United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-2270

___________________________

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

lllllllllllllllllllllPlaintiff - Appellant,

v.

Joseph R. Biden, Jr., in his official capacity as President of the United States; U.S.

Department of Housing and Urban Development; Marcia L. Fudge, in her official

capacity as Secretary of the U.S. Department of Housing and Urban Development;

Demetria L. McCain, in her official capacity as Principal Deputy Assistant

Secretary for Fair Housing & Equal Opportunity of the U.S. Department of

Housing and Urban Development,

1

lllllllllllllllllllllDefendants - Appellees.

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

Institute for Faith and Family; America First Legal Foundation; Mountain States

Legal Foundation; State of Missouri; State of Alabama; State of Arkansas; State of

Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Montana;

State of Nebraska; State of South Carolina; State of Tennessee; State of Texas;

State of Utah; State of West Virginia; Hannibal-LaGrange University; Missouri

1Ms. McCain is substituted for Jeanine M. Worden under Federal Rule of

Appellate Procedure 43(c). The complaint sued Worden in her official capacity as

Acting Assistant Secretary, but that office is now vacant, and under the Department’s

Order of Succession, the Principal Deputy Assistant Secretary exercises the powers

and performs the duties of the Assistant Secretary.
Baptist University; Southwest Baptist University; Christian Life Commission of

the Missouri Baptist Convention,

lllllllllllllllllllllAmici on Behalf of Appellant(s).

 ____________

Appeal from United States District Court

for the Western District of Missouri - Springfield

 ____________

 Submitted: November 17, 2021

Filed: July 27, 2022

____________

Before COLLOTON, GRASZ, and KOBES, Circuit Judges. 

____________

COLLOTON, Circuit Judge.

College of the Ozarks, a private Christian college in Missouri, brought this

action to challenge the lawfulness of a memorandum issued by an acting assistant

secretary of the United States Department of Housing and Urban Development. The

College moved for a temporary restraining order and preliminary injunction. The

district court2ruled that the College lacked standing to establish a case or controversy

and dismissed the action for lack of jurisdiction. The College appeals, and we affirm.

I.

On June 15, 2020, the Supreme Court decided Bostock v. Clayton County, 140

S. Ct. 1731 (2020), concerning Title VII of the Civil Rights Act of 1964. Bostock

2The Honorable Roseann A. Ketchmark, United States District Judge for the

Western District of Missouri.

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held that the statute’s prohibition on employment discrimination “because of sex”

encompasses discrimination on the basis of sexual orientation and gender identity. 

Id. at 1741.

The Fair Housing Act, at issue in this appeal, makes it unlawful for certain

persons and entities to “make unavailable or deny” a dwelling “because of . . . sex.” 

42 U.S.C. § 3604(a). In January 2021, President Biden issued Executive Order No.

13,988, which states that “[u]nder Bostock’s reasoning, laws that prohibit sex

discrimination—including . . . the Fair Housing Act . . . prohibit discrimination on the

basis of gender identity or sexual orientation.”

The following month, the Acting Assistant Secretary for Fair Housing and

Equal Opportunity in the Department of Housing and Urban Development issued a

memorandum to implement the Executive Order. The Memorandum is addressed to

the Department’s Office of Fair Housing and Equal Opportunity, as well as state and

local agencies and private organizations that administer and receive funds through

certain programs of the Department. The document explains that the Office of

General Counsel for the Department “has concluded that the Fair Housing Act’s sex

discrimination provisions are comparable to those of Title VII and that they likewise

prohibit discrimination because of sexual orientation and gender identity.”

The Memorandum directs the Office of Fair Housing and Equal

Opportunity—the HUD office that enforces the Fair Housing Act—to “accept for

filing and investigate all complaints of sex discrimination, including discrimination

because of gender identity or sexual orientation.” The document’s stated purpose is

to direct the Office to “fully enforce the Fair Housing Act” because discrimination

based on sexual orientation and gender identity “is real and urgently requires

enforcement action.”

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The Memorandumexplained that over the previousten years, HUD interpreted

the Fair Housing Act to prohibit discrimination on the basis of gender identity and

sexual orientation when the discrimination was motivated by perceived

nonconformity with gender stereotypes.

3 Yet the Memorandum concluded that this

“limited enforcement” was “insufficient to satisfy the Act’s purpose” and was

“inconsistent” with the broader rationale of Bostock. Hence, the Department’s

leadership issued this new directive “to fully enforce” the Act’s prohibitions against

discrimination based on sex, including sexual orientation and gender identity. The

Memorandum addresses discrimination in housing across the entire economy, and

does not specifically address the subject of housing for students at colleges and

universities.

College of the Ozarksis a Christian undergraduate institution in Missouri. The

College admits students of any religion, but all students must agree to follow the

College’s religiously-inspired code of conduct. As stated in that code, the College

teachesthat biologicalsex is a person’s “God-given, objective gender, whether or not

it differs from their internal sense of ‘gender identity.’” The code also states that

“sexual relations are for the purpose of the procreation of human life and the uniting

and strengthening of the marital bond in self-giving love, purposes that are to be

achieved solely through heterosexual relationships in marriage.” In accordance with

these beliefs, the College maintains single-sex residence halls and does not allow

members of one sex to visit the “living areas” of members of the opposite sex. The

College therefore prohibits biological males who “identify” as females from living

3

See Equal Access in Accordance With an Individual’s Gender Identity in

Community Planning and Developmental Programs, 81 Fed. Reg. 64,763, 64,770

(Sept. 21, 2016); Quid Pro Quo and Hostile Environment Harassment and Liability

for Discriminatory Housing Practices Under the Fair Housing Act, 81 Fed. Reg.

63,054, 63,058-59 (Sept. 14, 2016); Equal Access to Housing in HUD Programs

Regardless of Sexual Orientation or Gender Identity, 77 Fed. Reg. 5661, 5666 (Feb.

3, 2012).

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in female dormitories, and vice-versa. The College regularly communicates its

housing policies to current and prospective students through a student handbook, an

online virtual tour, the school website, and in-person recruitment events.

Allegedly fearing that its housing policies are now unlawful under the

Memorandum’s interpretation of the Fair Housing Act, the College sued President

Biden, the Department of HUD, the Secretary of HUD, and the Acting Assistant

Secretary, seeking pre-enforcement review of the Memorandum. The complaint

alleged that the Memorandum, among other things, violates the Administrative

Procedure Act, the First Amendment’s Free Speech and Free Exercise Clauses, the

Appointments Clause of Article II of the Constitution, and the Religious Freedom

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

The complaint sought injunctive and declaratory relief. Specifically, it asked

the district court to “set aside” the Memorandum and issue an injunction against

enforcement of the Memorandum by the defendant officials. The complaint sought,

among other forms of relief, a declaration that the Fair Housing Act and the

implementing regulations do not prohibit discrimination based on sexual orientation

or gender identity. The College moved for a temporary restraining order and

preliminary injunction.

The district court concluded that it lacked jurisdiction because the College

failed to establish Article III standing. The court determined that any alleged injury

is not concrete because the College did not show that the Memorandum imposed

restrictions on private housing providers such as the College. The court further

reasoned that any injury was not caused by the Memorandum because the internal

directive does not modify the College’s rights or obligations under the Fair Housing

Act. The court also concluded that any judicial remedy would not redress any alleged

injury because any liability that the College incurs for violating the Fair Housing Act

“would flow directly from the Act itself, as well as applicable case law including

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Bostock, and not from the Memorandum.” The College appeals, and we review the

district court’s decision de novo.

II.

“No principle is more fundamental to the judiciary’s proper role in our system

of government than the constitutional limitation of federal-court jurisdiction to actual

cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)

(internal quotation and alteration omitted). To establish Article III standing, a party

invoking federal jurisdiction mustshow (1) that the plaintiff suffered an injury in fact,

(2) a causal relationship between the injury and the challenged conduct, and (3) that

a favorable decision will likely redressthe injury. Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-61 (1992). An injury in fact is the invasion of a legally protected interest

that is “actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal

quotation omitted). “Allegations of possible future injury do not satisfy the

requirements of Article III. A threatened injury must be certainly impending to

constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (internal

quotation omitted).

A plaintiff who invokes federal jurisdiction must support each element “in the

same way as any other matter” on which it bearsthe burden of proof. Lujan, 504 U.S.

at 561. At the pleading stage, therefore, a plaintiff must “allege sufficient facts to

support a reasonable inference that [it] can satisfy the elements of standing.” Animal

Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir. 2021).

The closely related doctrine of ripeness originates from the same Article III

limitation. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014). The

ripeness requirement serves “to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference

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until an administrative decision has been formalized and its effects felt in a concrete

way by the challenging parties.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 148-49

(1967). To demonstrate that an alleged dispute is ripe for review, the complainant

must show both “the fitness of the issues for judicial decision and the hardship to the

parties of withholding court consideration.” Id. at 149. A case is fit for judicial

decision when it would not benefit from further factual development and poses a

purely legal question not contingent on future possibilities. Pub. Water Supply v. City

of Peculiar, 345 F.3d 570, 573 (8th Cir. 2003). In this case, standing and ripeness

essentially “boil down to the same question,” and we will address the issue in terms

of “standing.” See Susan B. Anthony List, 573 U.S. at 157 n.5; MedImmune, Inc. v.

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

A.

The College first argues that it has suffered an injury in fact because there is

an imminent threat under the Memorandum that the government will enforce the Fair

Housing Act against the College. This imminent threat of enforcement, says the

College, requires it to choose among three injuries: (1) change its housing policies

in violation of the College’sreligious beliefs, (2) refuse to change its housing policies

and face sanctions under the Fair Housing Act, or (3) cease providing student housing

altogether. The College cites the Memorandum’s call for “full enforcement” of the

Act to overcome the insufficiency of past “limited enforcement of the Fair Housing

Act’s sex discrimination prohibition.” The College contends that the Memorandum

necessarily directs the agency to bring an allegation of sex discrimination against the

College to “eliminate discriminatory housing practices.”

This theory of injury fails because it is based on a misunderstanding of the

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

penalties against, entities subject to the Fair Housing Act. Rather, the Memorandum

directs the Office of Fair Housing and Equal Opportunity to “accept for filing and

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investigate all complaints of sex discrimination, including discrimination because of

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

presupposes, require that HUD reach the specific enforcement decision that the

College’s current housing policies violate federal law. The Memorandum, for

example, says nothing of how the Religious Freedom Restoration Act or the Free

Exercise Clause may limit enforcement of the Fair Housing Act’s prohibition on sex

discrimination as applied to the College. Bostock itself, the decision on which the

Memorandum is based, refers to the Religious Freedom Restoration Act as a “super

statute, displacing the normal operation of other federal laws.” Bostock, 140 S. Ct.

at 1754.

TheCollege’s alleged injury also lacksimminence because it isspeculative that

HUD will file a charge of discrimination against the College in the first place. As

explained in the government’s brief, the agency has never filed such a charge against

a college for sex discrimination based on a housing policy that is specifically

exempted from the prohibition on sex discrimination in education under Title IX of

the Civil Rights Act. Title IX provides that its anti-discrimination provision “shall

not apply to an educational institution which is controlled by a religious

organization,” if applying the prohibition “would not be consistent with the religious

tenets of” the organization. 20 U.S.C. § 1681(a)(3). In 2018, the assistant secretary

for civil rightsin the U.S. Department of Education formally advised the College that

it is exempt from numerous regulatory provisions on housing and other matters,

insofar as they proscribed discrimination based on sexual orientation or gender

identity, to the extent that compliance would conflict with the College’s religious

tenets. Consistent with that exemption, even when HUD interpreted the Fair Housing

Act to prohibit discrimination on the basis of sexual orientation and gender identity

between 2012 and 2020, the Department brought no enforcement action against the

College. The College’s enjoyment of an exemption under Title IX, and its failure to

show that HUD has previously filed discrimination charges against it or similarly

-8-
situated colleges, substantially undermines its argument that enforcement isimminent

now. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411 (2013).

Similarly unpersuasive is the College’s assertion that it is the “object of the

action” in the Memorandum, and that there is thus “little question” that the

Memorandum causesinjury. See Lujan, 504 U.S. at 561-62. Relying on the ripeness

decision in Abbott Laboratories, the College argues that it is the object of an agency

action because the Memorandum (1) is directed at the College in particular, (2)

requires the College to make significant changes to its housing policies, and (3)

exposes the College to strong sanctions. See 387 U.S. at 154. But this assertion

overlooks that the Memorandum is an internal directive to HUD agencies, not a

regulation of private parties. The Memorandum does not direct the College to do

anything, and it does not expose the College to any legal penaltiesfor noncompliance

with the Memorandum. In Abbott Laboratories, by contrast, the plaintiff drug

manufacturers were the object of a final administrative rule that required them to

place a particular name on drug labels. The rule directly regulated the conduct of

drug manufacturers and was backed by criminal and civil sanctions if not followed. 

Id. at 152-54.

The College is more like the plaintiff in Cornish v. Blakey, 336 F.3d 749 (8th

Cir. 2003). There, a memorandumissued by the Department of Transportation (DOT)

directed doctors who conducted drug testing how to decide whether a specimen was

adulterated. Id. at 751. The Federal Aviation Administration (FAA) revoked the

plaintiff Cornish’s aircraft mechanic certificate when doctors determined that he

submitted an adulterated urine specimen. Before the mechanic exhausted his

administrative remedies, he brought a challenge to the DOT memorandum in federal

court. Id. at 752. This court held that the plaintiff “was not even arguably injured by

the 1998 DOT memorandum until the FAA relied upon it as a basis for revoking his

mechanic certificate,” and that “absent the revocation order, Cornish lacks the injury

in fact necessary for Article III standing.” Id. at 752-53. The College lacksinjury for

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analogous reasons. The HUD enforcement agencies have not relied on the

Memorandum to charge the College with sex discrimination under the Fair Housing

Act, and any alleged future injury caused by the Memorandum is conjectural and

hypothetical.

The dissent favors a different theory of injury—namely, that the College was

deprived of a right to notice and opportunity for comment before HUD issued the

internal directive. But even assuming that notice and comment was required, a

plaintiff cannot establish injury in fact “on the basis of a ‘procedural right’

unconnected to the plaintiff’s own concrete harm.” Lujan, 504 U.S. at 573 n.8. Like

the Memorandum itself, the absence of notice and opportunity to comment regarding

the Memorandum does not endanger a concrete interest of the College, because the

Memorandum does not require HUD to determine that the College’s housing policies

violate federal law. “[D]eprivation of a procedural right without some concrete

interest that is affected by the deprivation—a procedural right in vacuo—is

insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S.

488, 496 (2009). 

In sum, the College’s alleged injury is too speculative to establish Article III

standing. The College, in effect, asks usto assume that the following series of events

is imminent: a sex-discrimination complaint will be filed against the College based

on claimsinvolving sexual orientation or gender identity; following an investigation,

HUD will charge the College with sex discrimination, even though HUD has never

enforced the Fair Housing Act’s sex-discrimination prohibition against a college

whose housing policies have been exempted from the prohibition on sex

discrimination under Title IX; HUD will determine, pursuant to the Memorandum,

that the College is not entitled to an exemption under the Religious Freedom

Restoration Act or the Free Exercise Clause as discussed in Bostock; and the College

will therefore be subject to penalties. This is the kind of “highly attenuated chain of

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possibilities” that “does not satisfy the requirement that threatened injury must be

certainly impending.” Clapper, 568 U.S. at 410. 

B.

The College also advances a second theory of injury—namely, that the

Memorandum curtails its First Amendment right to freedom of speech. A plaintiff

claiming an abridgment of free speech is permitted to seek pre-enforcement review

“under circumstancesthat render the threatened enforcementsufficiently imminent.” 

Susan B. Anthony List, 573 U.S. at 159. To establish standing, a complaint must

allege that plaintiff has “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder.” Id. (internal quotation omitted). A

plaintiff can establish an injury in the First Amendment context in two ways: by

identifying protected speech in which it would like to engage but that is proscribed

by statute, or by self-censoring to avoid the credible threat of prosecution. 

Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794 (8th Cir. 2016). 

The Fair Housing Act makes it unlawful to “make, print, or publish” a

statement regarding the sale or renting of a dwelling that discriminates on the basis

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

Memorandum, the Fair Housing Act prohibits the College from communicating its

housing policies, because those policies require that biological males and females,

regardless of gender identity or sexual orientation, reside in separate dormitories. In

asserting a credible threat of enforcement, the College again citesthe Memorandum’s

call for “full enforcement” of the Fair Housing Act to bring about the “eradication of

housing discrimination for all.”

The College’s free-speech theory of standing fails essentially for the reasons

discussed above: The College has not shown that there exists a credible threat that

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the defendants will enforce the Fair Housing Act against the institution based on its

religiously-based housing policies. The Memorandum does not make the College’s

housing policies unlawful without regard to legal protections for religious liberty. 

HUD has never filed charges of housing discrimination against a college that is

exempt fromprohibitions on sex discrimination in housing under Title IX. And HUD

has never enforced the Fair Housing Act’ssex-discrimination prohibition against the

College, even though the agency interpreted the Fair Housing Act to prohibit

discrimination on the basis of sexual orientation and gender identity between 2012

and 2020. Thus, the College’s free-speech theory does not allege an injury in fact

sufficient to confer Article III standing.

Aside from the lack of a credible threat of enforcement, the College also has

not alleged that its speech has been chilled. The College alleges no self-censorship,

but rather avers that it “tells and intends to continue telling current and prospective

students” about its religiously-inspired housing policies. Although the complaint

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

support that legal conclusion, and we “are not bound to accept as true a legal

conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal quotation omitted). The College has not alleged, for

example, that it no longer separates males and females into dormitories based on

biological sex, or that it has repealed the portion of the student handbook that

communicatesits housing policies. The complaint thusfailsto allege either an actual

chilling of speech or a credible threat of enforcement that justifies self-censorship.

C.

Even if the College had suffered an injury in fact, it must also show that a

favorable judicial decision would likely redress its injury. Redressability requires us

to examine the “causal connection between the alleged injury and the judicial relief

requested.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). Therefore, even if we

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assume for the sake of analysisthat the College hassuffered the injuriesit alleges, the

College must show that the requested relief would eliminate the alleged threat of

imminent enforcement of the Fair Housing Act and prevent any chill of the College’s

speech.

An injunction against implementing the Memorandum, however, would not

stop the Department from investigating all complaints of sex discrimination against

a college, including complaints of discrimination because of gender identity or sexual

orientation. Even if HUD were enjoined from enforcing its internal directive, the

agencywould still be required by statute to investigate sex-discrimination complaints

filed against the College. The statute mandates that when a complaint is filed, HUD

“shall make an investigation of the alleged discriminatory housing practice.” 42

U.S.C. § 3610(a)(1)(B)(iv). With or without the Memorandum, the agency must

consider the meaning of the Fair Housing Act in light of Bostock and itsinterpretation

of similar statutory language. The College has thus failed to show that enjoining

officials from implementing the Memorandum would redress any injury allegedly

arising from the internal directive, because the agency retains the authority and

responsibility to carry out the same enforcement activity based on the statute alone.

* * *

For these reasons, the judgment of the district court is affirmed.

GRASZ, Circuit Judge, dissenting.

This case highlights the corrosive effect on the rule of law when important

changes in government policy are implemented outside the normal administrative

process. The normal method for rulemaking requires notice and comment, which in

turn “secure the values of government transparency and public participation.” Iowa

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League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013). An agency’s issuance

of a guidance document that fails to adhere to the proper administrative procedures

may achieve compliance with the government’s desired policy outcomes by in

terrorem means, but it skirts the rule of law and undermines our values. This is

especially true where regulated entities are placed under a sword of Damocles but are

denied access to the courts because the sword has not yet fallen. “An agency

operating in this way gains a large advantage”—it enables the agency to quickly

amend its rules without following the statutory procedures. Appalachian Power Co.

v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000). “The agency may also think there is

another advantage—immunizing its lawmaking from judicial review.” Id.

Here, the College fearsthe federal government will imminently enforce HUD’s

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

continues its current housing policy that assigns students to single-sex dorms

according to their biological sex. The court dismisses this fear as “speculative” and

contends there is no “credible threat of enforcement.” Ante at pp. 8, 11. It therefore

concludes we lack standing to review HUD’s Memorandum directing the Office of

Fair Housing and Equal Opportunity (“FHEO”) and associated entities to “fully

enforce” the federal government’s interpretation of the FHA. I disagree with the

court’s conclusions and respectfully dissent.

Viewing the pleadings liberally, the complaint alleges the College’s housing

policy violates the government’s interpretation of the FHA. Put simply, if the

government acts as the Memorandum facially requires, it is only a matter of time

before the government concludesthe College’s housing policy violatesthe FHA. The

law should not require the College to wait for this to come to fruition. See Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (“[W]e have permitted preenforcement review under circumstances that render the threatened enforcement

sufficiently imminent.”). Nor do I believe the College must rely on the government’s

in-court oralsuggestion that it would not enforce itsinterpretation of the FHA against

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religious institutions based on its historic practice of following Title IX’s religious

exemption—an exemption not even mentioned in the broad language of the

enforcement directive in the Memorandum. See Rodgers v. Bryant, 942 F.3d 451,

455 (8th Cir. 2019) (noting that the government’s “in-court assurances[that it will not

fully enforce the law] do not rule out the possibility that it will change its mind and

enforce the law more aggressively in the future”).

That said, my main objection to the court’s holding is more fundamental: the

holding overlooks an injury the College has already suffered—the deprivation of its

right to notice and comment. The FHA requires notice and comment for “all rules”

under its purview—including interpretative rules.

4

42 U.S.C. § 3614a. 

“[I]nterpretative rules simply state what the administrative agency thinks the statute

means, and only remind affected parties of existing duties.” Iowa League of Cities,

711 F.3d at 873 (quoting Northwest Nat’l Bank v. U.S. Dep’t of the Treasury, 917

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

In my view, HUD’s Memorandum is an interpretative rule. The Memorandum

explains HUD’sinterpretation of the FHA’s “sex discrimination” language: “HUD’s

Office of General Counsel has concluded that [the FHA’s] sex discrimination

provisions . . . prohibit discrimination because of sexual orientation and gender

identity.” It then thrice directs FHEO and other relevant entities to so “interpret” the

FHA’s prohibition on sex discrimination. The Memorandumstates what HUD thinks

the statute means and instructs affected parties of their duties. These are the

hallmarks of an interpretative rule. See Iowa League of Cities, 711 F.3d at 873. 

Interestingly, President Biden—author of the Executive Order prompting the

4The Administrative Procedure Act exemptsinterpretative rulesfromthe notice

and comment requirement “[e]xcept when notice or hearing is required by statute.” 

5 U.S.C. § 553(b). The notice and comment requirement under the FHA falls under

this exception.

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Memorandum—characterized the Memorandum as a “rule change.” Proclamation

No. 10,177, 86 Fed. Reg. 19,775 (Apr. 11, 2021). I agree and therefore believe the

Memorandum is subject to the FHA’s notice and comment requirement.

But even if we pretend the Memorandum is not what the President says it is,

the College has an alternative basis for its procedural right to notice and comment. 

When HUD issued the Memorandum, a federal regulation required notice and

comment for “significant guidance documents.” 24 C.F.R. § 11.1(b) (2020). A

guidance document included “a statement of general applicability, designed to shape

or intended to have future effect on the behavior of regulated parties, that sets forth

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

(2020). And a guidance document was “significant” if it could “reasonably be

anticipated to . . . [r]aise novel legal or policy issues arising out of legal mandates[or]

the President’s priorities.” Id. § 11.2(d)(4) (2020). While these regulations under 24

C.F.R. §§ 11.1 and 11.2 have since been revoked, see Implementing Executive Order

13992, 86 Fed. Reg. 35,391-01, at 35,392 (July 6, 2021), HUD wasrequired to follow

them while they “remain[ed] in force.” Voyageurs Region Nat’l Park Ass’n v. Lujan,

966 F.2d 424, 428 (8th Cir. 1992).5

Here, HUD’s Memorandum interpreted the FHA’s prohibition on sex

discrimination. It directed FHEO to “accept for filing and investigate all complaints

of sex discrimination” based on “gender identity or sexual orientation” (emphasis

added). It called HUD’s prior FHA enforcement “limited,” “insufficient,” and

“inconsistent” with Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). It sought to

5As one court recently stated: “Under deeply rooted principles of administrative

law, not to mention common sense, government agencies are generally required to

follow their own regulations. When agenciesfail to do so, the APA (as developed by

case law) gives aggrieved parties a cause of action to enforce compliance.” Fed.

Defs. of N.Y., Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 130 (2d Cir. 2020)

(internal citations omitted).

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rectify denials of “the constitutional promise of equal protection under the law” for

transgender individuals “throughout most of American history.” It specified its

requirements arose fromthe Supreme Court’s Bostock decision and PresidentBiden’s

priorities articulated in Executive Order 13,988. In short, if the Memorandum is not

an interpretative rule, it is at minimum a significant guidance document. It strains

credulity to say otherwise.

Whether the Memorandum was an interpretative rule or a significant guidance

document, the complaint plausibly alleged HUD deprived the College of its right to

notice and comment. Such deprivation constitutes an injury in fact sufficient for

standing if the notice and comment right was “designed to protect some threatened

concrete interest of” the College. Iowa League ofCities, 711 F.3d at 870–71 (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 n.8 (1992)). At this stage of the

proceedings, I would conclude the notice and comment right was designed to protect

a threatened concrete interest of the College. See Am. Farm Bureau Fed’n v. EPA,

836 F.3d 963, 968 (8th Cir. 2016) (“In assessing a plaintiff’s Article III standing, we

must assume that on the merits the plaintiffs would be successful in their claims.”

(cleaned up and quotation omitted)). The College has a concrete interest in

complying with the FHA as interpreted by HUD. Notice and comment rights would

have helped ensure the College was “treated with fairness and transparency after due

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

871. It is plausible at this stage to conclude this notice and comment right was

designed to protect this concrete interest. The College therefore plausibly pled both

that it suffered an injury in fact and that HUD’s failure to follow proper notice and

comment procedures caused this injury.

The College also meets the lower showing required for redressability. A party

deprived of its notice and comment right, as here, “can assert that right without

meeting all the normal standards for redressability and immediacy.” Id. (quoting

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Lujan, 504 U.S. at 572 n.7). Redressability in such casesis satisfied “if there is some

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

the decision that allegedly harmed the litigant.” Id. (quoting Massachusetts v. EPA,

549 U.S. 497, 518 (2007)). The harmed party, however, need not “show that the

agency would alter its rules upon following the proper procedures.” Id. Here, the

College shows “some possibility” that enjoining the Memorandum’s enforcement

would prompt HUD to reconsider the Memorandum.

The College thus has standing because, if nothing else, it was deprived of its

opportunity for notice and comment. I would therefore reverse the district court’s

dismissal of the College’s complaint.

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