Professional Documents
Culture Documents
21-2270 Appellants Opening BR
21-2270 Appellants Opening BR
21-2270
___________________________________________________________________________________________________________________
IN THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
___________________________________________________________________________________________________________________
The School of the Ozarks, Inc., doing business as College of the Ozarks,
Plaintiff-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; Jeanine M. Worden, in her official
capacity as Acting Assistant Secretary for Fair Housing & Equal
Opportunity of the U.S. Department of Housing and Urban
Development,
Defendants-Appellees.
_________________________________________________________________
Appeal from the U.S. District Court for the Western District of Missouri
Honorable Roseann A. Ketchmark
(6:21-cv-03089-RK)
_________________________________________________________________
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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
i
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CORPORATE DISCLOSURE STATEMENT
ii
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TABLE OF CONTENTS
Introduction ...............................................................................................1
Jurisdictional Statement...........................................................................3
Argument .................................................................................................21
iii
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I. The College’s challenge is justiciable. ............................................21
iv
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2. The Constitution’s clear-notice canon compels a
narrow reading. ............................................................ 46
Conclusion ...............................................................................................58
v
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TABLE OF AUTHORITIES
Cases
Bennett v. Spear,
520 U.S. 154 (1997) ........................................................................ 35
vi
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Board of Education of Hendrick Hudson Central School District,
Westchester County v. Rowley,
458 U.S. 176 (1982) ........................................................................ 47
Buckley v. Valeo,
424 U.S. 1 (1976) ............................................................................ 53
Carcieri v. Salazar,
555 U.S. 379 (2009) ........................................................................ 47
Collins v. Yellen,
141 S. Ct. 1761 (2021) .................................................................... 33
vii
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Dataphase Systems, Inc. v. C L Systems, Inc.,
640 F.2d 109 (8th Cir. 1981) .......................................................... 18
Dellmuth v. Muth,
491 U.S. 223 (1989) ........................................................................ 47
Duncan v. Walker,
533 U.S. 167 (2001) ........................................................................ 41
Elrod v. Burns,
427 U.S. 347 (1976) ........................................................................ 57
Gregory v. Ashcroft,
501 U.S. 452 (1991) ........................................................................ 47
viii
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Larson v. Domestic & Foreign Commerce Corporation,
337 U.S. 682 (1949) ........................................................................ 39
Mangual v. Rotger-Sabat,
317 F.3d 45 (1st Cir. 2003) ............................................................. 28
Meriwether v. Hartop,
992 F.3d 492 (6th Cir. 2021) ...................................................... 6, 52
ix
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National Park Hospitality Association v. Department of Interior,
538 U.S. 803 (2003) ........................................................................ 27
Ohio v. Yellen,
2021 WL 2712220 (S.D. Ohio July 1, 2021) ................................... 47
Rodgers v. Bryant,
942 F.3d 451 (8th Cir. 2019) ................................................ 6, 18, 30
x
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Syncor International Corporation v. Shalala,
127 F.3d 90 (1997) .................................................................... 37, 38
Tandon v. Newsom,
141 S. Ct. 1294 (2021) .................................................................... 57
Thomas v. Wright,
2014 WL 6983302 (N.D. Ala. Dec. 10, 2014) ................................. 44
xi
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United States v. University of Nebraska at Kearney,
940 F. Supp. 2d 974 (D. Neb. 2013) ................................................. 7
Vitolo v. Guzman,
2021 WL 2172181 (6th Cir. May 27, 2021) .................................... 58
Statutes
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Other Authorities
Regulations
xiii
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24 C.F.R. § 11.8 .........................................................................................4
Constitutional Provisions
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INTRODUCTION
1
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anything of officials or the public, and they leave officials free to consider
alternate legal interpretations, but the Directive requires full
enforcement of its view of the FHA and leaves agency officials and
enforcement programs no freedom to adopt a different interpretation.
The Directive thus is a final agency action subject to review.
The Directive also mandates full enforcement of its new view of the
FHA—enforcement that the Directive itself says never previously
occurred. Regulated entities thus face a credible threat of enforcement
2
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JURISDICTIONAL STATEMENT
and 1361 because the College raised claims against the federal
government under the Administrative Procedure Act, the First
Amendment, the Religious Freedom Restoration Act, and other
3
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STATEMENT OF THE ISSUES
1. Justiciability and Cause of Action. The Fair Housing Act and its
and its single-sex student housing based on biological sex, not gender
identity?
• Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019)
• Turtle Island Foods, SPC v. Thompson, 992 F.3d 694 (8th Cir. 2021)
• 281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011)
• U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016)
4
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an abuse of discretion. 5 U.S.C. § 706 (2)(A). Did the government violate
these requirements of reasoned decision-making when the government
Cir. 1982)
• Voyageurs Region Nat’l Park Ass’n v. Lujan, 966 F.2d 424 (8th Cir.
1992)
• Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891
(2020)
• Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367 (2020)
5
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4. First Amendment. The College of the Ozarks seeks to keep and
to speak about its religiously informed sexuality and dorm policies and
code of conduct, under which student housing is separated by biological
sex regardless of gender identity, and students agree to refrain from sex
outside of marriage between one man and one woman. Does the Directive
violate the First Amendment when it (a) censors colleges from saying that
its dorms are separated by biological sex or that dorm occupants must
abide by its code of conduct, (b) coerces colleges to adopt other views that
would need to be communicated, and (c) compels colleges to use pronouns
contrary to biological sex in housing contexts?
• Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019)
• Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)
• Rodgers v. Bryant, 942 F.3d 451 (8th Cir. 2019)
6
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STATEMENT OF THE CASE
I. The government reinterpreted the Fair Housing Act and
mandated “full enforcement.”
7
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the FHA. JA379.2
Yet on taking office, President Biden ordered the government to
8
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punishments, including prison time, if an incident involves the threat of
force, such as if security staff enforce a prohibited housing policy. 42
with the FHA, file complaints, and bring lawsuits—even if they lack a
personal interest in obtaining housing. JA28–29, 37. Further anyone can
file a complaint and trigger a government investigation, or bring a
9
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• A 2010 HUD press release that said that internal “guidance”
“treat[s]” sex-stereotyping claims as gender discrimination.5
10
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III. The Directive threatens the College of the Ozarks with
crippling penalties.
11
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saying that its student housing is or should be separated by biological
sex, and coercing the College to adopt contrary policies. JA42–44, 298–
300, 403–04.
Were the College to comply with the government’s new mandate,
the College would suffer immeasurable harm to its religious exercise, its
students, and dissuades them from attending the College. Id. The College
would also incur regulatory compliance costs of time, money, and speech
were it to comply, because it would have to change its policies,
damages, and criminal penalties against the College and its employees.
JA31–33, 38, 46. The College’s liability under the Directive grows
exponentially each day as the College continues to speak about and apply
its housing policies. JA23.
12
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IV. The College sought to stop the government from
reinterpreting the FHA and enforcing its Directive.
13
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request relied on its first five claims—each of which provides
straightforward, dispositive legal issues. JA258–304.
9See also Gov’t Opposition to Motion for Injunction Pending Appeal (8th
Cir. June 21, 2021) (Opp.).
14
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• The government said the College’s policies and speech could violate
the Directive because a transgender student could be “denied
directive?
15
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Secretary Fudge: Thank you for the question, Mr.
law.10
16
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and that enforcement programs were required to “fully enforce” its view
of the FHA. JA191-93, 326, 339, 341–42, 353, 447.
County, 140 S. Ct. 1731 (2020), addresses sexual orientation and gender
identity, the Directive was merely a policy statement that itself does not
bind the College. The government thus denied that its officials presented
17
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STANDARD OF REVIEW
novo. Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914 (8th Cir.
2015); United States ex rel. Ambrosecchia v. Paddock Labs., LLC, 855
F.3d 949, 954 (8th Cir. 2017). It assumes that the complaint’s allegations
are true and views the record in the light most favorable to the plaintiff.
Rodgers v. Bryant, 942 F.3d 451, 454 (8th Cir. 2019).
Four factors govern whether to grant a preliminary injunction:
“(1) the likelihood of the movant’s success on the merits; (2) the threat of
irreparable harm to the movant in the absence of relief; (3) the balance
between that harm and the harm that the relief would cause to other
litigants; and (4) the public interest.” Watkins Inc. v. Lewis, 346 F.3d 841,
844 (8th Cir. 2003) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 114 (8th Cir. 1981) (en banc)). The most important factor is the
appellant’s likelihood of success on the merits. Brady v. Nat’l Football
League, 640 F.3d 785, 789 (8th Cir. 2011).
This Court reviews preliminary injunction denials for an abuse of
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SUMMARY OF ARGUMENT
sex-separated dorms, and the students who live there—all without public
notice and comment, or any consideration of religious exemptions,
statutory authority, or free speech.
The College has standing and its challenge is ripe. It faces a credible
threat of enforcement because the Directive mandates “full enforcement,”
laments that full enforcement of its new legal standard has never yet
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concerns, the reliance interests of private colleges, and any alternatives.
Third, the government lacks statutory authority because the FHA does
enforcement of the statute and regulations. And the College has standing
to pursue its other claims, including for its religious exercise, that the
district court dismissed sua sponte.
This Court should reverse the district court and enjoin the
Directive.
20
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ARGUMENT
I. The College’s challenge is justiciable.
government penalties. U.S. Const. art. III, § 2. By its plain wording, the
Directive mandates full enforcement of a legal standard, and it binds
enforcers to eradicate the College’s policies. The Directive is thus a final
21
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they are quite clearly exposed to the imposition of strong sanctions.”
Abbott Lab’ys v. Gardner, 387 U.S. 136, 153–54 (1967).
22
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JA335, 356, 359–60, 460–64; Statement of the Case, Pt.V. HUD’s
Secretary even told Congress that the College’s policies were “in
those policies, and its underlying religious reasons, to students every day.
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 penalties; or (3) cease providing student housing. JA41–47.
Third, the government’s threatened sanctions are strong. The FHA
23
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enforcement grantees to its interpretation of the FHA, and it agreed that
failure of the public in general—and the College in particular—to comply
could bring potential liability and enforcement. JA7, 30–31, 35–40, 78–
80, 326, 339.
Accordingly, the College has standing to sue as the object of agency
action, just like when educational providers had standing to sue when
the government sent a “Dear Colleague” letter to impose a similar
standard on federally funded educational facilities. Texas v. United
States, 201 F. Supp. 3d 810, 819–23 (N.D. Tex. 2016). There, as here, an
agency announced new guidelines under which colleges must “alter their
policies concerning students’ access to single sex toilet, locker room, and
shower facilities, forcing them to redefine who may enter apart from
traditional biological considerations.” Id. These standards require new
forms of regulatory compliance, which “satisfies the injury in fact
requirement.” Id. The College faces regulatory compliance injuries from
the government, including a mandate to abandon its religious beliefs,
allow men in female private spaces, and incur costs of time, money, and
24
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agency action, it “can show a cognizable injury if it has been deprived of
‘a procedural right to protect [its] concrete interests.’” Texas v. EEOC,
government itself gave examples below about how the College’s policies
and speech likely run afoul of the Directive. Supra Pt.I.
Indeed, the College faces far more than a “credible threat of
enforcement.” Eight times the Directive demands “full” enforcement of
its standard from all enforcement programs inside and outside HUD to
“eradicat[e]” newly prohibited behavior. JA78–80. Zero times does it
25
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leave room for covered entities not to comply. By definition, a mandate to
fully enforce a new legal standard with which regulated entities must
entities.
The College’s student policies are intertwined with the College’s
speech and educational mission, and so, under this standard, all “are
affected with a constitutional interest . . . regardless of the precise legal
theory.” Telescope Media, 936 F.3d at 750.
This case also presents ripe, purely legal questions. The
government has admitted what it now finds to violate the FHA under the
Directive, and the verified complaint provides detailed facts—including
copies of the College’s policies and descriptions of its ongoing speech, JA8,
17–21, 25–27, 29–30, 41–44, 59–62, 68, 133. Further factual development
is unnecessary and would not “significantly advance [the court’s] ability
to deal with the legal issues presented.” Nat’l Park Hospitality Ass’n v.
26
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Dep’t of Interior, 538 U.S. 803, 812 (2003) (citation omitted); Abbott
Lab’ys, 387 U.S. at 149–54.
where such proceedings carry the risk of serious criminal and civil
penalties.” U.S. Army Corps of Engr’s v. Hawkes Co., 136 S. Ct. 1807,
1815 (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 1815. 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).
27
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them. JA498–90. Instead, the district court applied a “rigorous” standard
under which no standing or ripeness exists until the government first
F.3d 694, 699–700 (8th Cir. 2021). Showing a credible enforcement threat
is an “extremely low” bar. Mangual v. Rotger-Sabat, 317 F.3d 45, 57 (1st
Cir. 2003).
The district court posited that any threat was speculative before
complaint proceedings because the Directive did not detail “how HUD
will determine FHA liability based on Bostock in any specific factual
28
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and palpable injury” to warrant pre-enforcement review. Sabre, Inc. v.
Dep’t of Transp., 429 F.3d 1113, 1118 (D.C. Cir. 2005).
faced a credible threat of enforcement and it had “no doubt” that this
threatened “injury would be traceable to” the state law and “would be
redressed by a judicial decision enjoining Minnesota from enforcing the
law against them.” Id. at 749.
So too here. The government cannot mandate full enforcement of a
legal standard, explain that the College’s policies are unlawful, and then
29
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Inc. v. Walsh, 714 F.3d 682, 691–92 (2d Cir. 2013), especially not the
College’s overbreadth challenge that does not depend on particular facts.
claiming that HUD has yet to bring an FHA charge against a college with
a religious exemption from Title IX. JA317–18, 321–22, 326, 331–32, 335.
This argument is misdirected.
are not enough, Rodgers, 942 F.3d at 455, such as “when a course of action
is within the plain text” of a mandate, Alexis Bailly Vineyard, Inc. v.
Harrington, 931 F.3d 774, 778 (8th Cir. 2019).
Third, far from disavowing enforcement against the College, the
government listed a panoply of ways that it thinks the College’s
religiously informed policies on sex, gender identity, and visitors are
30
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unlawful. JA356–57, 462–64. And the government has raised no missing
facts about the College’s policies—the government for instance does not
Instead, the government sought to muddy the waters with legal, not
factual, issues by hinting that somehow Title IX’s religious exemption
might (or might not) be relevant to how it will enforce the Directive. But
the government never said that Title IX’s exemption actually protects the
College (or any school) from the FHA, a separate statute. Indeed, because
the Directive skipped notice and comment, HUD admits that it did not
even consider the possibility. Opp.5, 11–12, 16, 20–21. The government
refuses to say that it will not bring an FHA action against a religious
college with a Title IX exemption, and the Directive says nothing about
religious exemptions when it repeatedly orders “full enforcement.”
31
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This was legal error. Bostock expressly limited its holding to Title
VII. Bostock said it was not interpreting any “other laws” like the FHA
and that its holding did not encompass intimate spaces. 140 S. Ct. at
1753. Interpreting the FHA to encompass sexual orientation and gender
identity is, at minimum, an extension of Bostock beyond its self-imposed
agency action that was required to undergo notice and comment under
the FHA, the APA, and HUD rules.
An agency cannot avoid judicial review by claiming that its new
legal standard was obvious in the statute all along. When an agency uses
informal guidance to change its position, its reference to statutory
authority does not make the action any less final. Texas, 201 F. Supp. 3d
at 827–31 (holding the government’s informal Title IX Dear Colleague
letter to be final agency action subject to judicial review). After all, the
whole point of APA review is to see whether an agency improperly read
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comment”—“as well as close scrutiny to insure that it was consistent with
the agency’s statutory mandate.” Am. Hosp. Ass’n v. Bowen, 834 F.2d
523 U.S. 83, 101 (1998), rather than assume that the College would
prevail, Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir.
2016).
The right inquiry is whether the alleged injury can be traced to the
officials’ “allegedly unlawful conduct,” “not to the provision of law that is
challenged.” Collins v. Yellen, 141 S. Ct. 1761, 1779 (2021). No case holds
that a final agency action cannot be challenged if the agency claims that
a statute required the action. Plus, “[t]ypically,” an injury is “‘fairly
traceable’ where “the named defendants ... possess the authority to
enforce the complained-of provision.’” Alexis Bailly Vineyard, 931 F.3d at
779 (citations omitted). Under this inquiry, the College’s asserted injuries
from the threat of government enforcement is easily traceable to the
33
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government enforcement officials, so enjoining government enforcement
would redress this threat. Telescope Media Grp., 936 F.3d at 749.
College’s request for injunctive relief. The College challenges the agency’s
action to interpret and enforce the FHA per the Directive, which an
injunction would halt, and which makes plain both injury and
redressability. JA70–73.
The district court also said that the College’s injury is not
redressable because private parties could seek to enforce the same
Grievances & Discipline of Ohio Supreme Ct., 769 F.3d 447, 452 (6th Cir.
2014). The availability of a private cause of action thus “cuts decisively”
in favor of justiciability. Chelsey Nelson Photography LLC v.
Louisville/Jefferson Cnty. Metro Gov’t, 479 F. Supp. 3d 543, 551 (W.D.
Ky. 2020). A favorable judgment would relieve the College of a real
government enforcement threat, which is enough—a judgment need not
34
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negate every injury from every non-governmental source to be proper.
Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129, 131 (8th Cir.
The College has a cause of action under the APA, which provides a
“strong presumption favoring judicial review of administrative action.”
Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021) (citation
omitted). 5 U.S.C. § 702, 705–06. Agency action is final and reviewable
if: (1) the agency’s action is the “‘consummation’ of the agency’s
decisionmaking process”; and (2) “the action [is] one by which ‘rights or
obligations have been determined,’ or from which ‘legal consequences will
flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).
Under the APA’s pragmatic approach, an action is final if it
“committed” the agency to a future route. Am. Farm Bureau Fed’n, 836
F.3d at 969. An agency action that “has the effect of committing the
agency itself to a view of the law that, in turn, forces the plaintiff either
35
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to alter its conduct, or expose itself to potential liability” is thus
reviewable. EEOC, 933 F.3d at 446.
The Directive meets these standard for final agency action. First,
the Directive consummates the decision-making process: it shuns
tentative, interlocutory, or advisory language for definitive orders. It
programs, and regulated entities. Any agency action that “bind[s] it and
its staff to a legal position” will “produce legal consequences or determine
rights and obligations.” EEOC, 933 F.3d at 441. At its issuance, HUD
called the Directive a “directive.” JA191–93. A directive directs that
action be taken—HUD is committed, as the government explained in its
press releases. JA38–39, 191–92.
36
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§ 3604(c); 24 C.F.R. § 100.50(b)(4)–(5). The Directive uses the word
“enforce” ten times and requires “full” enforcement eight times. JA78–80.
instrument. An agency action is final and binding when the agency “‘acts
as if a document issued at headquarters is controlling in the field,’” “‘it
treats the document in the same manner as it treats a legislative rule,’”
37
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Dakota v. Ubbelohde, 330 F.3d 1014, 1028 (8th Cir. 2003). A policy
statement leaves agency officials “the discretion and the authority to
change its position . . . in any specific case” and “does not seek to impose
or elaborate or interpret a legal norm.” Syncor Int’l, 127 F.3d at 94. Only
when an agency “will thoroughly consider not only the policy’s
applicability to the facts of a given case but also the underlying validity
of the policy itself,” is it a policy statement. Pac. Gas & Elec. Co. v. Fed.
Power Comm’n, 506 F.2d 33, 39 (D.C. Cir. 1974). Making agency officials
enforce a new standard is not a policy statement. Abbott Lab’ys, 387 U.S.
at 151–52.
Under this precedent, the Directive is final agency action, not a non-
binding policy statement. The government agrees that it bound itself and
its grantees to a legal interpretation, and it agrees that the government
left itself and its enforcement grantees no “discretion to depart from the
standards in specific applications,” U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232,
1234 (D.C. Cir. 1994). JA191-93, 326, 339, 341–42, 353, 447; Opp.8, 18.
The government’s practical object was, moreover, to lead private housing
38
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Below, the government denied that the Directive binds the College.
Not so. The Directive has “mandatory” language, and “private parties
have ‘reasonably [been] led to believe that failure to conform will bring
adverse consequences.’” Iowa League of Cities, 711 F.3d at 864. A
mandate that enforces a legal standard necessarily affects regulated
the Directive commits the agency. Am. Farm Bureau Fed’n, 836 F.3d at
969.
Still, the district court reasoned that the Directive had to be a non-
binding policy statement because, under the district court’s view of the
merits, any effect on the College would come by force of law from the FHA
after Bostock, not from the Directive. JA488–90. This is incorrect for the
reasons discussed above in Part I.C., especially because the APA exists
to review just this type of claim of newfound statutory authority.
Distinct from the APA, courts of equity have the power to set aside
ultra vires and unconstitutional federal actions. Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682, 689–90, 693 (1949). The
“Supreme Court has long recognized that injunctive relief” apart from the
APA can “be available to test the legality of administrative action.”
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Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Jud. Review
§ 8304 (2d ed.). And the government in past cases has conceded that there
The College sought review under Larson. JA10, 284, 385–86. It was
improper for the district court to fail to address this claim based on its
view that the Directive is a non-binding policy statement under the APA.
This avenue for relief does not depend on meeting the APA’s technical
requirements. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 189–90
(D.C. Cir. 2006).
This Court should reverse the district court’s denial of the College’s
motion for preliminary injunction because the government’s new
interpretation and enforcement of the FHA and HUD regulations is
unlawful on at least five grounds.
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Housing Act requires notice and comment for “all rules”—no exceptions.
42 U.S.C. § 3614a. Third, the APA independently subjects substantive or
legislative rules to notice and comment and delays their effective date 30
days. 5 U.S.C. § 553(b)–(d).
The government has never disputed that then-existing HUD
that is what the law says. The government contends that the FHA
silently incorporates the APA’s notice-and-comment exceptions. Opp.19.
But courts must give effect to a law’s every word and clause. Duncan v.
Walker, 533 U.S. 167, 174 (2001). Given the “salutory purposes” of notice
and comment, courts recognize exceptions “‘only reluctantly.’” Nat’l Ass’n
of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982).
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1987). 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). For the reasons
discussed above in Parts I.C and II.A showing the Directive is binding,
limits the discretion of agency officials, and extends reasoning that
Bostock did not apply to the FHA, the Directive is exactly what President
Biden called it: a “rule change.” JA38–39.
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rights, including the Religious Freedom Restoration Act (RFRA).” Opp.9,
13. Nor did the government consider any “particular settings such as
Considering these policy concerns “was the agency’s job, but the
agency failed to do it.” Regents, 140 S. Ct. at 1914. Instead, it rested on
its view that prior policy was unlawful, which violates the APA under
Regents. Id. at 1909–13. The APA provides no regulate-first-ask-
questions-later exception and post hoc rationalizations cannot justify the
Directive. Id. at 1912–15.
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C. The government lacks statutory authority and
violated the clear-notice canon.
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The FHA says nothing about undoing what Title IX allowed for
student housing. In the FHA itself, Congress funds private college single-
Yet the Directive does just that: it interprets “sex” in the FHA (as
the government now does elsewhere in Title IX) to create obligations
contrary to Title IX’s Section 1686. Prohibiting gender identity
14 See Tables 5 & 5a, pg. 228, Evolution of Role of the Federal Government
in Housing and Community Development, Subcomm. on Housing and
Community Development of the Comm. on Banking, Currency and
Housing, 94th Cong. (Oct. 1975) (filed with Pub. L. 93-383 on Aug. 22,
1974), available on Westlaw under U.S. Government Accountability
Office (GAO) Legislative History, Pub. L. 93-383—part 1.
15 45 C.F.R. § 86.32 (“A recipient may provide separate housing on the
basis of sex.”); HUD Occupancy Handbook, Chapter 3: Eligibility for
Assistance and Occupancy, sec. 3-22.B.1 (citing 45 C.F.R. §§ 86.32 and
86.33), https://www.hud.gov/sites/documents/DOC_35645.PDF (last
visited July 8, 2021).
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and comparable. 24 C.F.R. § 3.405 (emphasis added). It has said this
since at least 1975.16 The FHA did not overturn the longstanding practice
1, 17, 24 (1981). Congress must deliberate and resolve each specific term.
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551 (1985).
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This canon imposes “a particularly strict standard.” Port Auth.
Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990). Unlike the
ordinary clarity required for regular statutes, Congress must make “its
intention” “‘unmistakably clear in the language of the statute,’” Gregory
v. Ashcroft, 501 U.S. 452, 460, 464 (1991) (citation omitted), measured at
the time of enactment, Carcieri v. Salazar, 555 U.S. 379, 388 (2009).
Congress may not use “expansive language,” Bond II, 572 U.S. at 857–
58, 860, to impose “a burden of unspecified proportions and weight, to be
548 U.S. 291, 296 (2006); Dellmuth v. Muth, 491 U.S. 223, 232 (1989).
Nor may the federal government “surpris[e] participating States with
post acceptance or ‘retroactive’ conditions.” Pennhurst, 451 U.S. at 25.
These structural principles protect citizens, not just states. Bond v.
United States (Bond I), 564 U.S. 211, 220, 222 (2011). This “division of
power is not about preserving state power, so much as it is about
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The Constitution imposes this canon on the FHA because the FHA
is a spending statute that displaces traditional state real estate, land use,
Because Congress did not “in fact face[], and intend[] to bring into
issue” this particular disruption of state and private authority, United
States v. Bass, 404 U.S. 336, 349 (1971), the Directive’s interpretation
violates the clear-notice canon.
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D. The government censors and compels speech based on
content and viewpoint.
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• telling students in person or in applications about its code;
• posting signs that showers, restrooms, and dorm rooms in
but the College cannot tell students the College has, or prefers to have,
single-sex housing based on biological sex.
The Directive also compels the College’s speech. The College must
adopt the government’s policies, and it must answer, on inquiry, that it
provides housing without regard to sexual orientation or gender identity.
The College must also use a student’s preferred pronouns based on
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imposes these speech burdens. Opp.14, 16, 21. But this argument ignores
that the Directive requires enforcement of the FHA and its regulations
using the Directive’s new standard, and it ignores that the College
challenges both the Directive and any interpretation or enforcement of
the FHA and HUD regulations on a sexual orientation and gender-
strict scrutiny or that is not overbroad. Instead, the government said that
the First Amendment does not protect the College’s speech at all: in its
view, the College’s policies and speech are per se “not protected speech”
because they further “discrimination.” JA356–57; Opp.14, 16, 21. JA356–
57; Opp.14, 16, 21.
But under this view “wide swaths of protected speech would be
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the College’s core religious beliefs and protected exercise. Meriwether v.
Hartop, 992 F.3d 492, 509 (6th Cir. 2021); infra Pt. III.F.
Bisexual Grp. of Bos., 515 U.S. 557, 578–79 (1995), and so any non-
discrimination “interest is not sufficiently overriding as to justify
compelling” speech. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d
890, 914–15 (Ariz. 2019) Far from being “always” a “compelling interest,”
this interest is “comparatively weak” in the context of education and
pronouns. Meriwether, 992 F.3d at 510. And any government interest
could be achieved in more narrowly tailored ways. Students can attend
other institutions eager to comply with the Directive.
The Directive is also overbroad because it sweeps in speech of many
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E. The government violated the Appointments Clause.
Art. II, § 2, cl. 2. Under this clause, the Senate’s advice and consent is
required for “Officers of the United States” (principal officers), except
“Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.” U.S. Const. art. II, § 2, cl. 2.
This clause requires a Senate-confirmed official to make or
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2016), the issuance of binding directives on major questions cannot occur
through inferior officers. And even less can they be issued through mere
Fair Housing & Equal Opportunity—is a role that can be filled only by a
principal officer. An Appointments Clause inquiry looks not only at the
individual authority being challenged but also “the extent of power an
individual wields in carrying out his assigned functions” overall. Lucia v.
S.E.C., 138 S. Ct. 2044, 2051, (2018). Her position exercises significant
duties, such as HUD’s power over the FHA, Title VI of the Civil Rights
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Act of 1964, Section 504 of the Rehabilitation Act of 1973, Section 109 of
the Housing and Community Development Act of 1974, the Age
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must be Senate-confirmed, taking on principal duties cannot make a non-
officer into an officer.
The College also has standing to bring its other claims and is likely
to succeed on them. Along with the five arguments raised in its
preliminary injunction motion, the College brought claims under the
Religious Freedom Restoration Act (RFRA), the First Amendment’s Free
Exercise Clause, the Regulatory Flexibility Act, and the Constitution’s
structural principles of federalism. JA56–70.
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omitted). And of course that compelling interest must also be narrowly
tailored. Id.
Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam). Under the
First Amendment and RFRA, that should be the end of the Directive.
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By contrast, the government lacks any interest in enforcing
unlawful directives, Vitolo v. Guzman, No. 21-5517, 2021 WL 2172181,
at *4, *8 (6th Cir. May 27, 2021), and the public interest supports
preserving the status quo for colleges, Shawnee Tribe v. Mnuchin, 984
F.3d 94, 102 (D.C. Cir. 2021).
Under Section 706 of the APA, the court must set aside an unlawful
agency action. When “regulations are unlawful, the ordinary result is
that the rules are vacated—not that their application to the individual
CONCLUSION
This Court should reverse the district court’s dismissal of the case
and denial of a preliminary injunction, reinstate the College’s lawsuit,
and instruct the lower court to enter a preliminary injunction protecting
constitutional freedoms.
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Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
font.
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CERTIFICATE OF SERVICE
I hereby certify that on July 29, 2021, the above appellant’s brief
was filed electronically with the Clerk of the Court for the United States
Court of Appeals for the Eighth Circuit through the Court’s CM/ECF
system. I certify that all participants in the case who are registered
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