Last week, the Solicitor General finally filed his brief expressing the views of the United States on whether the U.S. Supreme Court should grant the petition for certiorari pending in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.  (The Supreme Court invited the Solicitor General to file the brief in October 2012.)  The case challenges the validity of HUD’s interpretation that disparate impact can be used to establish liability under the Fair Housing Act (FHA), even if there is no discriminatory intent.  We have been closely following the developments in the case because of its potential implications for the validity of the CFPB’s position that disparate impact can be used to establish ECOA liability. 

Predictably, the Solicitor General’s brief opposes the petition for certiorari.  The brief argues that the question of whether disparate impact claims are available under the FHA does not warrant review because there is no conflict in the courts of appeals (11 of which, according to the Solicitor General, have held such claims are available) and HUD’s rule interpreting the FHA to allow disparate impact claims is entitled to deference and is reasonable.  It also argues that the Supreme Court does not need to grant certiorari to settle a disagreement among the courts of appeal about how disparate impact claims should be analyzed because HUD’s rule establishes a uniform framework.  Finally, the brief argues that the case is not the right vehicle for deciding the FHA issue because of its interlocutory posture and the petitioners’ failure to raise the questions presented by the certiorari petition in the district court or Third Circuit. 

It is commonplace for the party that is opposed to the Solicitor General’s position to file a  supplemental brief in response and we understand that the Township of Mount Holly plans to file a supplemental brief this week.  We do not expect the respondent/plaintiff to file a supplemental brief.  Once the Township files its supplemental brief, the court will be positioned to consider the petition for certiorari in conference.   

The Mt. Holly case is currently back in the district court, having been remanded by the Third Circuit for further factual development after the Third Circuit reversed the district court’s grant of summary judgment.  The Magistrate Judge has scheduled settlement conferences for early next month in which the Solicitor General will not be involved. 

Even if the petition for certiorari is granted, it is possible Mt. Holly will settle before the Supreme Court has a chance to rule on the merits, like City of St. Paul v. Magner did last year.  The Supreme Court had granted certiorari in City of St. Paul, which raised the same issue under the FHA, but the case settled under murky circumstances on the eve of oral argument.