STATE OF WASHINGTON STATE OF NEW YORK STATE OF RHODE ISLAND STATE OF ARIZONA STATE OF CALIFORNIA STATE OF COLORADO STATE OF CONNECTICUT STATE OF DELAWARE DISTRICT OF COLUMBIA STATE OF ILLINOIS OFFICE OF THE GOVERNOR ANDY BESHEAR STATE OF MAINE STATE OF MARYLAND COMMONWEALTH OF MASSACHUSETTS STATE OF MICHIGAN STATE OF MINNESOTA STATE OF NEW JERSEY STATE OF NEW MEXICO STATE OF OREGON GOVERNOR JOSH SHAPIRO STATE OF VERMONT COMMONWEALTH OF VIRGINIA STATE OF WISCONSIN v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ERIC SCOTT TURNER (2026)

ORDER OF COURT

Defendants-Appellants U.S. Department of Housing and Urban Development, et al. (“HUD”), seek a stay pending appeal of an order granting summary judgment to Plaintiffs-Appellees (a collection of States and other interested parties) on their claim that HUD wrongfully failed to engage in notice and comment procedures prior to issuing a Notice of Funding Opportunity (“NOFO”) that set aside $1.3 billion to be awarded for transitional housing and “supportive service only” projects under the Continuum of Care program. In reviewing the motion for stay pending appeal, we apply the familiar standard set forth in Nken v. Holder, 556 U.S. 418, 426 (2009).

After careful review of the parties’ briefs and supplemental submissions, we conclude that HUD has met its burden to show its entitlement to a stay pending appeal. HUD has made a strong showing that it is likely to succeed on the merits of its challenge to the district court's holding that the set-aside in the NOFO was subject to notice and comment requirements pursuant to 42 U.S.C. § 11386b(d). That holding turned on the district court's determination that the set-aside constitutes a “bonus or other incentive[ ]” under that provision. We conclude that HUD is likely to succeed on the argument that the set-aside is not a “bonus or other incentive[ ]” as that term is used in § 11386b(d). We further conclude that HUD would suffer irreparable injury absent a stay, given that HUD only has until December 1, 2026 to make awards to applicants for Continuum of Care funds. See Consolidated Appropriations Act, Pub. L. No. 119-75, 140 Stat. 173, 400 (2026). Although HUD is likely to succeed on the merits, it would be unable to implement the NOFO in a timely manner -- thereby creating funding gaps -- unless a stay enters.

Accordingly, the motion for stay pending appeal is granted.

By the Court:

Anastasia Dubrovsky, Clerk