)). The court also credited the present Department

of Justice’s representation in an amicus brief that

it “does not prosecute residential landlords merely

because they do not, in the normal course of business,

check the immigration status of every person living in

their rentals.” App. 14a. Without addressing contrary

15

positions the Department previously has taken,5 the

court held that, because “the anti-harboring statute

does not plausibly put Waples at risk for prosecution

simply for leasing to families with undocumented

immigrants . . . , Waples did not satisfy its burden at

Step Two because its Policy did not serve in any realistic way to avoid liability under the anti-harboring

statute.” App. 14a-15a.

Second, the court concluded that Waples’ evidence

was “simply too thin to support a business necessity

defense.” App. 15a. It doubted the sincerity of Waples’

concern about avoiding prosecution, primarily pointing to a period during which Waples had not enforced

the Policy. Id. It further stated that, “[i]f Waples was

truly concerned about being prosecuted for housing

undocumented immigrants, its expected course would

be to remove such tenants from the Park as quickly

as possible.” Id. The court thus reasoned that Waples

“would have a difficult time explaining to a prosecutor

why, instead of evicting undocumented immigrants,

it opted to” put them on month-to-month leases (with

higher rent, which the court derided as “a surcharge”)

“instead.” App. 16a. The court did not address the

state-law limitations on eviction discussed above. See

supra pp. 11-12. It remanded the case again. App.

16a.

5 See, e.g., United States v. Costello, 666 F.3d 1040, 1043, 1048

(7th Cir. 2012) (rejecting government’s position “that ‘to harbor’

just means to house a person” and its further assurance “not to

worry” on the ground that “judges can rely on prosecutors to

avoid bringing cases at the outer margin of the government’s

sweeping definition of ‘harboring’ ”).

16

REASONS FOR GRANTING THE PETITION

The Court should grant the petition because both

of Inclusive Communities’ “safeguards” against overly

expansive disparate-impact liability have broken

down. The Fourth Circuit’s is the least “robust” of

four different readings of Inclusive Communities’

“robust causality” requirement. Even circuits that deny

having picked a side have recognized the split. The

Fourth Circuit’s construction of a defendant’s rebuttal

burden also conflicts with that of two other circuits.

I. THE FOURTH CIRCUIT’S DECISION DEEPENS DIVISION IN THE LOWER COURTS

ABOUT AN FHA DISPARATE-IMPACT

PLAINTIFF’S PRIMA FACIE BURDEN

The Fourth Circuit erroneously concluded that

respondents satisfied Inclusive Communities’ “robust

causality requirement” based solely on the preexisting

makeup of the undocumented-immigration population.

That decision exacerbates the circuits’ confusion about

what that “requirement” requires.

Eighth Circuit. As Judge Keenan recognized in

her Reyes I dissent, the Fourth Circuit broke from a

decision of the Eighth Circuit almost on all fours with

this case. In a divided decision in Keller v. City of

Fremont, 719 F.3d 931 (8th Cir. 2013), Judge Loken

rejected as “unsound” a disparate-impact challenge

to a local ordinance that prohibited landlords from

providing housing to undocumented aliens. Id. at

949.6 The Keller plaintiffs had merely “cit[ed] statistics showing that a large number of the City’s foreign6 The other member of the majority, Judge Colloton, concurred

in the dismissal of the Keller plaintiffs’ claims but would

have done so on standing grounds rather than on the grounds

articulated by Judge Loken. See 719 F.3d at 951-53 (Colloton, J.,

concurring in part and concurring in the judgment).

17

born population came from Latin American countries,”

such that enforcement of the challenged ordinance

“would result in a reduction of the Hispanic population in Fremont.” Id. at 948. Judge Loken found these

statistics failed “to identify the ‘relevant population’ to

be compared.” Id.

For Judge Loken, “[i]t would be illogical to impose

FHA disparate impact liability based on the effect an

otherwise lawful ordinance may have on a sub-group

of the unprotected class of aliens not lawfully present

in this country.” Id. at 949. He found “no hint in

the FHA’s history and purpose that such a law or

ordinance, which is valid in all other respects, violates

the FHA if local statistics can be gathered to show that

a disproportionate number of the adversely affected

aliens are members of a particular ethnic group.” Id.

He noted in particular that such a claim would be

based on nothing more than happenstance: “In most

cases today, [a disproportionate number of undocumented aliens] would of course be Latinos, but at various

times in our history, and in various locales, the

‘disparate impact’ might have been on immigrants

from . . . other parts of the world.” Id.

Although Keller preceded Inclusive Communities,

the Eighth Circuit has read the latter decision to

impose a more stringent standard. In Ellis v. City of

Minneapolis, 860 F.3d 1106 (8th Cir. 2017), a landlord

catering predominantly to low-income tenants (a disproportionate percentage of whom were, in the affected

area, members of a protected group) challenged a city

government’s housing-code enforcement policies. Id.

at 1108-09. Particularly relevant here is the court’s

treatment of the challenged provisions of the city’s

housing code. The Eighth Circuit read Inclusive Communities to impose a threshold requirement that an

18

FHA plaintiff “point to an ‘artificial, arbitrary, and

unnecessary’ policy causing the problematic disparity.”

Id. at 1114. Affirming the district court’s judgment,

the Eighth Circuit held that the plaintiffs had failed

to allege “that the housing-code standards complained

of are arbitrary and unnecessary,” requiring dismissal.

Id. at 1112.

That standard would require judgment in petitioners’ favor, because respondents have no basis to claim

that the Policy is artificial, arbitrary, and unnecessary.

Eleventh Circuit. In its unpublished decision in

Oviedo Town Center II, L.L.L.P. v. City of Oviedo,

759 F. App’x 828 (11th Cir. 2018) (per curiam), the

Eleventh Circuit read Inclusive Communities to adopt

a similarly stringent causation standard. There, an

affordable-housing complex challenged a municipal

policy that had the effect of increasing that complex’s

utility rates. Id. at 832. The Eleventh Circuit read

Inclusive Communities to establish “detailed causation

requirements as a means of cabining disparate-impact

liability.” Id. at 833-34. Among these were the

principle that a disparate-impact claim cannot “be

founded on nothing more than a showing that a policy

impacted more members of a protected class than nonmembers of protected classes.” Id. at 834. Finding

that the plaintiffs’ evidence “revealed only that more

racial minorities live in” the plaintiffs’ complexes

“than lived in the rest of ” the city, the Eleventh

Circuit held that that evidence did “not establish a

disparate impact, let alone any causal connection

between” the policy and “the disparate impact.” Id.

at 835.

This reading of Inclusive Communities likewise

would require judgment in petitioners’ favor, because

19

respondents’ claim is “founded on nothing more than”

a preexisting racial disparity that the Policy did not

cause. Id. at 834.

Fifth Circuit. The following year, in Inclusive

Communities Project, Inc. v. Lincoln Property Co., 920

F.3d 890 (5th Cir. 2019), the Fifth Circuit solidified

the Eleventh Circuit’s reading of this Court’s Inclusive

Communities standard in a precedential decision. In

Lincoln Property, an FHA plaintiff challenged certain

apartment complexes’ policy to turn away publichousing vouchers, pointing to statistics showing that

the population that held vouchers and lived in the

Dallas metro area was disproportionately black. See

id. at 897-98. Affirming dismissal, the Fifth Circuit

held that the plaintiff had failed “to allege facts sufficient to provide the robust causation necessary for an

actionable disparate impact claim.” Id. at 906.

Specifically, it held that the alleged demographic

statistics did not “support[ ] an inference that the

implementation of [the] blanket ‘no vouchers’ policy,

or any change therein, caused black persons to be the

dominant group of voucher holders in the Dallas

metro area.” Id. at 907. It similarly observed that

the plaintiff “pleads no facts showing Dallas’s racial

composition before the [complexes] implemented their

‘no vouchers’ policy or how that composition has

changed, if at all, since the policy was implemented.”

Id. Thus, the plaintiff had alleged “no facts supporting a reasonable inference that [the complexes] bear

any responsibility for the geographic distribution of

minorities throughout the Dallas area prior to the

implementation of the ‘no vouchers’ policy.” Id.

In arriving at its disparate-impact holding, the Fifth

Circuit explained the “varying views” among the

courts of appeals set forth above about Inclusive

20

Communities’ “robust causality requirement.” See id. at

901-05 (citing Reyes I, Ellis, and Oviedo Town Center).

The Fifth Circuit avoided openly deepening the circuit

split only by giving a “narrower construction” to Reyes

I, declining to read it “to support a finding of robust

causation any time that a defendant’s policy impacts

a protected class more than others.” Id. at 906.

Unpersuaded, Judge Davis dissented, pointing out

that Reyes I found the “robust causation” requirement

to be satisfied merely because “the challenged policy

‘was likely to cause Latino tenants at defendant’s

property to be disproportionately subject to eviction

compared to non-Latinos at defendant’s property.’ ”

Id. at 921-22 (Davis, J., concurring in part and dissenting in part) (quoting Reyes I, 903 F.3d at 429)

(cleaned up).

Two months after this Court declined to grant the

first petition in this case, the Fifth Circuit denied

a petition for en banc review in Lincoln Property by

a 9-7 vote. See 930 F.3d 660, 661 (5th Cir. 2019)

(Haynes, J., dissenting from denial of rehearing en

banc).7 The dissenting judges read Inclusive Communities’ “robust causality requirement” minimally, as

“refer[ing] to the existence of a causal connection

between the defendants’ policy and a statistical disparity. It did not” (they thought) “add anything more.”

Id. at 663 n.5. Those judges urged the challengers to

“seek review from the Supreme Court.” Id. at 667.

They petitioned for certiorari, but the Court denied

the petition. See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 140 S. Ct. 2506 (2020) (No. 19-497).

The Fifth Circuit remains committed to Lincoln

Property – reading it to hold that “ ‘robust causation’

7 Judge Costa voted to grant rehearing but did not join the

dissent from denial.

21

[requires that] either: ‘a change in the defendant’s

enforcement of a policy’ caused a disparate impact;

or a challenged policy ‘caused the relevant minority

group to be the dominant group’ of those affected by

the policy,” turning away arguments that it should be

overruled. Inclusive Cmtys. Project, Inc. v. Heartland

Cmty. Ass’n, Inc., 824 F. App’x 210, 214-17 (5th Cir.

2020) (per curiam) (cleaned up).8

Ninth Circuit. Surveying the foregoing circuit law

in Southwest Fair Housing Council, Inc. v. Maricopa

Domestic Water Improvement District, 17 F.4th 950

(9th Cir. 2021), the Ninth Circuit confirmed that

the split is entrenched, but avoided articulating any

clear standard itself. There, a municipal utility that

supplied water to “the public housing tenants of ” a

particular “residential complex” claimed immunity

from any obligation “to pay its public housing tenants’

delinquent water bills.” Id. at 955-56. The utility

imposed a heightened “refundable security deposit” on

“new public housing customers.” Id. at 956. Plaintiffs

challenged the policy, citing an alleged disparate

impact. See id. The district court granted summary

judgment on the ground that the plaintiffs had failed

to satisfy the “robust causality” standard.

Although the Ninth Circuit affirmed the judgment

for reasons discussed below, it rejected the district

court’s causation holding. It noted the “four different

views among” the circuits (pointing to all of those discussed above) but avoided picking one because of what

it held to be “[t]he clarity of th[e] causal relationship”

8 See also Louisiana Fair Hous. Action Ctr., Inc. v. Azalea Garden Props., L.L.C., 82 F.4th 345, 350 (5th Cir. 2023) (dismissing

appeal regarding a question certified under 28 U.S.C. § 1292(b)

regarding Lincoln Property’s reading of Inclusive Communities

on the ground that the plaintiff lacked Article III standing).

22

alleged. Id. at 966. That court explained that the

challenged policy had “explicitly bifurcated a population based on a non-protected characteristic: public

housing.” Id. And, it continued, this “bifurcation

generated a disproportionate effect that would not

have existed in its absence and ensured the adverse

effects of the policy applied only to the population

subset that was overrepresented (in comparison to

the overall District customer population) by certain

members of a protected group.” Id.

Southwest Fair Housing Council illustrates the

lower courts’ need for this Court’s guidance. The

Ninth Circuit nominally avoided deepening the circuit

split only by adding yet another undefined linguistic

layer to the mix – finding that an alleged “causal

relationship” had hurdled an unarticulated “clarity”

threshold, obviating the need to choose one of the

“four different views” that other courts already had

developed. Id. This profusion of lower-court tests –

now adorned with a super-test to avoid choosing

among the others – will continue until the Court

resolves the circuits’ disagreement about how to apply

Inclusive Communities’ causality standard.

II. THE FOURTH CIRCUIT’S CONSTRUCTION

OF AN FHA DEFENDANT’S REBUTTAL

BURDEN CONFLICTS WITH THE DECISIONS OF OTHER COURTS OF APPEALS

The Fourth Circuit’s reading of Inclusive Communities also narrows defendants’ “leeway to state and

explain the valid interest served by their policies,”

576 U.S. at 541, in a way that other circuits have not.

Ninth Circuit. In Southwest Fair Housing Council,

despite disagreeing with the district court’s causality

reasoning, the Ninth Circuit still affirmed summary

judgment, relying on the “business necessity” defense.

23

The court noted that the phrase “business necessity”

“is somewhat of a misnomer,” including because “the

standard is not ‘necessity’: the defendant need not

demonstrate that the challenged policy is ‘ “essential”

or “indispensable” ’ to its business – only that the

policy ‘serves, in a significant way,’ its legitimate

interests.” 17 F.4th at 967 (quoting Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)). The

court thus explained that “it is defendant’s burden at

[the summary-judgment] stage to show (1) a legitimate

business interest, and (2) that the practice or policy

serves in a significant way that legitimate interest.”

Id. at 968.

The Ninth Circuit went on to find that the challenged security deposit served the district’s legitimate

interest in fiscal solvency. The challengers protested

that the public-housing tenants “represent only a

small portion of the District’s full customer base.” Id.

But the court explained that the challengers were

“not entitled to assert” “that, in their estimation, the

District could have recouped most, though not all, of

its costs related to delinquencies with a lower deposit

amount and that the District should be content with

that.” Id. at 969. The court also rejected the similar

contention that “the delinquencies were de minimis,”

because “a policy need not be essential or indispensable to significantly serve a legitimate interest;

moreover, [the challengers] offer no meaningful limiting principle as to how minor a potential financial

loss must be before a business may not protect itself

against it.” Id. at 968-69; see also id. at 969-70

(“[P]laintiffs may not simply assert a business’s interest is illegitimate because the plaintiff does not believe

the financial losses at issue are worth preventing.

That is nothing more than subjective second-guessing

the sound exercise of a business’s discretion.”).

24

Second Circuit. The Fourth Circuit’s decision also

conflicts with Mhany Management, Inc. v. County

of Nassau, 819 F.3d 581 (2d Cir. 2016). That case

concerned a county-government zoning policy that

the plaintiffs alleged, and the district court found,

had a prohibited disparate impact. See id. at 618.

The district court proceeded to find, relying on circuit

precedent preceding the 2013 Rule and Inclusive Communities, that the government had failed to carry

its rebuttal burden because, although the challenged

policy “advanced certain legitimate, bona fide governmental interests,” the government “did not establish

the absence of a less discriminatory alternative.” Id.

at 617. The Second Circuit vacated that element

of the judgment, finding that Inclusive Communities

had “implicitly adopted” the contrary rule that it is

the plaintiff ’s burden to prove “a less discriminatory

alternative.” Id. at 618. It thus remanded “for consideration of whether Plaintiffs satisfied their burden of

proving an available alternative practice that has less

disparate impact and serves Defendants’ legitimate

nondiscriminatory interests.” Id. at 619.

Although it cited Southwest Fair Housing Council

in passing, see App. 10a, the Fourth Circuit’s decision

conflicts with both it and Mhany Management.

Respondents conceded, and the Fourth Circuit agreed,

that “criminal liability can certainly serve as the basis

for a business necessity defense.” App. 11a. The only

remaining issue for Waples under Southwest Fair

Housing Council or Mhany Management would have

been whether the Policy serves that concededly legitimate interest in a significant way. It does: it provides

Waples an unambiguous defense to any anti-harboring

prosecution. That is sufficient to shift the burden back

to respondents under Second and Ninth Circuit law,

but not under the Fourth Circuit’s decision here.

25

III. THE QUESTIONS PRESENTED ARE

IMPORTANT

A. The Fourth Circuit’s Erroneous Dilution Of

Inclusive Communities’ “Robust Causality

Requirement” Warrants Review

This Court should review and reverse the Fourth

Circuit’s errant causality standard. First, it conflicts

with both Inclusive Communities and the proximatecausation standard that the authors of the majority

and both dissenting opinions in Inclusive Communities endorsed in Bank of America Corp. v. City of

Miami, 581 U.S. 189 (2017). As Judge Keenan

explained in Reyes I, evidence doing no more than

pointing “to the coincidental location of certain

undocumented aliens” does not satisfy any “robust

causality requirement,” but does “expand the FHA

beyond its stated terms to protect undocumented

aliens as a class, based solely on an allegation of

disparate impact within that class.” 903 F.3d at 434

(Keenan, J., dissenting) (citing Keller, 719 F.3d at 949

(opinion of Loken, J.)). Further, there is no serious

dispute that “other, independent events” having

nothing to do with the Policy “caused [respondents’]

injuries.” City of Miami, 581 U.S. at 212-13 (Thomas,

J., concurring in part and dissenting in part); see also

Inclusive Cmtys., 576 U.S. at 543 (noting that causation

would be difficult, if not impossible, to show “multiple

factors . . . go into” a challenged decision).

Second, the Fourth Circuit’s reasoning threatens

this Court’s clear teaching that a proper disparateimpact analysis must account for confounding factors

for which the defendant bears no responsibility. For

example, in Espinoza v. Farah Manufacturing Co., 414

U.S. 86 (1973), the Court compared a policy’s impact

on U.S. citizens of Mexican ancestry to its impact on

26

U.S. citizens of other ancestries, rather than comparing all persons of Mexican ancestry to those of other

ancestries. Similarly, in Wards Cove, the Court compared a practice’s impact on qualified racial minority

candidates to its impact on qualified white candidates,

rather than comparing all minority candidates to

white candidates. See 490 U.S. at 650-51; see also

Bazemore v. Friday, 478 U.S. 385, 400 & n.10 (1986)

(Brennan, J., joined by all other Members of the Court,

concurring in part) (statistical evidence that does not

“account[ ] for the major factors” may be “so incomplete

as to be inadmissible as irrelevant” in discrimination

case); Mandala v. NTT Data, Inc., 975 F.3d 202,

211 (2d Cir. 2020) (“[R]elying on [general population

statistics, absent evidence that they accurately reflect

the pool of qualified job applicants for the position

in question,] to show a disparate impact is a bit like

relying on apples to study oranges.”).

But the Fourth Circuit failed to account for such

a confounding factor because it elided the distinction

between the Policy and immigration status as such.

The Policy requires residents to present proof of immigration status; that proof supplies Waples’ defense

to a harboring prosecution. The relevant prima facie

question thus is whether requiring proof of legal status

in the United States causes a prohibited disparate

impact that is distinguishable from “racial disparities

[Waples] did not create.” Inclusive Cmtys., 576 U.S.

at 542; see also Wards Cove, 490 U.S. at 651-52 (if

an imbalance arises “for reasons that are not [an

employer’s or a landlord’s] fault,” then the employer’s

or landlord’s policy “cannot be said to have had a

‘disparate impact’ ”). Evidence that (for example)

Latinos with lawful status have been disproportionately harmed by a requirement to produce proof of

27

that status might well support a prima facie case

(though one open to rebuttal, cf. Crawford v. Marion

Cnty. Election Bd., 553 U.S. 181 (2008)). But the FHA

is not plausibly read to brand Waples a civil-rights

violator based on racial disparities within the undocumented-alien population that federal immigration

policy (not Waples’ Policy) created.

Third, the Fourth Circuit’s decision undermines the

settled rule that citizenship status is not a protected

characteristic. In Espinoza, this Court rejected a

Mexican citizen’s Title VII challenge to an employer’s

citizenship test. 414 U.S. at 92. The Court acknowledged that such a test could be “a pretext to disguise

what is in fact national-origin discrimination.” Id. It

nonetheless emphasized evidence that the employer

had routinely hired “employees of Mexican origin,

provided the individual concerned has become an

American citizen.” Id. at 92-93. The Court concluded

that Espinoza “was denied employment, not because

of the country of her origin, but because she had not

yet achieved United States citizenship.” Id. at 93.

Indeed, the Court observed that “the Federal

Government itself, through Civil Service Commission

regulations, has engaged in what amounts to discrimination against aliens by denying them the right to

enter competitive examination for federal employment.”

Id. at 89. The Court declined to “conclude Congress

would at once continue the practice of requiring

citizenship as a condition of federal employment and,

at the same time, prevent private employers from

doing likewise.” Id. at 91. Nor is citizenship-based

discrimination the same as national-origin discrimination merely because foreign-born people must earn

citizenship, while native-born people become citizens

automatically: “it is not the employer who places the

28

burdens of naturalization on those born outside the

country, but Congress itself.” Id. at 93 n.6.

For similar reasons, the Court has refused to treat

“illegal aliens” as a “suspect class” for Fourteenth

Amendment purposes. The Court “reject[ed]” that

“claim” in Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982).

It explained that, “[u]nlike most of the classifications

that we have recognized as suspect, entry into this

class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is

itself a crime.” Id. Moreover, the Court explained, the

federal government’s “alienage classifications may be

intimately related to the conduct of foreign policy, to

the federal prerogative to control access to the United

States, and to the plenary federal power to determine

who has sufficiently manifested his allegiance to

become a citizen of the Nation.” Id.

The Fourth Circuit’s decision embraces arguments

Espinoza rejected and invites conflict Plyler avoided.

Respondents’ case turns on the racial composition of

the affected undocumented-alien population. But, again,

that composition is an incidental effect of federal

immigration policy. And, as Judge Loken pointed out

in Keller, see supra pp. 16-17 (discussing 719 F.3d at

948-49), that composition changes over time (and did

here)9 – making FHA liability turn on immigration

patterns and policy matters that have nothing to

do with the FHA’s purpose “to avoid ‘perpetuating

segregation.’ ” Reyes I, 903 F.3d at 434 (Keenan, J.,

dissenting) (quoting Inclusive Cmtys., 576 U.S. at 540).

9 Although undocumented aliens in the area immediately

surrounding the Park were disproportionately Latino in 2014,

they were disproportionately Asian only two years earlier in

2012. C.A. App. 662.

29

In short, the FHA cannot be read to grant persons

whose presence in the Nation violates immigration

law a legally actionable entitlement to rent a private

landlord’s property while they elude deportation.

Racial imbalances within the undocumented-alien

population arise “because of ” federal immigration

policy rather than “membership in a protected group.”

Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994

(1988) (plurality). Permitting undocumented aliens to

bootstrap spurious correlation into disparate-impact

causation would put immigration law and the FHA in

irreconcilable conflict.

B. The Fourth Circuit’s Erroneous Account

Of An FHA Defendant’s Rebuttal Burden

Warrants Review

The Court also should review and correct the

erroneously heavy burden the Fourth Circuit has

put on FHA defendants. The Fourth Circuit faulted

Waples for failing to show that it was likely to be

prosecuted for the conduct the Policy prohibited,

without more – treating that as an issue Waples must

address on rebuttal. App. 12a-13a. This is erroneous

for multiple reasons.

To start, an FHA defendant bears no burden to show

narrow tailoring (much less absolute identity between

the conduct a policy prevents and a criminal offense

it avoids). Under Inclusive Communities, “housing

authorities and private developers” enjoy greater

“leeway to state and explain the valid interest served by

their policies.” 576 U.S. at 541. As Mhany Management and Southwest Fair Housing Council recognize,

evidence that the challenged policy significantly

serves a legitimate end (which the Policy plainly does)

is sufficient to shift the burden back to the plaintiff

to propose a less-discriminatory and equally effective

alternative.

30

The Fourth Circuit’s contrary decision parallels the

arguments the Ninth Circuit soundly rejected in

Southwest Fair Housing Council. The nub of the

Fourth Circuit’s opinion is that Waples “could have”

mitigated “most, though not all, of ” its risk of a

harboring prosecution without the Policy because a

conviction would require proof of a culpable mental

state. Cf. 17 F.4th at 968-70. But the FHA does not

require Waples to forgo an unambiguous defense to

criminal liability based on prosecutors’ assurances

that Waples’ “risk” without that defense is “de minimis”; “[t]hat is nothing more than subjective secondguessing the sound exercise of a business’s discretion.”

Cf. id. at 969-70.

In addition to folding a plaintiff ’s reply burden into

a defendant’s rebuttal burden, the Fourth Circuit’s

decision defeats other settled limitations on disparateimpact liability. “At summary judgment, the burden

on the plaintiff at the third step is not only to present

potential alternatives, but to provide evidence that

equally effective and less discriminatory alternatives

exist.” Id. at 970-71 (citing Watson, 487 U.S. at 99798). This evidence must, moreover, “take into account

the costs and burdens of proposed alternatives.” Id. at

971. Yet the Fourth Circuit never addressed whether

the mens rea defense respondents propose would be as

effective as the ironclad defense the Policy provides,

or the costs and burdens that defense would entail.

That error likewise warrants review and correction.

* * *

Employers, government agencies, landlords, and

others make decisions every day that remain subject

to challenge years later based on a discriminatory

effect that they did not intend. Inclusive Communities

was right to recognize that this rule is tolerable only

subject to “safeguards” that ensure it does “solely”

31

what Griggs meant it to do – root out “ ‘artificial,

arbitrary, and unnecessary barriers’ ” – and does not

“displace valid governmental and private priorities.”

576 U.S. at 544 (quoting Griggs v. Duke Power Co., 401

U.S. 424, 431 (1971)).

Inclusive Communities’ safeguards have failed;

neither the courts nor the enforcing agency have

found a coherent and consistent reading of either one.

Tenants and landlords cannot abide this uncertainty

about their FHA rights and obligations in the housing

disparate-impact context. This Court alone can supply

the clarity they need.

C. This Case Is An Ideal Vehicle For Clarifying

Inclusive Communities

The Court should address both questions presented,

because they point to a common fundamental issue:

what an FHA plaintiff needs to prove to show that

a challenged policy makes a housing opportunity

unavailable “because of ” a protected characteristic

absent discriminatory intent. There is no reason

(and no way) to consider either question in isolation.

Cf. Comcast Corp. v. National Ass’n of Afr. Am.-Owned

Media, 589 U.S. 327, 340 (2020) (“Under McDonnell

Douglas’s terms, too, only the burden of production

ever shifts to the defendant, never the burden of

persuasion.”).

Further, since the prior petition, the confusion

on the first issue has deepened, the second issue has

been introduced, and both questions thoroughly have

been addressed below. This case thus is an ideal

vehicle for the Court to clarify Inclusive Communities’

“safeguards.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

32

Respectfully submitted,

MICHAEL S. DINGMAN

MCGUIREWOODS LLP

1750 Tysons Boulevard

Suite 1800

Tysons, VA 22102

(703) 712-5000

JONATHAN Y. ELLIS

MCGUIREWOODS LLP

888 16th Street, N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

June 21, 2024

DAVID C. FREDERICK

Counsel of Record

COLLIN R. WHITE

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

GRAYSON P. HANES

ODIN, FELDMAN & PITTLEMAN,

P.C.

1775 Wiehle Avenue

Suite 400

Reston, VA 20190

(703) 218-2195