The School of the Ozarks, Inc. v. Biden et al

Filing 24

ORDER: (1) dismissing Plaintiff's motion for temporary restraining order and preliminary injunction (Doc. #2 ) and (2) dismissing the case. Signed on 6/4/2021 by District Judge Roseann Ketchmark. (Skelton, Sara) Modified on 6/9/2021 to correct linked document (Crocker, Susan).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
THE SCHOOL OF THE OZARKS, INC.,

)
)
Plaintiff,
)
)
v.
)
)
JOSEPH R. BIDEN JR., IN HIS OFFICIAL
)
CAPACITY AS PRESIDENT OF THE
)
UNITED STATES; et al,
)
)
Defendants.
)
ORDER

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

Before the Court is Plaintiff The School of the Ozarks, Inc.’s motion for a temporary
restraining order and for a preliminary injunction. (Doc. 2.) The motion is fully briefed. (Docs.
19, 20.) The Court held a hearing May 19, 2021 and DENIED the motion. These written reasons
follow.
Background
Plaintiff filed its verified complaint on April 15, 2021, largely challenging a memorandum
titled “Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act” 1
(“Memorandum”). Specifically, the verified complaint (Doc. 1) alleges:
1. the Memorandum is a new legislative rule and should be held unlawful and set aside as an
agency action enacted without observance of notice and comment requirements in
contravention of 5 U.S.C. § 706(2)(D);
2. the Memorandum should be set aside under 5 U.S.C. § 706(2)(A)-(C), as an agency action
“not in accordance with law,” “in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right,” or “contrary to constitutional right, power, privilege, or
immunity;”
3. the Memorandum should be held unlawful and set aside under 5 U.S.C. § 706(2)(A) as an
agency action that is arbitrary, capricious, or an abuse of discretion;

1

U.S. Dep’t of Hous. & Urban Dev., Implementation of Executive Order 13988 on the Enforcement
of the Fair Housing Act (Feb. 11, 2021), https://www.hud.gov/sites/dfiles/PA/documents/
HUD_Memo_EO13988.pdf.

Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 1 of 7

4. Defendants failed to prepare and make available for public comment an initial and final
regulatory flexibility analysis before issuing the Memorandum in violation of 5 U.S.C.
§ 603(a);
5. Defendant Worden’s issuance of the Memorandum violated the Appointments Clause of
Article II of the United States Constitution;
6. the Memorandum, its enforcement, or alternatively the Fair Housing Act (“FHA”) and its
implementing regulations, violate (a) the First Amendment to the United States
Constitution’s protections of Freedom of Speech, Assembly, and Association, and (b) the
Due Process protection afforded by the Fifth Amendment to the United States Constitution;
7. any application or enforcement of the FHA, U.S. Department of Housing and Urban
Development (“HUD”) regulations, or the Memorandum to discrimination because of
sexual orientation or gender identity exceeds Congress’s Article I enumerated powers and
transgresses on the reserved powers of the State under the Constitution’s structural
principles of federalism and the Tenth Amendment;
8. the Memorandum, or in the alternative the FHA, and HUD’s implementing regulations, are
unlawful under 42 U.S.C. § 2000bb et seq. (the Religious Freedom Restoration Act
(“RFRA”)); and
9. the Memorandum, or in the alternative the FHA, and HUD’s implementing regulations,
impose an impermissible burden on Plaintiff’s religious exercise, its hybrid exercise of free
speech and religion, and its hybrid exercise of freedom of association and religion, and do
not withstand strict scrutiny analysis in violation of the First and Fifth Amendments to the
United States Constitution.
Plaintiff’s motion for temporary restraining order and preliminary injunction and
suggestions in support were filed contemporaneously with the verified complaint on April 15,
2021. (Docs. 2 and 2-1.) In its motion, Plaintiff sought interim injunctive relief on Claims 1, 2,
3, 5, and 6 of its verified complaint as set forth above. Specifically, Plaintiff asks this Court to:
[e]njoin the Memorandum and any enforcement of it by Defendants (including their
officers, agents, servants, employees, and all persons in active concert or
participation with them who receive actual notice of this injunction), pending
further ruling by this Court. Plaintiff asks that persons subject to this injunction be
prohibited from taking any action to enforce or investigate an alleged or actual
violation of the directive and its requirements. This includes acts by Defendants
that tend to prohibit, penalize, or burden private religious educational institutions
2
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 2 of 7

because they have or implement student housing policies based on biological sex,
because they have or implement codes of student conduct in housing that require
sexual relations to be limited to a marriage between one biological man and one
biological woman, or because they make any statements or notices about, related
to, or substantially equivalent to such policies.
Legal Standard
Standing is a threshold or jurisdictional issue. See Cook v. ACS State & Local Sols., Inc.,
756 F.Supp.2d 1104, 1106 (W.D. Mo. 2010). A district court does not have subject matter
jurisdiction when a plaintiff lacks standing. Nelson v. Maples, 672 F. App’x 621 (8th Cir. 2017)
(citing Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002)). “Standing to sue is a
doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). “To establish the ‘irreducible constitutional minimum of standing,’
[Plaintiff] must show [it has] ‘(1) suffered an injury-in-fact, (2) that is fairly traceable to the
challenged action of [Defendants], and (3) is likely to be redressed by a favorable judicial
decision.’” Yeransian v. B. Riley FBR, Inc., 984 F.3d 633, 636–37 (8th Cir. 2021) (quoting Spokeo,
136 S. Ct. at 1547).
“An injury-in-fact exists where the plaintiff has sustained, or is in immediate danger of
sustaining, a concrete and particularized harm that is actual or imminent, not conjectural or
hypothetical.” Philadelphia Indem. Ins. Co. v. Atl. Specialty Ins. Co., No. 6:20-CV-03065-MDH,
2020 WL 4819949, at *1 (W.D. Mo. Aug. 19, 2020) (internal quotation marks omitted). Injury is
“fairly traceable” to the government action at issue where a causal connection is alleged between
the government’s action and the plaintiff’s injury. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
592 (8th Cir.2009). “Because redressability is an ‘irreducible’ component of standing . . . no
federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the
plaintiff’s injury.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (citing Spokeo, 578
U.S. at 338).
Analysis
The Court recognizes the sensitivity and significance of the underlying societal issues of
this case. It is this recognition that warrants the Court’s caution in making its ruling here and
illustrates the importance of employing judicial restraint. Exceeding the case and controversy
limitations set forth in Article III of the Constitution constitutes judicial activism and is not the
proper role of this Court. While value judgment can play a part in legislation, it is not the place of
3
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 3 of 7

judges, whose role is to interpret the law. See Wisconsin Cent. Ltd. v. United States, 138 S. Ct.
2067, 2074, (2018) (“Congress alone has the institutional competence, democratic legitimacy, and
(most importantly) constitutional authority to revise statutes in light of new social problems and
preferences[,]” whereas the courts’ role “is to interpret the words consistent with their ordinary
meaning ... at the time Congress enacted the statute.”). In keeping with the boundaries limiting
the role of the courts, this Court is unwilling to decide a Constitutional issue not before it to
invalidate legislative or executive actions.
Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and
“Controversies.”

As the United States Supreme Court has explained, “[n]o principle is more

fundamental to the judiciary’s proper role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 408 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341
(2006)). “One element of the case-or-controversy requirement” is that plaintiffs “must establish
that they have standing to sue.” Id. (internal quotation marks omitted). Ensuring Article III
standing prevents the judicial process from violating the separation of powers of the political
branches. Id. In light of this purpose, the standing determination is particularly “rigorous when
reaching the merits of the dispute would force us to decide whether an action taken by one of the
other two branches of the Federal Government was unconstitutional.” Id. (internal quotation marks
omitted).
For the reasons below, Plaintiff’s motion for temporary restraining order and preliminary
injunction is not justiciable as no Article III controversy exists. Plaintiff fails to show the requisite
elements of injury-in-fact, causation, and redressability.
I.

Injury-In-Fact
The Court finds Plaintiff fails to demonstrate the requisite element of an injury-in-fact.

Plaintiff has not sustained, and is not “in immediate danger of sustaining, a concrete and
particularized harm that is actual or imminent, not conjectural or hypothetical.” Philadelphia
Indem. Ins. Co., 2020 WL 4819949, at * (internal quotation marks omitted). Plaintiff’s motion
fails to show the Memorandum imposes any restriction, requirement, or penalty on private housing
providers, including Plaintiff. Plaintiff has not alleged it is being investigated, charged, or
otherwise subjected to any enforcement action pursuant to the Memorandum. The Memorandum
does not specify how HUD will determine FHA liability based on Bostock in any specific factual
4
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 4 of 7

setting or considering potential exemptions. As such, any injury alleged by Plaintiff is not
concrete. Accordingly, Plaintiff’s Motion fails to establish injury-in-fact as required to establish
Article III standing.
II.

Causation
The Court finds Plaintiff does not show any injury that is “fairly traceable” to the

government action at issue in that it fails to plausibly allege any causal connection between the
Memorandum and any alleged injury. Braden, 588 F.3d at 592. Plaintiff’s Motion fails to show
the Memorandum has the legal authority to define or modify its rights or obligations under the
FHA. The Memorandum reiterates intake procedures for FHA complaints and connects them to
the United States Supreme Court’s opinion in Bostock v. Clayton County, Ga., 140 S.Ct. 1731
(2020). Moreover, the Memorandum does not specify how HUD will determine FHA liability
based on Bostock in any specific factual setting or considering potential exemptions. As such,
Plaintiff’s Motion fails to establish the element of traceability to the action of Defendants fact as
required to establish Article III standing. Yeransian, 984 F.3d at 637.
III. Redressability
Even if Plaintiff could establish causation, Plaintiff’s motion fails for lack of redressability
because enjoining Defendants from following or applying the Memorandum would not foreclose
the possibility that Plaintiff could be held liable for violation of the FHA.
Any potential liability Plaintiff incurs for violating the FHA would flow directly from the
Act itself, as well as applicable case law including Bostock, and not from the Memorandum.
Enjoining Defendants from “applying” the Memorandum by accepting and investigating
complaints would not foreclose the possibility that Plaintiff could be held liable for FHA
violations. Even without the Memorandum, individuals remain free to bring claims for FHA
violations through private actions, and courts would remain free to adjudicate them under the
statute and Bostock, without necessarily involving Defendants. The relief Plaintiff seeks, to
“[e]njoin the Memorandum and any enforcement of it by Defendants[,]” would not preclude
investigations and enforcement by the recipients of the Memorandum. Such investigations and
enforcement may occur independent of the Memorandum, initiated and executed instead pursuant
only to the authority of the FHA and the guidance of Executive Order 13988. Simply put, Plaintiff
is seeking an advisory opinion from this Court declaring it cannot be liable for housing
discrimination. Such an opinion would not shield Plaintiff from all liability and is outside the
5
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 5 of 7

constitutional authority of the Court. Therefore, because the remedy sought cannot redress
Plaintiff’s alleged injury, Plaintiff lacks standing. Uzuegbunam, 141 S. Ct. at 801.
IV. Standing and Subject Matter Jurisdiction as to Plaintiff’s Remaining Claims
Given the context of the above analysis of Plaintiff’s claims included in its motion for
temporary restraining order and preliminary injunction, the Court sua sponte considers its subject
matter jurisdiction as to the remaining claims in Plaintiff’s verified complaint. Fort Bend Cty.,
Texas v. Davis, 139 S. Ct. 1843, 1849 (2019) (courts must consider subject matter jurisdiction sua
sponte); Clark v. Baka, 593 F.3d 712, 714 (8th Cir. 2010) (“We are obligated to consider sua
sponte our jurisdiction to entertain a case where, as here, we believe that jurisdiction may be
lacking.”)
Each of Plaintiff’s Claims 4, 7, 8, and 9 challenge the Memorandum; any application or
enforcement of the FHA, HUD regulations, or the Memorandum to discrimination because of
sexual orientation or gender identity; and the FHA, and HUD’s implementing regulations as
violating federal statutes and the Constitution. However, as with the claims Plaintiff chose to
include in its request for interim relief, these claims fail for lack of standing due to Plaintiff’s
inability to establish an injury-in-fact. Plaintiff has not shown in its verified complaint that it “has
sustained, or is in immediate danger of sustaining, a concrete and particularized harm that is actual
or imminent, not conjectural or hypothetical.” Philadelphia Indem. Ins. Co., 2020 WL 4819949,
at *1 (internal quotation marks omitted). Plaintiff has not alleged it is being investigated, charged,
or otherwise subjected to any enforcement action pursuant to the Memorandum; any application
or enforcement of the FHA, HUD regulations, or the Memorandum to discrimination because of
sexual orientation or gender identity; or the FHA, and HUD’s implementing regulations. Plaintiff
has not plausibly alleged any indication that such potential situation is imminent.
Because Plaintiff fails to establish standing for each of the claims in its verified complaint,
this Court lacks subject matter jurisdiction over this case.

6
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 6 of 7

Conclusion
After careful consideration of the law, Plaintiff’s verified complaint, and the parties’ legal
briefing and arguments, the Court ORDERS:
(1) Plaintiff’s motion for temporary restraining order and preliminary injunction is
DISMISSED.2
(2) This case is DISMISSED.
IT IS SO ORDERED.
/s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: June 4, 2021

2

Even if Plaintiff had established standing and this Court had jurisdiction, the Memorandum does
not carry the force of law because it has no legal consequences of its own accord. Rather, it is a general
statement of policy. The Memorandum thus does not violate the First Amendment as it does not restrict
speech.

7
Case 6:21-cv-03089-RK Document 24 Filed 06/04/21 Page 7 of 7