CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01076−BAH

NATIONAL FAIR HOUSING ALLIANCE et al v. CARSON et Date Filed: 05/08/2018

al

Date Terminated: 08/17/2018

Assigned to: Chief Judge Beryl A. Howell

Jury Demand: None

Cause: 05:551 Administrative Procedure Act

Nature of Suit: 899 Administrative

Procedure Act/Review or Appeal of

Agency Decision

Jurisdiction: U.S. Government Defendant

Plaintiff

NATIONAL FAIR HOUSING ALLIANCE

represented by Ajmel A. Quereshi NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC 700 14th Street NW Suite 600 Washington, DC 20005 (202) 216−5574 Fax: (202) 682−1312 Email: aquereshi@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Marcy Zieve PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588−1000 Fax: (202) 588−7795 Email: azieve@citizen.org ATTORNEY TO BE NOTICED

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601−4266 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Jon M. Greenbaum LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8325 Email: jgreenbaum@lawyerscommittee.org ATTORNEY TO BE NOTICED

Michael Gerhart Allen RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 ext. 603 Fax: (202) 728−0848

Plaintiff
TEXAS LOW INCOME HOUSING INFORMATION SERVICE

Email: mallen@relmanlaw.com ATTORNEY TO BE NOTICED
Morgan Whitney Williams NATIONAL FAIR HOUSING ALLIANCE 1331 Pennsylvania Avenue, NW Suite 650 Washington, DC 20004 (202) 898−1661 PRO HAC VICE ATTORNEY TO BE NOTICED
Sara K. Pratt RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 Fax: (202) 728−0848 PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Silverstein LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662−8316 Email: tsilverstein@lawyerscommittee.org ATTORNEY TO BE NOTICED
Sasha Samberg−Champion RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 Fax: (202) 728−0848 Email: ssamberg−champion@relmanlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel A. Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara K. Pratt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Marcy Zieve (See above for address) ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff TEXAS APPLESEED

Jon M. Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Michael Gerhart Allen (See above for address) ATTORNEY TO BE NOTICED
Morgan Whitney Williams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Silverstein (See above for address) ATTORNEY TO BE NOTICED
Sasha Samberg−Champion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel A. Quereshi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara K. Pratt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Marcy Zieve (See above for address) ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Melissa Madison Sloan TEXAS APPLESEED 1609 Shoal Creek Boulevard Suite 201 Austin, TX 78701 (512) 473−2800 PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Gerhart Allen (See above for address) ATTORNEY TO BE NOTICED
Morgan Whitney Williams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant BENJAMIN S. CARSON, SR. in his official capacity as Secretary of the U.S. Department of Housing and Urban Development
Defendant U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Movant STATE OF NEW YORK
Amicus POLICYLINK

Thomas Silverstein (See above for address) ATTORNEY TO BE NOTICED
Sasha Samberg−Champion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Daniel J. Halainen U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 12304 Washington, DC 20005 (202) 616−8101 Fax: (202) 616−8470 Email: daniel.j.halainen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Halainen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lilia Isobel Toson NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL Civil Rights Bureau 28 Liberty Street 19th Street New York, NY 10005 (212) 416−6365 Email: Lilia.Toson@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Colangelo NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL 28 Liberty Street 19th Floor New York, NY 10005 (212) 416−6057 Email: Matthew.Colangelo@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stanley Joseph Brown HOGAN LOVELLS US LLP 390 Madison Ave New York, NY 10017 (212) 918−3692 Fax: (212) 918−3100 Email: stanley.brown@hoganlovells.com

Amicus NATIONAL HOUSING LAW PROJECT
Amicus STATE OF MARYLAND
Amicus STATE OF CALIFORNIA Amicus COMMONWEALTH OF MASSACHUSETTS Amicus COMMONWEALTH OF VIRGINIA Amicus STATE OF WASHINGTON Amicus DISTRICT OF COLUMBIA Amicus CITY OF AUSTIN, TEXAS Amicus CITY OF NEW ORLEANS

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Gittens HOGAN LOVELLS US LLP 1735 Market Street Philadelphia, PA 19103 (267) 675−4657 Fax: (267) 675−4601 Email: adrienne.gittens@hoganlovells.com ATTORNEY TO BE NOTICED
represented by Shaylyn Capri Cochran COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408−3614 Fax: (202) 408−4699 Email: scochran@cohenmilstein.com ATTORNEY TO BE NOTICED
represented by John Robert Grimm MARYLAND OFFICE OF THE ATTORNEY GENERAL Civil Litigation Division 200 St. Paul Place Baltimore, MD 21202 (410) 576−6339 Fax: (410) 576−6955 Email: jgrimm@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus CITY OF OAKLAND
Amicus CITY OF PORTLAND, OREGON
Amicus CITY OF SEATTLE, THE
Amicus CITY OF TOLEDO

Date Filed 05/08/2018
05/08/2018
05/08/2018 05/08/2018 05/08/2018 05/08/2018 05/08/2018 05/08/2018 05/08/2018 05/08/2018
05/09/2018

# Docket Text
1 COMPLAINT against BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ( Filing fee $ 400 receipt number 0090−5467308) filed by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Ben Carson, # 3 Summons HUD)(Samberg−Champion, Sasha) (Entered: 05/08/2018)
2 MOTION for Preliminary Injunction and for Summary Judgment by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Maxwell Ciardullo, # 3 Declaration of Janet Hostetler, # 4 Declaration of Justin Steil, # 5 Declaration of Madison Sloan, # 6 Declaration of Deborah Goldberg, # 7 Declaration of John Henneberger, # 8 Declaration of Lisa Rice, # 9 Declaration of Daniel Urevick−Ackelsberg, # 10 Memorandum in Support of Plaintiffs' Motion for a Preliminary Injunction and for Summary Judgment)(Samberg−Champion, Sasha). Added MOTION for Summary Judgment on 5/18/2018 (zrdj). (Entered: 05/08/2018)
3 NOTICE of Appearance by Allison Marcy Zieve on behalf of All Plaintiffs (Zieve, Allison) (Entered: 05/08/2018)
4 NOTICE of Appearance by Ajmel A. Quereshi on behalf of All Plaintiffs (Quereshi, Ajmel) (Entered: 05/08/2018)
Case Assigned to Chief Judge Beryl A. Howell. (zmd) (Entered: 05/08/2018)
5 SUMMONS (4) Issued Electronically as to BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 05/08/2018)
6 NOTICE of Appearance by Thomas Silverstein on behalf of All Plaintiffs (Silverstein, Thomas) (Entered: 05/08/2018)
7 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 05/08/2018)
8 STANDING ORDER. Signed by Chief Judge Beryl A. Howell on May 8, 2018. (lcbah2) (Entered: 05/08/2018)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/8/2018. Answer due for ALL FEDERAL DEFENDANTS by 7/7/2018. (Samberg−Champion, Sasha) (Entered: 05/08/2018)
MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER to control the timing of proceedings in this matter: (1) by May 15, 2018, the defendants shall file any Opposition to the plaintiffs' 2 Motion For A Preliminary Injunction And For Expedited Summary Judgment, see LCvR 65.1(c); and (2) by May 22, 2018, the plaintiffs shall file any Reply to the defendants' Opposition. Signed by Chief Judge Beryl A. Howell on May 9, 2018. (lcbah2) (Entered: 05/09/2018)

05/10/2018 05/10/2018 05/10/2018 05/10/2018 05/10/2018
05/11/2018 05/14/2018
05/14/2018
05/15/2018 05/15/2018 05/18/2018 05/22/2018 05/22/2018

Set/Reset Deadlines: Opposition to 2 Motion for a Preliminary Injunction and for Expedited Summary Judgment due by 5/15/2018; Reply due by 5/22/2018. (tg) (Entered: 05/10/2018)
10 NOTICE of Appearance by Michael Gerhart Allen on behalf of All Plaintiffs (Allen, Michael) (Entered: 05/10/2018)
11 NOTICE of Appearance by Daniel J. Halainen on behalf of All Defendants (Halainen, Daniel) (Entered: 05/10/2018)
12 Consent MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction and for Summary Judgment by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 05/10/2018)
VACATED PURSUANT TO MINTE ORDER DATED 5/23/2018.....MINUTE ORDER (paperless) GRANTING the defendants' 12 Consent Motion for Extension of Time, and ISSUING the following SCHEDULING ORDER to control the timing of proceedings in this matter: (1) the defendants shall file, by May 29, 2018, any response to the plaintiffs' 2 Motion for a Preliminary Injunction and for Expedited Summary Judgment; and (2) the plaintiffs shall file, by June 8, 2018, any reply to the defendants' response. It is further ORDERED that any amicus briefs shall be filed by May 22, 2018. Signed by Chief Judge Beryl A. Howell on May 10, 2018. (lcbah2) Modified on 5/25/2018 (zrdj). (Entered: 05/10/2018)
Set/Reset Deadlines: Amicus briefs due by 5/22/2018; defendants' response to the 2 motion for preliminary injunction and for expedited summary judgment due by 5/29/2018; plaintiffs' reply due by 6/8/2018. (tg) (Entered: 05/11/2018)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Melissa Madison Sloan, :Firm− Texas Appleseed, :Address− 1609 Shoal Creek Blvd, Suite 201, Austin, Texas 78701. Phone No. − (512) 473−2800. Filing fee $ 100, receipt number 0090−5480311. Fee Status: Fee Paid. by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Declaration Declaration of Melissa Madison Sloan)(Samberg−Champion, Sasha) (Entered: 05/14/2018)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Sara K. Pratt, :Firm− Relman, Dane & Colfax PLLC, :Address− 1225 19th Street NW, Suite 600, Washington, DC 20036. Phone No. − 202−728−1888. Fax No. − 202−728−0848 Filing fee $ 100, receipt number 0090−5480444. Fee Status: Fee Paid. by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Declaration of Sara K. Pratt)(Samberg−Champion, Sasha) (Entered: 05/14/2018)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 13 Motion for Admission of Attorney Pro Hac Vice of Melissa Madison Sloan. Melissa Madison Sloan may enter an appearance pro hac vice for the purpose of representing the plaintiff Texas Appleseed in this action. Signed by Chief Judge Beryl A. Howell on May 15, 2018. (lcbah2) (Entered: 05/15/2018)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 14 Motion for Admission of Attorney Pro Hac Vice of Sara K. Pratt. Sara K. Pratt may enter an appearance pro hac vice for the purpose of representing the plaintiffs in this action. Signed by Chief Judge Beryl A. Howell on May 15, 2018. (lcbah2) (Entered: 05/15/2018)
15 NOTICE by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Halainen, Daniel) (Entered: 05/18/2018)
16 Joint STATUS REPORT and Motion to Set Briefing Schedule by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 05/22/2018)
17 MOTION for Briefing Schedule by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (See docket entry 16 to view document)(zrdj) (Entered: 05/22/2018)

05/23/2018
05/23/2018 05/29/2018 05/29/2018
05/31/2018 05/31/2018 05/31/2018
06/01/2018 06/01/2018 06/05/2018 06/05/2018

MINUTE ORDER (paperless) GRANTING, upon consideration of the parties' 16 Joint Status Report and Motion to Set Briefing Schedule, the parties' 17 Motion for Briefing Schedule. Accordingly, this Court VACATES the Minute Order, dated May 10, 2018, and ISSUES the following SCHEDULING ORDER to control the timing of proceedings in this matter: (1) the plaintiffs shall file, by May 29, 2018, their Amended Complaint and Renewed Motion for a Preliminary Injunction and for Expedited Summary Judgment; (2) the defendants shall file, by June 12, 2018, any response to the plaintiffs' Renewed Motion for a Preliminary Injunction and for Expedited Summary Judgment; and (3) the plaintiffs shall file, by June 26, 2018, any reply to the defendants' response. It is further ORDERED that any amicus briefs shall be filed by June 5, 2018. Signed by Chief Judge Beryl A. Howell on May 23, 2018. (lcbah2) (Entered: 05/23/2018)
Set/Reset Deadlines: Plaintiff's Amended Complaint, Renewed Motion for Preliminary Injunction, and Expedited Summary Judgment due by 5/29/2018. Defendants' response to Plaintiff's Renewed Motion for Preliminary Injunction and Expedited Summary Judgment Motion due by 6/12/2018. Plaintiff's reply in support of its Renewed Motion for Preliminary Injunction and Expedited Summary Judgment due by 6/26/2018. Any amicus briefs due by 6/5/2018. (hmc) (Entered: 05/23/2018)
18 AMENDED COMPLAINT against All Defendants filed by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE.(Samberg−Champion, Sasha) (Entered: 05/29/2018)
19 MOTION for Preliminary Injunction , MOTION for Summary Judgment by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Declaration of Daniel Urevick−Ackelsberg, # 2 Declaration of Deborah Goldberg, # 3 Declaration of Franklin A. Lenk, # 4 Declaration of Maxwell Ciardullo, # 5 Declaration of Janet Hostetler, # 6 Declaration of John Henneberger, # 7 Declaration of Madison Sloan, # 8 Declaration of Justin Steil, # 9 Declaration of Lisa Rice, # 10 Text of Proposed Order, # 11 Memorandum in Support of Motion for Preliminary Injunction and Summary Judgment)(Samberg−Champion, Sasha) (Entered: 05/29/2018)
20 NOTICE of Appearance by Stanley Joseph Brown on behalf of PolicyLink (Brown, Stanley) (Entered: 05/31/2018)
21 Consent MOTION for Leave to File Amicus Curiae by PolicyLink (Attachments: # 1 Proposed Order)(Brown, Stanley) (Entered: 05/31/2018)
22 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Morgan Whitney Williams, :Firm− National Fair Housing Alliance, :Address− 1101 Vermont Ave NW, Suite 710, Washington DC, 20005. Phone No. − (202) 898−1661. Filing fee $ 100, receipt number 0090−5510235. Fee Status: Fee Paid. by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Declaration of Morgan Whitney Williams)(Samberg−Champion, Sasha) (Entered: 05/31/2018)
MINUTE ORDER (paperless) GRANTING PolicyLink's 21 Consent Motion of Amicus Curiae PolicyLink for Leave. Accordingly, PolicyLink may file, by June 5, 2018, an amicus brief in support of the plaintiff's Motion for a Preliminary Injunction and for Expedited Summary Judgment. Signed by Chief Judge Beryl A. Howell on June 1, 2018. (lcbah2) (Entered: 06/01/2018)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 22 Motion for Admission Pro Hac Vice of Morgan Whitney Williams. Morgan Whitney Williams may enter an appearance pro hac vice for the purpose of representing the plaintiffs in this action. Signed by Chief Judge Beryl A. Howell on June 1, 2018. (lcbah2) (Entered: 06/01/2018)
23 MOTION for Leave to File Brief of Amici Curiae by NATIONAL HOUSING LAW PROJECT (Attachments: # 1 Supplement Amicus Brief, # 2 Appendix, # 3 Text of Proposed Order)(Cochran, Shaylyn) (Entered: 06/05/2018)
24 MOTION to Intervene as Plaintiff by State of New York (Attachments: # 1 Memorandum in Support, # 2 Exhibit Complaint in Intervention, # 3 Text of Proposed Order)(Colangelo, Matthew) (Entered: 06/05/2018)

06/05/2018 06/05/2018
06/05/2018
06/05/2018 06/05/2018
06/05/2018 06/05/2018 06/06/2018
06/06/2018 06/06/2018 06/07/2018 06/12/2018
06/14/2018

25 NOTICE of Appearance by Matthew Colangelo on behalf of State of New York (Colangelo, Matthew) (Entered: 06/05/2018)
26 SUPPLEMENTAL MEMORANDUM to re 19 MOTION for Preliminary Injunction MOTION for Summary Judgment filed by State of New York. (Attachments: # 1 Exhibit Declaration of RuthAnne Visnauskas, # 2 Exhibit Declaration of Adam Salgado, # 3 Exhibit Declaration of Matt Murphy, # 4 Exhibit Unpublished Order, NRDC v. National Highway Traffic Safety Admin., Nos. 17−2780, 17−2806 (2d Cir. Apr. 23, 2018))(Colangelo, Matthew) (Entered: 06/05/2018)
27 AMICUS BRIEF by STATE OF MARYLAND, STATE OF CALIFORNIA, COMMONWEALTH OF MASSACHUSETTS, COMMONWEALTH OF VIRGINIA, STATE OF WASHINGTON, DISTRICT OF COLUMBIA, CITY OF AUSTIN, TEXAS, CITY OF NEW ORLEANS, CITY OF OAKLAND, CITY OF PORTLAND, OREGON, CITY OF SEATTLE, THE, CITY OF TOLEDO re 19 MOTION for Preliminary Injunction MOTION for Summary Judgment (Grimm, John) Modified on 6/11/2018 to edit event (zrdj). (Entered: 06/05/2018)
28 NOTICE of Appearance by John Robert Grimm on behalf of STATE OF MARYLAND (Grimm, John) (Entered: 06/05/2018)
MINUTE ORDER (paperless) GRANTING National Housing Law Project and other housing, consumer, anti−homelessness, and anti−poverty advocates' 23 Motion by Housing, Consumer, Anti−Homelessness, and Anti−Poverty Advocates for Leave to File Brief of Amici Curiae. The Brief of Amici Curiae attached to the Motion, ECF No. 23−1, is hereby accepted. Signed by Chief Judge Beryl A. Howell on June 5, 2018. (lcbah2) (Entered: 06/05/2018)
29 AMICUS BRIEF by POLICYLINK re 19 MOTION for Preliminary Injunction MOTION for Summary Judgment (Attachments: # 1 Declaration of Kalima S. Rose, # 2 Rose Exhibit 1, # 3 Rose Exhibit 2, # 4 Rose Exhibit 3, # 5 Rose Exhibit 4, # 6 Rose Exhibit 5, # 7 Declaration of Stanley J. Brown)(Brown, Stanley) Modified on 6/11/2018 to edit event (zrdj). (Entered: 06/05/2018)
30 AMICUS BRIEF by NATIONAL HOUSING LAW PROJECT. (zrdj) (Entered: 06/06/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of State of New York's 24 Motion to Intervene in Support of Plaintiffs that (1) the parties file, by June 19, 2018, any opposition to State of New York's 24 Motion, and (2) State of New York file, by June 26, 2018, any reply in support of its 24 Motion. In the meantime, the portion of State of New York's 24 Motion requesting that its 26 Memorandum of Law in Support of Plaintiffs' Renewed Motion for a Preliminary Injunction and for Summary Judgment be considered as an amicus submission in support of the plaintiffs' 19 Motion is GRANTED. Accordingly, State of New York's 26 Memorandum of Law is hereby accepted and considered filed as of June 5, 2018. Signed by Chief Judge Beryl A. Howell on June 6, 2018. (lcbah2) (Entered: 06/06/2018)
Set/Reset Deadlines: Oppositions to the State of New York's 24 Motion, if any, due by 6/19/2018; State of New York's reply due by 6/26/2018. (tg) (Entered: 06/06/2018)
31 NOTICE of Corrected Declaration of Kalima K. Rose by POLICYLINK re 29 Notice (Other), 19 MOTION for Preliminary Injunction MOTION for Summary Judgment (Attachments: # 1 Rose Exhibit 1, # 2 Rose Exhibit 2, # 3 Rose Exhibit 3, # 4 Rose Exhibit 4, # 5 Rose Exhibit 5)(Brown, Stanley) (Entered: 06/06/2018)
32 NOTICE of Appearance by Adrienne Gittens on behalf of POLICYLINK (Gittens, Adrienne) (Entered: 06/07/2018)
33 Memorandum in opposition to re 19 MOTION for Preliminary Injunction MOTION for Summary Judgment filed by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Attachments: # 1 Declaration of Krista Mills, # 2 Exhibit Index, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13)(Halainen, Daniel) (Entered: 06/12/2018)
34 NOTICE (Joint) of Availability by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Halainen, Daniel) (Entered:

06/15/2018 06/15/2018 06/18/2018 06/19/2018 06/26/2018 06/26/2018 07/09/2018
07/09/2018 07/11/2018
07/11/2018 07/11/2018 07/12/2018 07/12/2018

06/14/2018)
MINUTE ORDER (paperless) SCHEDULING, upon consideration of the parties' 34 Joint Notice of Counsel's Availability, a hearing on the plaintiffs' 19 Motion for Preliminary Injunction and for Expedited Summary Judgment for July 18, 2018, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. Signed by Chief Judge Beryl A. Howell on June 15, 2018. (lcbah2) (Entered: 06/15/2018)
Set/Reset Hearings: Preliminary Injunction Hearing scheduled for 7/18/2018, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) Modified hearing date on 6/15/2018 (tg). (Entered: 06/15/2018)
MINUTE ORDER (paperless) DENYING AS MOOT, upon consideration of the plaintiffs' 19 Motion for a Preliminary Injunction and for Expedited Summary Judgment, the plaintiffs' 2 Motion for a Preliminary Injunction and for Expedited Summary Judgment. Signed by Chief Judge Beryl A. Howell on June 18, 2018. (lcbah2) (Entered: 06/18/2018)
35 Memorandum in opposition to re 24 MOTION to Intervene as Plaintiff filed by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Halainen, Daniel) (Entered: 06/19/2018)
36 REPLY to opposition to motion re 24 MOTION to Intervene as Plaintiff filed by STATE OF NEW YORK. (Colangelo, Matthew) (Entered: 06/26/2018)
37 REPLY to opposition to motion re 19 MOTION for Preliminary Injunction MOTION for Summary Judgment filed by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE. (Attachments: # 1 Declaration of Justin Steil, # 2 Declaration of Deborah Goldberg)(Samberg−Champion, Sasha) (Entered: 06/26/2018)
NOTICE that oral argument scheduled for July 18, 2018, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell will be held on both the plaintiffs' 19 Motion for Preliminary Injunction and for Expedited Summary Judgment, as well as the State of New York's 24 Motion to Intervene in Support of Plaintiffs. Signed by Chief Judge Beryl A. Howell on July 9, 2018. (lcbah2) Modified title on 7/9/2018 (tg). (Entered: 07/09/2018)
38 MOTION to Dismiss for Lack of Jurisdiction by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Halainen, Daniel) (Entered: 07/09/2018)
MINUTE ORDER (paperless) POSTPONING the hearing scheduled for July 18, 2018, and DIRECTING the parties, in light of the defendants' 38 Motion to Dismiss Plaintiffs' Amended Complaint, and to facilitate efficient review of all pending motions, to confer and advise the Court, by July 12, 2018, of dates between August 3 and 10, 2018, when counsel are available for a hearing to consider the plaintiffs' 19 Motion for a Preliminary Injunction and for Expedited Summary Judgment, the State of New York's 24 Motion to Intervene in Support of Plaintiffs, and the defendants' 38 Motion to Dismiss Plaintiffs' Amended Complaint. Signed by Chief Judge Beryl A. Howell on July 11, 2018. (lcbah2) (Entered: 07/11/2018)
Set/Reset Deadlines: Response to Order of the Court due by 7/12/2018. (tg) (Entered: 07/11/2018)
39 NOTICE (Joint) of Counsel's Availability by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT re Order,, (Halainen, Daniel) (Entered: 07/11/2018)
MINUTE ORDER (paperless) SCHEDULING, upon consideration of the parties' 39 Joint Notice of Counsel's Availability, a hearing on August 9, 2018, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell on all pending motions. Signed by Chief Judge Beryl A. Howell on July 12, 2018. (lcbah2) (Entered: 07/12/2018)
Set/Reset Hearings: Motions Hearing scheduled for 8/9/2018, at 10:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) (Entered: 07/12/2018)

07/23/2018 07/30/2018 08/01/2018 08/07/2018 08/09/2018
08/14/2018
08/16/2018 08/17/2018 08/17/2018 09/14/2018

40 Memorandum in opposition to re 38 MOTION to Dismiss for Lack of Jurisdiction filed by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE. (Samberg−Champion, Sasha) (Entered: 07/23/2018)
41 REPLY to opposition to motion re 38 MOTION to Dismiss for Lack of Jurisdiction filed by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Halainen, Daniel) (Entered: 07/30/2018)
42 NOTICE of Appearance by Lilia Isobel Toson on behalf of STATE OF NEW YORK (Toson, Lilia) (Entered: 08/01/2018)
43 NOTICE of Appearance by Jon M. Greenbaum on behalf of All Plaintiffs (Greenbaum, Jon) (Entered: 08/07/2018)
Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Motion Hearing held on 8/9/2018, regarding 19 MOTION for Preliminary Injunction; MOTION for Summary Judgment filed by TEXAS APPLESEED, NATIONAL FAIR HOUSING ALLIANCE, TEXAS LOW INCOME HOUSING INFORMATION SERVICE; 38 MOTION to Dismiss for Lack of Jurisdiction filed by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; 24 MOTION to Intervene as Plaintiff filed by STATE OF NEW YORK. The Court, after hearing argument, reserved its decision. (Court Reporter Elizabeth Saint−Loth.) (tg) (Entered: 08/09/2018)
44 TRANSCRIPT OF HEARING before Chief Judge Beryl A. Howell, held on 8−9−2018; Page Numbers: 1 − 106. Date of Issuance: 08−14−2018. Court Reporter/Transcriber: Elizabeth SaintLoth, Telephone number 202−354−3242, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter refer enced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 9/4/2018. Redacted Transcript Deadline set for 9/14/2018. Release of Transcript Restriction set for 11/12/2018.(Saint−Loth, Elizabeth) (Entered: 08/14/2018)
45 NOTICE of Post−Hearing Development by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Exhibit 1 − Advanced Notice of Proposed Rulemaking)(Samberg−Champion, Sasha) (Entered: 08/16/2018)
46 ORDER DENYING the plaintiffs' 19 Motion for Preliminary Injunction and for Expedited Summary Judgment, DENYING New York State's 24 Motion to Intervene in Support of the Plaintiffs, and GRANTING the defendants' 38 Motion to Dismiss Plaintiffs' Amended Complaint. See Order for further details. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on August 17, 2018. (lcbah4) (Entered: 08/17/2018)
47 MEMORANDUM OPINION regarding the plaintiffs' 19 Motion for Preliminary Injunction and for Expedited Summary Judgment, New York State's 24 Motion to Intervene in Support of Plaintiffs, and the defendants' 38 Motion to Dismiss Plaintiffs' Amended Complaint. Signed by Chief Judge Beryl A. Howell on August 17, 2018. (lcbah4) (Entered: 08/17/2018)
48 MOTION to Alter Judgment by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Proposed Second Amended Complaint, # 2 Proposed Second

09/28/2018 10/01/2018 10/02/2018
10/02/2018 10/09/2018 10/16/2018 03/11/2019 08/26/2019 08/26/2019

Amended Complaint Redline, # 3 Text of Proposed Order)(Samberg−Champion, Sasha). Added MOTION to Amend/Correct on 9/17/2018 (zrdj). (Entered: 09/14/2018)
49 Memorandum in opposition to re 48 MOTION to Alter Judgment MOTION to Amend/Correct filed by BEN CARSON, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Halainen, Daniel) (Entered: 09/28/2018)
50 Consent MOTION for Extension of Time to File Response/Reply as to 48 MOTION to Alter Judgment MOTION to Amend/Correct by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Samberg−Champion, Sasha) (Entered: 10/01/2018)
MINUTE ORDER (paperless) GRANTING the plaintiffs' 50 Consent Motion for Extension of Time to File Reply Brief in Further Support of Motion to Amend the Judgement and for Leave to Amend the Complaint, and DIRECTING the plaintiffs to file their reply by October 9, 2018. Signed by Chief Judge Beryl A. Howell on October 2, 2018. (lcbah2) (Entered: 10/02/2018)
Set/Reset Deadlines: Plaintiffs' reply in support of 48 motion due by 10/9/2018. (tg) (Entered: 10/02/2018)
51 REPLY to opposition to motion re 48 MOTION to Alter Judgment MOTION to Amend/Correct filed by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE. (Samberg−Champion, Sasha) (Entered: 10/09/2018)
52 NOTICE of Change of Address by Daniel J. Halainen (Halainen, Daniel) (Entered: 10/16/2018)
53 NOTICE OF SUPPLEMENTAL AUTHORITY by NATIONAL FAIR HOUSING ALLIANCE, TEXAS APPLESEED, TEXAS LOW INCOME HOUSING INFORMATION SERVICE (Attachments: # 1 Exhibit 1)(Samberg−Champion, Sasha) (Entered: 03/11/2019)
54 ORDER DENYING the 48 Plaintiffs' Motion to Amend the Judgment and for Leave to Amend the Complaint. See Order for further details. Signed by Chief Judge Beryl A. Howell on August 26, 2019. (lcbah1) (Entered: 08/26/2019)
55 MEMORANDUM OPINION regarding the 48 Plaintiffs' Motion to Amend the Judgment and for Leave to Amend the Complaint. Signed by Chief Judge Beryl A. Howell on August 26, 2019. (lcbah1) (Entered: 08/26/2019)

 
 Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 1 of 60

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE 1101 Vermont Ave NW, Suite 710 Washington, DC 20005,
TEXAS LOW INCOME HOUSING INFORMATION SERVICE
1800 W 6th Street Austin, TX 78703,
and
TEXAS APPLESEED 1609 Shoal Creek, Suite 201 Austin, TX 78701,
Plaintiffs,
v.
BEN CARSON, Secretary of the U.S. Department of Housing and Urban Development, in his official capacity,
451 7th Street SW, Washington, DC 20410,
and
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
451 7th Street SW, Washington, DC 20410,
Defendants.

Civ. Action No. _1_:1_8_-_c_v-01076 COMPLAINT

INTRODUCTION 1. Fifty years ago, Congress enacted the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. That Act is best known for barring a variety of forms of housing discrimination. Less attention has been paid to its requirement that the Secretary of the U.S. Department of Housing

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 2 of 60
and Urban Development (HUD) “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” that Act. Id. § 3608(e)(5). Although this Affirmatively Furthering Fair Housing (AFFH) requirement was of great importance to Congress in enacting the Act, for decades, HUD inadequately enforced it. The agency has permitted more than 1,200 grantees—mostly local and state government entities—to collectively accept billions of dollars in federal housing funds annually without requiring them to take meaningful steps to address racial segregation and other fair housing problems that have long plagued their communities.
2. Recognizing that the AFFH requirement had not been adequately enforced, HUD in 2015 promulgated through notice-and-comment rulemaking the AFFH Rule, a regulation requiring covered cities and counties around the country to take meaningful action to address longstanding segregation and otherwise effectuate the Fair Housing Act’s unrealized purposes. The AFFH Rule creates a rigorous process to ensure that recipients of federal housing funds identify local fair housing problems and then commit to taking concrete steps to correct them (under HUD’s supervision and with considerable community input), while giving those jurisdictions flexibility to respond to local conditions. At the Rule’s core is the requirement that jurisdictions prepare and submit for HUD review an Assessment of Fair Housing (AFH), a document that includes both the jurisdiction’s diagnosis of fair housing impediments and a plan to overcome them.
3. In January 2018, HUD abruptly announced that it was suspending for years the requirement that jurisdictions prepare AFHs and submit them for HUD review, effectively suspending the Rule itself. Plaintiffs National Fair Housing Alliance (NFHA), Texas Low Income Housing Information Service (Texas Housers), and Texas Appleseed bring this suit to
2

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 3 of 60
challenge HUD’s suspension of the AFFH Rule’s requirements as a violation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 500, et seq.
4. Before it promulgated the AFFH Rule, HUD engaged in little enforcement of this important provision of the Fair Housing Act, permitting its grantees to virtually ignore it. Even after a number of federal courts articulated the breadth of HUD’s obligations under the AFFH statutory provision, HUD required jurisdictions only to certify that, every few years, they analyzed barriers to fair housing in their communities, made gestures in the direction of solving them, and memorialized this analysis in their own files (never reviewed by HUD). As both HUD and the Government Accountability Office found, putting local jurisdictions on the honor system was ineffective. When pressed, many jurisdictions could not produce any documentation supporting their certifications; others had prepared documents that made no concrete promises or otherwise did not translate into action on the ground to address fair housing concerns. A False Claims Act suit against Westchester County, New York revealed that the County had certified compliance for years without ever assessing whether racial segregation was a problem, let alone committing to addressing the barriers to integration that were well known to exist in Westchester.
5. In response to these revelations, in 2009, HUD began an exhaustive, six-year process of crafting a more effective AFFH enforcement regime, culminating in the promulgation of the AFFH Rule in 2015. This Rule requires every covered jurisdiction to develop, submit for HUD review, and implement a planning document—called an Assessment of Fair Housing (AFH)—that includes concrete plans to address local fair housing issues. It requires jurisdictions to provide wide notice and solicit public comment about fair housing problems in various communities; to consult with fair housing groups and other interested entities; and to encourage
3

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 4 of 60
public comment on drafts of their AFHs. Jurisdictions must submit their AFHs for HUD review (along with their responses to comments from the public on those AFHs), and HUD must carefully review them, rejecting those AFHs not meeting specified requirements and requiring the submission of revised, compliant versions. In short, the AFFH Rule requires jurisdictions to take meaningful action to earn their federal housing funds by addressing local fair housing issues, while requiring HUD to monitor their compliance. It includes a schedule on which various jurisdictions are to submit their first AFHs, beginning in 2017 and 2018 for a small number of jurisdictions and then ramping up in 2019, by which time jurisdictions, HUD, and advocates will have gained greater familiarity with the process.
6. In the approximately two years since it went into effect, the AFFH Rule already has paid dividends. Many jurisdictions that have gone through the AFH drafting process have committed to concrete reforms that will improve the lives of their most vulnerable residents and create more integrated, inclusive communities. They have, for example, committed to provide help for residents of predominantly African-American neighborhoods who disproportionately face unwarranted evictions; make zoning processes more inclusive for people with disabilities; and create affordable rental units in high-opportunity neighborhoods. The jurisdictions have done so after taking input from their communities, accepting comments from fair housing organizations and others on their initial drafts, and undergoing review by HUD (which, sometimes, has required revisions). This robust process has led to a newfound commitment to take meaningful steps towards affirmatively furthering fair housing.
7. Even before becoming Secretary of HUD, Defendant Ben Carson criticized the AFFH Rule, which he compared to “failed socialist experiments” such as “mandated busing” of schoolchildren. After he became Secretary, HUD began cutting back implementation efforts. For
4

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 5 of 60
example, it reduced the technical assistance that it provided to help local jurisdictions craft effective and compliant AFHs.
8. On January 5, 2018, HUD abruptly announced, without prior notice or opportunity to comment, that it was suspending the AFFH Rule’s requirement that local governments complete and submit AFHs. It delayed that requirement until the next submission date for each grantee that occurs after October 31, 2020. Consequently, most recipients of federal housing funds will not have to complete or submit an AFH until at least 2024. In the announcement, HUD also stated that it would not review the AFHs that jurisdictions had already submitted and would not require revision and resubmission of rejected AFHs. Put simply, HUD abandoned the AFFH Rule and left local governments once more without regulatory supervision, guidance as to what constitutes compliance with the statutory AFFH requirement, or any required process to follow—a situation that had already proven to result in rampant noncompliance.
9. HUD had no authority to suspend local governments’ and its own regulatory duties in this manner. The AFFH Rule specifically provides that federal housing money may not continue to flow to jurisdictions without an AFH that HUD has approved. Yet HUD’s action permits exactly that result for most jurisdictions in the country. Meanwhile, by abandoning the AFH process, HUD has effectively excused jurisdictions and itself from a host of nondiscretionary duties related to that process, including meeting regulatory deadlines for submitting AFHs and respecting the procedural rights for various community members and groups that the AFH process protects. HUD may not refuse to follow (or authorize others not to follow) these clear requirements set forth in properly promulgated regulations without new notice-andcomment proceedings.
5

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 6 of 60
10. Additionally, based on the sparse reasoning HUD provided in its three-page notice, HUD’s action was arbitrary and capricious. HUD stated that it based its decision on the fact that it rejected 17 of the first 49 initially submitted AFHs. It said that complying with the AFFH Rule was proving to require (unspecified amounts of) work for both HUD and for local governments and that HUD could improve its technical assistance with the benefit of more time. HUD did not explain how these facts support excusing local governments from further compliance with the Rule, and they do not. The Rule is supposed to require that local governments and HUD spend time ensuring that concrete action is taken to affirmatively further fair housing rather than (as too often occurred in the past) paying only perfunctory attention to that statutory requirement. HUD is supposed to reject inadequate AFHs. Indeed, most of the jurisdictions whose AFHs were initially rejected soon submitted an improved AFH that HUD accepted—a fact HUD did not acknowledge in the notice. Thus, what HUD characterizes as a reason to suspend compliance with the Rule is, in fact, evidence that HUD’s enforcement of the Rule was working exactly as intended.
11. By returning to the dysfunctional, pre-AFFH Rule regime that HUD itself concluded did not work, HUD also is violating its statutory duty under the Fair Housing Act to ensure that federal funds are used to affirmatively further fair housing. Decades of experience have shown that, left to their own devices, local jurisdictions will simply pocket federal funds and do little to further fair housing objectives. When suspending the AFFH Rule’s requirements, HUD made no attempt to reconcile its action with its own prior finding in the administrative record that the Rule is necessary or to explain why history will not repeat itself.
12. HUD’s suspension of the AFFH Rule’s requirements is causing irreparable harm to Plaintiffs and to others in communities across the country. Plaintiffs, organizations with
6

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 7 of 60
purposes that include promoting fair housing, are already having their missions frustrated by HUD’s action and are having to divert scarce resources from other important activities to remedy the effects of HUD’s action.
13. Plaintiffs bring this action seeking preliminary and permanent injunctive relief, including a ruling that the January 2018 Notice constitutes unlawful agency action, an order that HUD rescind the January 2018 Notice and take all necessary steps to implement and enforce the AFFH Rule, and attorneys’ fees and costs and all other appropriate relief.
14. Fifty years after the passage of the Fair Housing Act, it is well past time that HUD carries out its statutory duty to ensure that jurisdictions that take federal housing funds fulfill their end of the bargain and affirmatively further fair housing. HUD failed for decades to require local jurisdictions to take meaningful action with respect to racially segregated communities and other obvious impediments to fair housing. It finally created a regulatory scheme to ensure that jurisdictions receiving federal funds effectuate the Act’s requirements, but now has unlawfully abandoned it. Judicial intervention is necessary to vindicate the rule of law and to bring fair housing to communities that have been deprived of it for too long.
PARTIES 15. The National Fair Housing Alliance (NFHA) is a national, nonprofit, public service organization incorporated under the laws of the Commonwealth of Virginia with its principal place of business in Washington, DC. NFHA is a nationwide alliance of private, nonprofit, fair housing organizations, including organizations in 28 states. NFHA’s mission is to promote residential integration and combat discrimination in housing based on race, national origin, disability, and other protected classes covered by federal, state, and local fair housing laws.
7

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 8 of 60
16. Plaintiff Texas Housers is a non-profit corporation with offices in Austin, Fort Worth, Hidalgo County, and Houston, Texas. It is the principal statewide advocacy group focused on expanding housing opportunities for low-income residents of Texas.
17. Plaintiff Texas Appleseed is a non-profit organization headquartered in Austin, Texas. Its mission is to promote social and economic justice for all Texans, including by ensuring that all Texas families can recover in the wake of natural disasters; that communities are rebuilt to be more resilient; and that all families have the opportunity to live in safe, decent neighborhoods with equal access to educational and economic opportunity.
18. Defendant U.S. Department of Housing and Urban Development (HUD) is an executive branch agency of the United States Government. It is charged with administering a variety of federally funded programs and funding sources. It also is responsible for ensuring that federal programs and activities relating to housing and urban development affirmatively further fair housing.
19. Defendant Ben Carson is the Secretary of HUD and is sued in his official capacity.
JURISDICTION AND VENUE 20. This Court has jurisdiction over this matter under 28 U.S.C. § 1331 and 5 U.S.C. § 702. 21. Venue is proper in this District under 28 U.S.C. § 1391(b) and 5 U.S.C. § 703 because the claims arose in the District, Defendants reside in this District, and a substantial part of the events giving rise to this action occurred in the District.
8

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 9 of 60
FACTUAL ALLEGATIONS A. Overview of the Fair Housing Act’s AFFH Provisions and Historical Context 22. HUD sends billions of dollars in federal funds each year to state and local jurisdictions, and those communities regularly certify both that they do not discriminate and that they are taking affirmative steps to further fair housing. But until recently, the agency has largely neglected to require those communities to do anything meaningful to fulfill those promises. HUD thus failed, until the promulgation of the AFFH Rule at issue in this case, to give appropriate force to a central part of the Fair Housing Act. That law does not simply bar overtly discriminatory actions, but also requires that federal funds are spent in ways that ameliorate (rather than exacerbate) long-standing patterns of residential segregation. 23. The AFFH requirement, like much else in the Fair Housing Act, arose from the findings of the National Advisory Committee on Civil Disorders (“Kerner Commission”). In 1967, President Johnson charged the Kerner Commission with studying the causes of recent urban unrest and recommending solutions. The Kerner Commission’s report, released in February 1968, found “[p]ervasive discrimination and segregation in employment, education and housing.” Report of the National Advisory Commission on Civil Disorders: Summary of Report, at 9 (1968), https://www.hsdl.org/?view&did=35837. It noted that federal money was being spent in ways that contributed to this segregation and recommended, among other things, that “[f]ederal housing programs must be given a new thrust aimed at overcoming the prevailing patterns of racial segregation.” Id. at 24. 24. When Congress enacted the Fair Housing Act weeks later, in the immediate aftermath of the assassination of Dr. Martin Luther King, Jr. and in response to the recommendations of the Kerner Commission, it sought to replace racially segregated
9

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 10 of 60
neighborhoods with “truly integrated and balanced living patterns.” Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (citing 114 Cong. Rec. 3422, statement of FHA sponsor Senator Walter Mondale). Consistent with this legislative purpose, in addition to barring discrimination in housing, the FHA also imposed on HUD the obligation to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter.” 42 U.S.C. § 3608(e)(5). Effective implementation of this provision is central to the “Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507, 2525-26 (2015).
25. As the Fair Housing Act’s legislative history and subsequent case law make clear, this duty to “affirmatively further fair housing” requires HUD to address segregation and other barriers to fair housing not just in its own policies and practices, but also in its oversight of its state and local jurisdictions and other entities that receive HUD grants. HUD’s duty under the Fair Housing Act requires it to “do more than simply refrain from discriminating,” NAACP v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987). Rather, HUD also must ensure that the Fair Housing Act powers affirmative movement towards integration in communities around the country, as Congress intended.
26. Since soon after the passage of the Fair Housing Act, federal courts have recognized that HUD must adopt processes to ensure that local governments administering federal housing programs abide by this congressional mandate. In Shannon v. U.S. Department of Housing and Urban Development, 436 F.2d 809, 821 (3rd Cir. 1970), the court concluded that HUD “must utilize some institutionalized method” for assessing local compliance. Similarly, in NAACP v. Secretary of Housing and Urban Development, the First Circuit held HUD liable
10

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 11 of 60
for its failure to use its authority to “assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases.” 817 F.2d at 155.
27. In response to these and other rulings, HUD adopted only modest measures that barely staunched the flow of federal funds to projects and entities that failed to further fair housing objectives. For more than two decades, the agency neglected to adopt any system for ensuring that fair housing concerns were taken seriously by the many cities, towns, and counties that collectively receive billions of dollars every year through the Community Development Block Grant (CDBG) and HOME Investment Partnership (HOME) programs, notwithstanding that the Fair Housing Act obligates all such grantees to affirmatively further fair housing and obligates HUD to ensure that they do.
28. In Fiscal Year 2017, HUD distributed $4.615 billion in federal grants devoted to housing block grant programs, accounting for about a tenth of HUD’s annual budget.1 In Fiscal Year 2018, that amount is slated to rise to almost $5.5 billion.2 By far the largest such program— accounting for about two-thirds of the total, and reaching every corner of the United States—is the CDBG program, which provides annual block grants to approximately 1,210 grantees, mostly units of state and local government. Id.; see also Community Development Block Grant Program – CDBG, U.S. Department of Housing & Urban Development (last accessed May 4, 2018), http://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs.
29. The CDBG program, which began with the Housing and Community Development Act of 1974, is one of HUD’s longest continuously running funding programs.
1 See Key Programs of the U.S. Department of Housing and Urban Development Budget, Novogradac & Company LLP (Mar. 22, 2018), https://www.novoco.com/atom/168201. 2 Peter Lawrence, Congress Agrees to Historic Funding for HUD in Fiscal Year 2018 Omnibus Spending Bill, Novogradac & Company LLP (Mar. 22, 2018), https://www.novoco.com/notesfrom-novogradac/congress-agrees-historic-funding-hud-fiscal-year-2018-omnibus-spending-bill
11

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 12 of 60
HUD awards CDBG grants to local governments to carry out a wide range of community development activities directed toward revitalizing neighborhoods, fostering economic development, and providing improved community facilities and services. Local governments eligible for CDBG funds, known as “entitlement communities,” include the principal cities of Metropolitan Statistical Areas (MSAs); other metropolitan cities with populations of at least 50,000; and qualified urban counties with populations of at least 200,000 (excluding the population of entitled cities).
30. Entitlement communities have discretion to develop their own programs and funding priorities, so long as they use CDBG funds consistent with certain statutory objectives, such as benefitting low- and moderate-income persons. 42 U.S.C. § 5304(b)(3). They may, for example, use CDBG funds to rehabilitate affordable housing; acquire land for new affordable housing development; improve infrastructure and public facilities in low- and moderate-income areas; or foster economic development that creates jobs for low- and moderate-income workers.
31. Each CDBG recipient must develop a document called a Consolidated Plan every three to five years and submit it to HUD for review and approval. See 24 C.F.R. §§ 570.302, 91.200-91.230. The Consolidated Plan sets out community development priorities and multiyear goals based on housing and community development needs, housing and economic market conditions, and available resources. CDBG recipients also submit to HUD each year Annual Action Plans, which summarize the specific actions and activities planned and the federal and non-federal resources that will be used. HUD uses these submissions to monitor communities’ use of CDBG funds to achieve the goals of the CDBG program.
32. The majority of local governments participating in the CDBG program are on a five-year cycle and renewed their Plans most recently in 2014 or 2015. Thus, they are due to
12

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 13 of 60
submit their next proposed Plans on various dates in 2019 or 2020. As discussed below, this timeframe also controls the timing of when the AFFH Rule requires these governments to, for the first time, submit to HUD for review and approval their Assessments of Fair Housing. The Rule thus specifically requires governments around the country in the coming months to engage in the robust process (including engagement of the community and local fair housing groups) that the AFFH Rule mandates.
33. CDBG recipients must certify that their grants will be conducted and administered in conformity with the Civil Rights Act of 1964 (which bars discrimination by recipients of federal funds on the basis of race, color, and national origin) and the Fair Housing Act. They also must certify that they will affirmatively further fair housing. 42 U.S.C. § 5304(b)(2); see also 24 C.F.R. § 570.601. But until the AFFH Rule’s promulgation, they were not required to submit to HUD any fair housing equivalent of the Consolidated Plan, i.e., a detailed explanation of planned activities and how they will conform to the AFFH requirement. Until the mid-1990s, HUD required its grantees merely to sign a bare certification that they complied with the 42 U.S.C. § 3608(e)(5).
34. In the mid-1990s, HUD finally promulgated regulations requiring each CDBG grantee to periodically conduct a written “Analysis of Impediments to Fair Housing Choice” (AI). Grantees were instructed to identify impediments to fair housing choice, take appropriate actions to overcome the effects of any such impediments, and maintain records reflecting the analyses and actions taken.
35. This system was virtually toothless. HUD did not require the grantees to submit their AIs to HUD for review or approval, and the AIs themselves had no required format or goals. HUD required grantees only to certify that they had conducted an AI and were taking
13

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 14 of 60
appropriate actions to overcome identified impediments. The agency did not require that the impediments identified be meaningful, did not offer guidance as to what would be “appropriate actions” to overcome these impediments, and did not adopt a system for compliance review. At best, AIs were paper exercises in the planning of fair housing policy that sat on municipal shelves and never translated into actual policy; at worst, meaningful assessments of fair housing problems and solutions never appeared, even on paper.
36. HUD conducted almost no oversight of this process. It did not review AIs and, except for publishing a non-binding Fair Housing Planning Guide in 1996, did not provide any technical assistance to grantees. It imposed no consequences when a grantee failed to produce or update an AI or to take the actions described in an AI. With HUD failing to meaningfully oversee its grantees in accordance with 42 U.S.C. § 3608, jurisdictions around the country routinely skirted their AI obligations and falsely certified their compliance with even these weak requirements.
37. In 2008, the National Commission on Fair Housing and Equal Opportunity—a body co-chaired by former HUD Secretaries Jack Kemp (a Republican) and Henry Cisneros (a Democrat)—reported: “The current federal system for ensuring fair housing compliance by state and local recipients of housing assistance has failed…. HUD requires no evidence that anything is actually being done as a condition of funding and it does not take adverse action if jurisdictions are directly involved in discriminatory actions or fail to affirmatively further fair housing.” National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008), available at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf. See also The Opportunity Agenda, Reforming HUD’s Regulations to Affirmatively Further Fair
14

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 15 of 60
Housing 7 (2010), available at https://opportunityagenda.org/sites/default/files/201703/2010.03ReformingHUDRegulations.pdf (stating that “[a] range of housing experts, civil rights groups, and former HUD officials have documented the inadequacy of the current AI process,” and detailing that testimony).
38. HUD’s countenancing of rampant non-compliance with the AFFH mandate came to a head in a False Claims Act case brought against Westchester County, New York. In that case, a whistleblower organization alleged that the County had defrauded the United States for years by continually certifying to HUD its compliance with the Fair Housing Act, even as it was deliberately concentrating affordable housing for families in a small number of heavily AfricanAmerican and Latino communities and distributing CDBG funds to overwhelmingly white suburbs that refused to allow the development of affordable housing. United States ex rel. AntiDiscrimination Ctr. of Metro N.Y., Inc., v. Westchester Cty., N.Y., 495 F. Supp. 2d 375 (S.D.N.Y. 2007); 668 F. Supp. 2d 548 (S.D.N.Y. 2009)
39. The Westchester case publicly exposed the failings of the AI process and the annual “certification” process. On summary judgment, the district court found that the County could produce no evidence that it even evaluated race-based impediments to fair housing, let alone did anything about them, while annually certifying compliance and accepting more than $50 million in federal housing funds during the relevant years. 668 F. Supp. 2d at 562.
40. Following the Westchester decisions, HUD took a closer look at what its grantees were doing in exchange for billions of dollars of federal funds every year. It engaged in a series of hearings, listening sessions, and internal reports, and it concluded that the AI process was not working.
15

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 16 of 60
41. For the first time, HUD asked participating jurisdictions to produce their AIs for review, and the results were unacceptable. More than a third of jurisdictions could not or would not produce any AI at all. Of those that did produce an AI, HUD rated 49 percent as “needs improvement” or “poor.” HUD found that only 20 percent of AIs committed jurisdictions to doing anything on a set timeframe. See U.S. Department of Housing and Urban Development, Office of Policy Development and Research, Analysis of Impediments Study (2009).
42. At the same time, the Government Accountability Office (GAO) was undertaking a detailed review of the AI process. It released its conclusions in a 2010 report to Congress, GAO-10-905, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (2010), available at https://www.gao.gov/assets/320/311065.pdf (GAO Report).
43. The GAO Report highlighted the weaknesses of the AI process and urged HUD to reform the system of fair housing oversight of HUD grantees. The report found that many jurisdictions, lacking any oversight or accountability, failed to make minimal efforts to comply even with the lax requirements of the AI system.
44. For example, the GAO found that 29 percent of jurisdictions had not completed an AI within the last five years, as recommended by HUD’s Fair Housing Planning Guide, while 11 percent had not done so within the last 10 years; for another 6 percent the date of completion could not be determined. Since the purpose of an AI was to be a planning document for a 5-year period, these jurisdictions effectively had no operative AI at all. Many jurisdictions could not produce a document labeled an AI, and others produced perfunctory documents—or, in one case, an e-mail.
16

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 17 of 60
45. Even for those jurisdictions that had operative AIs, the GAO found little evidence that the AIs made a practical difference. The GAO reviewed many of the AIs that grantees had completed (and used as the basis for certifying compliance with the Fair Housing Act) and found most of them contained little more than aspirational statements of vague goals. It found, for example, that most AIs reviewed “lack time frames for implementing identified recommendations,” making it impossible “to establish clear accountability.” GAO Report at 31. Moreover, because HUD never established clear rules as to the most basic substantive and procedural “requirements” it meant to impose—e.g., a timeline on which AIs should be completed, a process for completing them, the documents’ form and content—it was virtually impossible for HUD field offices to participate meaningfully in the process and ensure compliance even if they wanted to do so. Id. at 25.
46. By the time the GAO Report was issued, HUD had begun the process of formulating the AFFH Rule, and the GAO Report contained specific recommendations that the Rule largely incorporated. In particular, the GAO Report recommended that HUD establish standards and a common format for grantees to use in their planning documents; that grantees be required to include time frames for completing promised actions; and that grantees be required to submit these documents to HUD for comprehensive review on a regular basis. GAO Report at 32-33.
47. Based on the GAO Report, a vast record of rulemaking comments, and its own experience, HUD concluded that the AI process did not work. That was for myriad reasons; among other things, the AI drafting process “was not well integrated into the planning efforts for expenditure of funds made by HUD program participants,” and “HUD has not, in a systematic manner, offered to its program participants the data in HUD’s possession that may better help
17

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 18 of 60
them frame their fair housing analysis.” Final Rule: Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,275 (July 16, 2015) (AFFH Rule).
B. HUD AFFH Rulemaking 48. In 2009, in response to the growing and uncontroverted evidence that it was failing to ensure that federal housing dollars were spent in ways consistent with the AFFH obligation, HUD began formulating a better system. The regulation that HUD formally proposed in 2013 and promulgated as a final rule in 2015 was the product of a comprehensive process of outreach and study that informed the Rule’s eventual design. 80 Fed. Reg. 42,272; GAO Report at 29. 49. For example, in July 2009, HUD held a listening conference in which more than 600 people participated, both in person and remotely. As Assistant Secretary for Fair Housing John Trasviña testified to Congress the next year: “There, fair housing and civil rights groups, mayors, counties, and states all voiced their desire for HUD to amend its regulations to provide more concrete, specific information about how to develop a meaningful plan for affirmatively furthering fair housing.” John D. Trasviña, Assistant Secretary for Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development, Statement before the Subcommittee on Housing and Community Opportunity, Committee on Financial Services, U.S. House of Representatives, Hearing on H.R. 476 Housing Fairness Act of 2009 (Jan. 20, 2010), available at https://financialservices.house.gov/media/file/hearings/111/trasvina_-_hud.pdf. 50. After several years of gathering information, HUD published its proposed AFFH Rule on July 19, 2013. 78 Fed. Reg. 43,710 (July 19, 2013). It acknowledged that the problems revealed by the GAO, advocates, stakeholders, and program participants regarding the existing AI process required it to develop a new regime for AFFH enforcement. It determined that, under
18

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 19 of 60
the AI regime, federal funding recipients did “not sufficiently promote the effective use of limited public resources to affirmatively further fair housing.” 78 Fed. Reg. at 43,711.
51. HUD found that it was required to change course in order to carry out its statutory mission: “HUD and its grantees have a statutory duty to affirmatively further fair housing. This is not an administrative requirement that can be waived by HUD.” 80 Fed. Reg. at 42,348 (emphasis added).
52. HUD explained that it was not seeking to “mandate specific outcomes” for jurisdictions. 78 Fed. Reg. at 43,711. Rather, the AFFH Rule would structure decision-making processes in ways that ensured that local fair housing concerns would be heard, considered, and ultimately acted upon on a regular basis, with HUD review of the resulting product providing accountability. It would no longer be possible for jurisdictions to fail to produce an AI altogether, or to produce one that entirely ignored fair housing concerns (as Westchester’s had), without HUD detecting and remedying the violation.
53. To accomplish this, the AFFH Rule introduced the Assessment of Fair Housing, or AFH, as the core planning and oversight tool that integrates fair housing considerations into jurisdictions’ regular planning processes. HUD would review the adequacy of jurisdictions’ plans—but it would also assist them, in a variety of ways, rather than leaving them at sea as to how to comply with their obligation to affirmatively further fair housing. HUD committed to providing participants with national data and meaningful direction, including clear standards to follow and ample technical support. 78 Fed. Reg. at 43,714; see also 80 Fed. Reg. at 42,275 (reiterating these “key features” of the rule). HUD received 1,025 comments on the proposed rule.
19

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 20 of 60
54. HUD published its final AFFH Rule on July 16, 2015, with an effective date of August 17, 2015. The final rule addressed the public comments HUD had received and made changes in response, such as strengthening the requirement that participants identify “meaningful actions” to further fair housing. The final rule also provided for a staggered AFH submission schedule, to reduce the burden on HUD and program participants and give smaller participants extra time to prepare. It described HUD’s plans to issue guidance and technical assistance to assist with the regulation’s rollout.
55. The AFFH Rule provides for a consistent template (the AFH) that participants must complete, engage the public in reviewing, and submit to HUD for oversight at regular intervals. 24 C.F.R § 5.154(d). Participants must use the AFH to identify local fair housing issues and make concrete plans to address them—including measurable goals and metrics for measuring success—with public input and HUD review. While the initial AFHs are an exercise in goal-setting, subsequent AFHs must review progress toward these goals, such that the process provides a cycle of accountability. 24 C.F.R. § 5.154(d)(7).
56. Under the AFFH Rule, a funding recipient “must certify that it will take meaningful actions to further the goals identified in its AFH,” 24 C.F.R. § 91.225(a)(1), with “meaningful actions” defined as “significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing.” 24 C.F.R. § 5.152.
57. In conjunction with this “meaningful action” requirement, HUD for the first time provided a regulatory definition of what it means to affirmatively further fair housing. HUD defined “AFFH” as:
taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that
20

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 21 of 60
restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. 24 C.F.R. § 5.152. 58. Thus, the regulation guarantees performance of the statutory duty to affirmatively further fair housing by requiring meaningful steps towards achieving the Fair Housing Act’s ambitious goals. Those steps may vary widely from jurisdiction to jurisdiction, depending on local conditions and needs, but the constant is that every jurisdiction must take meaningful steps towards addressing its own barriers to fair housing. 59. Following its promulgation of the AFFH Rule, HUD issued an Assessment Tool (as required by the rule) to standardize the AFH process. The Assessment Tool was separately subject to public notice and comment under the Paperwork Reduction Act and is to be updated at regular intervals. In preparing their AFHs, local governments must use the Assessment Tool, which organizes all the required elements of an AFH into a template for simpler preparation and review. 24 CFR § 5.154(d). HUD determined that “program participants’ use of an Assessment Tool to create their AFH will help to ensure that AFHs are developed consistently and will facilitate objective, consistent reviews.” 80 Fed. Reg. at 42,311. 60. After several rounds of comments and revisions, the current version of the Assessment Tool went into effect in January 2017 and is slated to remain in effect until January 31, 2020. Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the Assessment Tool for Local Governments, 82 Fed. Reg. 4,388 (Jan. 13. 2017).
21

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 22 of 60
61. The Tool contains questions that local governments are required to answer by reference to, among other things, HUD-provided local data and maps. Local governments must provide a narrative description and analysis of local fair housing conditions (including by reference to the maps) and describe policies and practices that influence those conditions. They must provide an analysis of, among other things, residential racial segregation, racially or ethnically concentrated areas of poverty, disparities in access to opportunity (such as jobs or education), and the housing needs of persons with disabilities. 24 C.F.R. § 5.154(d)(2), (3).
62. To facilitate this detailed analysis, the Rule provides for HUD to publicly issue a variety of maps and provide data customized for each participant. Much of this information has been posted on HUD’s website. For each participating jurisdiction, a user can see patterns of residential segregation by race, national origin, and disability; the location of affordable housing; and details such as transit, job proximity, and school proficiency. These maps and data are available at https://egis.hud.gov/affht/.
63. The AFFH Rule provides that, in preparing the AFH, the funding recipient must provide for “meaningful community participation,” including through public hearings— publicized by “means designed to reach the broadest audience”—and through public review of an initial AFH draft. 24 C.F.R. § 5.158(a); see also 80 Fed Reg. at 42,300 (“public input is a fundamental and necessary component in the AFH process”). The jurisdiction also must consult with a number of designated community organizations, including but not limited to fair housing organizations, see 24 C.F.R. § 91.100(a), (e)(1), as well as “any organizations that have relevant knowledge or data to inform the AFH and that are sufficiently independent and representative to provide meaningful feedback to a jurisdiction on the AFH, the consolidated plan, and their implementation.” 24 C.F.R. § 91.100(e)(2). This consultation “must occur at various points in
22

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 23 of 60
the fair housing planning process,” including not only with respect to the drafting of the AFH, but also with respect to implementation of the AFH’s goals in the Consolidated Plan. 24 C.F.R. § 91.100(e)(3).
64. The completed AFH must include a summary of comments received, and explanations as to why any recommended changes to the draft AFH were not accepted. 24 C.F.R. § 5.154(d)(6).
65. Once a funding recipient has prepared and submitted an AFH, the Rule specifically contemplates and requires an iterative process between HUD and funding recipients. It calls on HUD not simply to pass judgment on AFHs, but to help funding recipients improve them and meet the AFFH Rule’s rigorous requirements.
66. The AFFH Rule requires HUD to review every Assessment of Fair Housing. HUD must “determine whether the program participant has met the requirements for providing its analysis, assessment, and goal setting,” 24 C.F.R § 5.162(a). The agency may not “accept an AFH if HUD finds that the AFH or a portion of the AFH is inconsistent with fair housing or civil rights requirements or is substantially incomplete,” 24 C.F.R. § 5.162(b). An AFH can be “substantially incomplete” for, among other things, failure to meet the required community participation and consultation requirements. 24 C.F.R. § 5.162(b)(1)(ii)(A). If HUD does not accept an Assessment, it must specify the reasons the Assessment has not been accepted and “provide guidance on how the AFH should be revised in order to be accepted.” 24 C.F.R. § 5.162(b)(2). If an Assessment fails to meet any required element, HUD must deem it incomplete and require revision, even if other elements are complete. 24 C.F.R. § 5.162(b)(1)(ii)(B).
23

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 24 of 60
67. The AFFH Rule establishes that each jurisdiction must complete and submit an AFH every three to five years—depending on that jurisdiction’s Consolidated Plan submission schedule—and do so in a way that integrates fair housing concerns into the Consolidated Plan that CDBG recipients already prepare on a similar schedule. 24 C.F.R. § 5.160.
68. Each CDBG recipient must complete and submit an AFH ahead of its Consolidated Plan schedule, so that financial and other commitments to implement the AFHs can be included in the next Consolidated Plan. Both the process of developing the Consolidated Plan and the Plan’s substance must then reflect various components of the AFH. See 24 C.F.R. § 5.160(a)(1)(i); 80 Fed. Reg. at 42,287; see also 24 C.F.R. § 91.105(e)(1)(i) (requiring that Consolidated Plan hearings include presentation of “proposed strategies and actions for affirmatively furthering fair housing consistent with the AFH”); 24 C.F.R. § 91.215(a)(5)(i) (CDBG participant must “[d]escribe how the priorities and specific objectives of the jurisdiction…will affirmatively further fair housing by setting forth strategies and actions consistent with the goals and other elements identified in an AFH”).
69. In order to ensure that HUD’s review could be rigorous, HUD considered and rejected a proposal that a funding recipient submit an AFH at the same time as its proposed Consolidated Plan. HUD reasoned that it was necessary to build in several months’ gap between the submissions to ensure that, prior to submission of the Consolidated Plan, “the affected communities would have already had the opportunity to review and comment on the AFH, HUD will have the opportunity to identify any deficiencies in the AFH, and the program participant will have the opportunity to correct any deficiencies, prior to incorporation of the AFH into the consolidated plan or PHA Plan, such that funding to program participants will not be delayed.” 80 Fed. Reg. at 42,311. Thus, HUD constructed a schedule that permits it to initially reject
24

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 25 of 60
AFHs—and then work with jurisdictions to improve them—as part of the routine process rather than as extraordinary event that seriously endangers federal funding.
70. The Consolidated Plan that follows must include fair housing elements that have been approved in the AFH. See 24 C.F.R. § 91.500(b); see also 80 Fed. Reg. at 42,299. An accepted AFH is now a requirement for HUD’s approval of the Consolidated Plan, 24 C.F.R. § 5.162(d), which in turn is a prerequisite for funding by the CDBG program. The AFFH Rule gives HUD only limited authority to excuse non-compliance with these requirements; if any jurisdiction fails to submit a Consolidated Plan that includes an approved AFH by August 16 of the federal fiscal year in question, that failure “will automatically result in the loss of the CDBG funds to which the jurisdiction would otherwise be entitled.” 24 C.F.R. § 5.162(d)(1) (emphasis added).
71. HUD set the dates for submission and review of AFHs on a staggered schedule, such that only a minority of jurisdictions must submit AFHs prior to 2019. The AFFH Rule requires jurisdictions to submit their first AFH by 270 calendar days before the beginning of their next CDBG program year. 24 C.F.R. § 5.160(a)(1). For most CDBG jurisdictions, this schedule requires that jurisdictions submit AFHs between 2019 and early October 2020. Additionally, HUD postponed until 2019 the date by which any jurisdiction receiving an award of $500,000 or less was required to make a submission. See 81 Fed. Reg. 73,129 (Oct. 24, 2016). Thus, HUD structured the schedule of submissions such that 2017 and 2018 would be used as learning years in which both HUD and early-submitting jurisdictions (none of which are small jurisdictions) gained expertise with the process.
72. The AFFH Rule makes concrete what had been a largely theoretical statutory obligation to affirmatively further fair housing for jurisdictions that accept federal housing funds.
25

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 26 of 60
Those jurisdictions now must make fair housing considerations—both identifying fair housing issues and making plans to overcome them—part of their core planning processes, and HUD will regularly check their work and help them improve upon it.
C. Secretary Carson’s Public Opposition to the AFFH Rule 73. Secretary Carson has been outspoken in opposing the AFFH Rule, before and after he was nominated to his position. 74. In an article published in 2015, Secretary Carson criticized the AFFH Rule at length, equating it to “mandatory busing” of schoolchildren. Ben S. Carson, Experimenting With Failed Socialism Again, Wash. Times, July 23, 2015, available at https://www.washingtontimes.com/news/2015/jul/23/ben-carson-obamas-housing-rules-try-toaccomplish-/. He condemned both the AFFH Rule and a Supreme Court decision recognizing that the Fair Housing Act bars disparate impact discrimination, stating that “based on the history of failed socialist experiments in this country, entrusting the government to get it right can prove downright dangerous.” Id. 75. In his confirmation hearing, Secretary Carson reiterated his hostility to the AFFH Rule. In response to a question from Senator Sherrod Brown regarding his 2015 article, Secretary Carson said: As you probably know, that Act says that we want people who are receiving HUD grants to look around and see if they find anything that looks like discrimination and then we want them to come up with a solution on how to solve the problem. They’re not responding to people saying that there’s a problem, they’re saying go and look for a problem and then give us a solution. And what I believe to be the case is we have people sitting around their desks in Washington D.C. deciding on how things should be done – you know—telling mayors and commissioners that
26

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 27 of 60
you need to build this place right here and you need to put these kinds of people at it.3 76. In an interview after being confirmed, Secretary Carson said in response to a question about these prior statements that he “believe[s] in fair housing” but not in “extra manipulation and cost.” Accordingly, he said about the AFFH Rule: “So we just have to reinterpret it, that’s all.”4 77. Since Secretary Carson took office, HUD has provided no new guidance and has stopped providing the same level of technical support that it previously offered to jurisdictions preparing AFHs. D. HUD’s January 5, 2018 Suspension of the AFFH Rule 78. Without providing advance notice or opportunity for comment, on January 5, 2018, HUD published a three-page notice in the Federal Register abruptly suspending the key requirements of the AFFH Rule. See Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83 Fed. Reg. 683 (Jan. 5, 2018) (attached as Exhibit A). 79. HUD’s notice announced that no local government would be required to submit AFHs until the next scheduled submission date that falls after October 31, 2020, nor would HUD review AFHs submitted to it until after that date. 83 Fed. Reg. at 684.
3 Housing and Urban Development Secretary Confirmation Hearing Before the Senate Banking, Housing and Urban Affairs Comm. (Jan. 12, 2017) (statement of Ben S. Carson, Nominee, Housing and Urban Development Secretary), available at https://www.cspan.org/video/?421258-1/hud-secretary-nominee-ben-carson-testifies-confirmationhearing&start=2552. 4 Joseph Lawler & Al Weaver, Ben Carson: HUD Will “Reinterpret” Obama Housing Discrimination Rule, Wash. Examiner, July 20, 2017, available at https://www.washingtonexaminer.com/ben-carson-hud-will-reinterpret-obama-housingdiscrimination-rule
27

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 28 of 60
80. This action effectively postpones implementation of the AFFH Rule until 2024 or 2025 for most local jurisdictions that receive CDBG funding. That is because most of those governments are due to submit an AFH for HUD review between 2019 and early October 2020. Now they will not need to (and, indeed, may not) submit an AFH and receive HUD review until their next scheduled submission that falls after October 31, 2020, i.e., between April 2024 and January 2025.
81. HUD stated that this delay applies to both program participants whose AFHs were coming due and participants to which HUD had granted extensions of time to submit previously due AFHs. Additionally, HUD stated that it would immediately discontinue its review of AFHs, including already-submitted AFHs. Only the small number of participants whose AFHs HUD had already approved would be required to comply with the actions and goals promised in them.
82. HUD stated that this suspension of the AFFH Rule’s requirements was necessary because, “[b]ased on initial reviews,” the agency concluded that “program participants need additional time and technical assistance to adjust to the new AFFH process and complete AFH submissions that can be accepted by HUD.” 83 Fed. Reg. at 684.
83. HUD stated that many program participants were struggling to meet the requirements of the AFFH rule, “such as developing goals that could be reasonably expected to result in meaningful actions[.]” 83 Fed. Reg. at 684-85. Further, HUD said, “program participants struggled to develop metrics and milestones that would measure their progress as they affirmatively further[] fair housing.” Id. at 685. The result of “program participants’ frequent misunderstanding of how to set clear goals, metrics, and milestones,” HUD stated, was often “non-accepted AFHs.” Id.
28

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 29 of 60
84. HUD stated that it drew these conclusions from the first 49 proposed AFHs it reviewed. 83 Fed. Reg. at 684. It stated that 17 of these submitted AFHs (or 35 percent) were not initially accepted. Id. HUD did not contend that this was a surprising rate of non-acceptance for the first batch of AFHs reviewed.
85. HUD stated that “additional technical assistance may result in program participants better understanding their obligations under the AFFH Rule.” 83 Fed. Reg. at 685. It further stated that “enhancing its technical assistance” would result in fewer resources expended by program participants “because they are more likely to submit an initial AFH that can be accepted by HUD.” Id. HUD did not explain how it would enhance its technical assistance capabilities, nor did it acknowledge that it had failed to deploy all the technical assistance resources already available to it. Nor, finally, did it explain why enhancing its technical assistance required delaying the submission of the next round of AFHs at all, let alone for years. It did say, cryptically, that it did not accept one regional AFH that was submitted collaboratively by 19 program participants and that “improving technical assistance for collaborative AFHs will enable collaborations to more efficiently use their resources to address fair housing issues that cross jurisdictional boundaries.” Id. Once again, it did not explain how it intended to improve technical assistance for collaboratively prepared AFHs, nor why such improvements required effectively suspending the Rule for years.
86. HUD also stated that it could use the additional time to improve the Assessment Tool. 83 Fed. Reg. at 685. It did not explicitly claim that this point justified or required its suspension of the Rule.
87. While the AFH process is suspended, HUD told local governments to resort to the failed AI process, i.e., prepare an Analysis of Impediments without HUD assistance, “take
29

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 30 of 60
appropriate actions,” and then “maintain records reflecting the analysis and actions,” without submitting anything for HUD review. 83 Fed. Reg. at 685. HUD did not explain why it now believed this process would be effective; indeed, it did not even acknowledge that the AFFH Rule’s basic premise was that the AI process had failed to ensure that federal funds were used to affirmatively further fair housing, as the Fair Housing Act requires. See, e.g., 78 Fed. Reg. at 43,711 (finding that, under the AI regime, federal funding recipients did “not sufficiently promote the effective use of limited public resources to affirmatively further fair housing”).
88. HUD told local governments they should “continue to affirmatively further fair housing as required by the Fair Housing Act. 42 U.S.C. 3608.” 83 Fed. Reg. at 685. It did not go beyond this bare statutory citation—not even to instruct local governments to follow HUD’s implementing regulations (such as the definition of the AFFH term now found at 24 C.F.R. § 5.152) or its own guidance. Nor did it tell local governments to carry out the critical community participation and consultation provisions of the AFFH Rule, 24 C.F.R. §§ 5.158 and 5.162(b)(1)(ii)(A), which require substantially more of local governments than the previous HUD regulations governing the production of an AI. Because those regulatory requirements are procedurally linked to the AFH process—which HUD now has suspended—they are effectively suspended as well. HUD said nothing to suggest that local governments must comply with them, nor is it obvious how they apply when it is no longer mandatory that funding recipients prepare an AFH for HUD review.
89. Thus, HUD has instructed local governments to revert to the same pre-AFFH Rule Analysis of Impediments process that HUD itself has determined is ineffective—and involves no assistance or enforcement by HUD. It has abdicated oversight and enforcement of the AFFH statutory requirement for years to come.
30

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 31 of 60
90. HUD did not identify any legal authority permitting it to suspend the requirement that covered jurisdictions submit AFHs on a timeline corresponding with their next Consolidated Plan submission, notwithstanding that the required timeframe for first AFH submissions is in the text of the regulation.
91. HUD did not identify any legal authority permitting it not to review already submitted AFHs, notwithstanding that the AFFH Rule requires HUD to undertake such reviews and make determinations on each submitted AFH. See 24 C.F.R. § 5.162(a).
92. HUD did not identify any legal authority permitting it to distribute federal housing funds based solely on a certification that a jurisdiction complied with the pre-AFFH Rule requirements, notwithstanding that the AFFH Rule bars HUD from approving a Consolidated Plan in the absence of an accepted AFH. See 24 C.F.R. § 5.162(d) (“If a program participant does not have an accepted AFH, HUD will disapprove a consolidated plan.”).
93. Although it failed to take comments before acting, HUD said it would accept comments on its action until March 6, 2018. 83 Fed. Reg. at 685. Almost all of the comments HUD received criticized its action as unwarranted and unlawful. Nonetheless, HUD has given no indication that it will rescind its suspension of the AFFH Rule.
94. Since issuing its notice suspending the AFFH Rule’s requirements, purportedly to improve technical assistance, HUD has not taken any public actions aimed at improving its technical assistance.
E. HUD’s Experience with the First Set of AFH Submissions Provided No Reason to Suspend the Rule
95. Not only did HUD thus lack legal authority to suspend the AFFH Rule’s core requirements, the evidence before it did not support suspending the Rule at all, let alone for years. That some municipalities failed in their initial submissions to meet the Rule’s
31

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 32 of 60
requirements reaffirms, rather than calls into question, why HUD thought the Rule necessary in the first place: left to their own devices, many municipalities will fail to take their obligations under the Fair Housing Act seriously. That they continue to need HUD enforcement and oversight is not a reason to remove such oversight. Moreover, to the extent that HUD’s current technical assistance is inadequate, that is because HUD under Secretary Carson has cut back on its technical assistance offerings to local jurisdictions and has stopped issuing technical guidance on new developments to its own staff. It is not more time that HUD needs to offer enhanced technical assistance—it is the willingness to take the task seriously.
96. Even before promulgating the AFFH Rule, HUD began taking steps to prepare jurisdictions for complying with it. Since at least Fiscal Year 2012, Congress has appropriated significant funds for HUD’s technical assistance efforts, and much of that money has been devoted to the implementation of the Affirmatively Furthering Fair Housing Rule.
97. HUD and its agents have designed regional, multi-day trainings delivered around the country for participating jurisdictions; drafted guidance on how to use the AFH tool; and answered questions submitted through the HUD Exchange website. At one point, HUD’s agents even provided direct, on-site assistance to multiple program participants. HUD staff prepared and published the AFFH Rule Guidebook, while HUD staff and the agency’s technical assistance contractors answered questions from program participants by phone or e-mail.
98. All of this changed in 2017. Despite funding appropriated by Congress for technical assistance and the availability of a highly trained team of technical assistance providers, HUD has willfully and systematically underutilized technical assistance resources available to it.
32

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 33 of 60
99. For example, HUD no longer permitted its contractors or staff to engage in on-site technical assistance. Additionally, HUD failed to publish further guidance and ceased to monitor and respond to questions about the AFFH Rule submitted through the HUD Exchange Ask-AQuestion portal.
100. In large part due to HUD’s own failure to assist them—as well as suspicion that HUD no longer has the will to enforce the AFFH Rule vigorously—some jurisdictions submitted inadequate AFHs that properly required rejection. Where HUD has initially rejected an AFH, it has often done so because the jurisdiction failed to include even the basic components of a functional AFH. For example, municipalities whose AFHs were rejected ignored segregation in an entire section of their jurisdiction (notwithstanding maps that should have made such segregation obvious); failed to include any metrics or milestones to measure improvements in fair housing; failed to analyze the data HUD had provided to the jurisdiction; and/or failed to consider housing barriers for key constituents, such as persons residing in public housing.
101. HUD’s description of the record before it when suspending the AFFH Rule’s requirements also is incomplete in a way that makes its analysis unreasonable. HUD focuses only on the additional work that HUD and local jurisdictions are required to do to implement the AFFH Rule and entirely ignores the Rule’s already evident benefits. Despite HUD’s less than robust efforts to make the Rule work, the AFH submissions it received before suspending the Rule demonstrate that, on balance, the Rule was vastly improving jurisdictions’ commitment to fair housing, which in turn was providing tangible benefits for individuals.
102. As HUD acknowledged, most of the 49 submissions it received cleared the high bar the AFFH Rule sets even in their first submission. Thus, 32 of the 49 jurisdictions were immediately on the path to finally meeting the Fair Housing Act’s requirements in exchange for
33

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 34 of 60
the federal money they receive. HUD did not contend the Rule did not work for those jurisdictions, nor would such a contention be reasonable.
103. With respect to the 17 jurisdictions whose submissions it initially rejected, HUD paints a misleading picture by failing to acknowledge or consider relevant facts. Most of those 17 submissions that HUD initially rejected were improved through a collaborative process between HUD and the jurisdictions, and all but a few of them have already been accepted after revision. One of those that has not—by the Hidalgo County Regional Consortium (Hidalgo County) in Texas—is described further in the next section regarding harm to Plaintiffs. That submission was deeply flawed and was properly rejected; HUD’s suspension of the AFFH Rule ended the process that would have improved it.
104. Accordingly, what HUD characterizes as a failure—that 17 submissions were initially rejected—is in fact a success, because those jurisdictions were properly required to improve their inadequate AFHs. This is precisely how the Rule was written to work: HUD review, individualized feedback, and AFH revision by participants are all explicitly contemplated. See 24 CFR §§ 5.162(a) and (b). After decades in which participants had operated without oversight, it was to be expected that many participants would need assistance to meet a new level of accountability. And by and large they have, eventually, met the challenge.
105. One study of the 28 AFHs submitted to HUD between October 2016 and July 2017 (that is, the majority of the 49 on which HUD based its decision) compared those submissions to the AIs previously prepared by the same participants, and found striking improvements. Whereas the AIs contained nebulous goals, the AFHs contained more concrete ones. See Justin Steil & Nicholas Kelly, Survival of the Fairest? An Analysis of Affirmatively Furthering Fair Housing Compliance (Sep. 15, 2017) (working paper for The Future of Housing
34

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 35 of 60
Policy in the U.S. Conference, University of Pennsylvania), available at http://web.mit.edu/afs/athena.mit.edu/org/f/fairhousing/research/Steil_Kelly_Survival_of_Fairest .pdf. In the past, most municipalities did not set a single goal that included a quantifiable metric of success or concrete policy to be enacted. Now, almost all did.5
106. For example, Paramount, California committed to making (by explicit deadlines) specific amendments to its zoning ordinance to make its housing more inclusive, such as allowing group homes for people with disabilities in residential zones. New Orleans, Louisiana promised to increase homeownership by Section 8 voucher recipients by 10 percent annually. Chester County, Pennsylvania committed to creating 200 new affordable rental units in high opportunity neighborhoods across the county by 2021. El Paso County, Colorado similarly promised to assist in the development of 100 publicly supported affordable housing units in areas of opportunity. All of these commitments can be monitored and their success measured.
107. A representative success story is the AFH which Philadelphia completed and HUD approved. In accordance with the AFFH Rule’s community participation requirements, Philadelphia conducted a survey in both English and Spanish (receiving more than 5,000 responses, including more than 900 from residents of high-poverty neighborhoods), conducted focus groups around the city, took comments on an initial (weak) draft AFH, and otherwise made far greater effort than it ever had to learn about barriers to fair housing in its own communities. The substantive results were striking. For example, the city’s final AFH identified widespread evictions in neighborhoods where predominantly racial minorities live as a substantial barrier to fair housing. It committed the city to taking concrete steps in response, including creating an
5 Submitted AFHs can be viewed at: https://furtheringfairhousing.mit.edu/assessment-fairhousing-city.
35

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 36 of 60
“eviction prevention project” pursuant to which lawyers and advocates will represent those facing unjust eviction.
108. These outcomes are exactly the sort of concrete, locally driven commitments to fair housing that were rarely made under the AI regime and that the AFFH Rule was intended to promote, assist, and require. And they were made with greater community input, thanks to the AFFH Rule’s requirements in that regard.
109. One study, which was submitted to HUD in response to its call for comments on the suspension of the Rule, found that the AFH process in virtually all cases provided a greater level of public engagement than the AI process had. That meant, for example, more public meetings and notice provided in more places and media (as well as in more languages) to ensure that more members of the public were aware of the process and had the opportunity to participate. It also meant greater acknowledgment of the public’s input in the AFH itself. For example, Nashville, Tennessee’s AFH spent 107 pages detailing public comments received and its response to them; it had devoted nine pages of its AI to such topics. See Furman Center Comment Letter, available at https://www.regulations.gov/document?D=HUD-2018-0001-0036 (last visited Apr. 26, 2018).
110. As HUD stated in the Final Rule, the extent to which the AFFH Rule increases burden on program participants was expected to depend on how seriously those jurisdictions took their AFFH obligations all along. See 80 Fed. Reg. at 42,273. HUD fully expected that those jurisdictions that had flouted their obligations for years would face some increased burden when finally made to comply. It estimated that participating jurisdictions overall would incur compliance costs of about $25 million, while HUD itself would incur about $9 million in
36

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 37 of 60
resource costs. Id. In suspending the Rule, HUD did not contend that costs to either participants or HUD were greater than HUD had expected.
F. HUD’s Action Will Harm Plaintiffs If Not Enjoined 111. Defendants’ unlawful actions have caused Plaintiffs to suffer irreparable and ongoing injury for which there is no adequate remedy at law. These unlawful actions will continue to cause injury to Plaintiffs unless and until injunctive relief is granted. Defendants’ suspension of the AFFH Rule’s core requirements is frustrating Plaintiffs’ missions. In response, Texas Appleseed and Texas Housers (Texas Plaintiffs) have had to divert resources they were planning to devote to other activities critical to their missions to remedying the effects of Defendants’ action in municipalities around Texas. NFHA, meanwhile, has had to divert resources to assisting its members around the country in similar efforts to combat the effects of Defendants’ action.
1. Harm to Texas Plaintiffs 112. Both Texas Plaintiffs contributed to the development of the AFFH Rule (including by submitting comments) and have devoted considerable resources to ensuring that it is implemented properly in Texas. They have relied heavily on the AFH Rule’s requirements, which ensure that local jurisdictions take fair housing seriously rather than continuing to perpetuate the patterns of residential racial segregation and discriminatory use of federal funds that historically have plagued much of Texas. 113. For example, since 2008, the Texas Plaintiffs have devoted substantial time and resources (including filing multiple complaints with HUD) to requiring state and local governments to spend federal disaster relief money in ways that are non-discriminatory and affirmatively further fair housing. They have played a large role in the creation of an AI for the
37

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 38 of 60
State of Texas that requires specific steps to address disaster relief discrimination, including training for local grantees and a commitment to spend disaster recovery money in certain ways. They also have developed, with the State of Texas, a form for local jurisdictions to use to assess and report their compliance with AFFH requirements with respect to the use of disaster relief money and have closely monitored local jurisdictions’ compliance.
114. Since the AFFH Rule’s promulgation, the Texas Plaintiffs have devoted resources to the development of effective AFHs in a number of communities and regions. In particular, they have provided substantial input into the development of municipal AFHs in Fort Worth, Corpus Christi, and League City. They also have helped organize community members and assisted in the development of a regional AFH in the Hidalgo County region, covering 19 jurisdictions and housing authorities. They have spent thousands of dollars in staff time and resources in various Texas communities, providing public education to municipalities, planners, and attorneys. These efforts have begun to pay dividends in large part because of specific protections that the AFFH Rule provides. HUD’s suspension of the Rule’s requirements, if not enjoined, will frustrate Texas Plaintiffs’ efforts to ensure fair housing in the communities they serve.
115. The efforts of the Texas Plaintiffs, combined with the AFFH Rule’s protections, have substantially increased the degree of public participation in each community’s AFH process. The AFFH Rule’s requirements have amplified the ability of individuals, grassroots groups, and advocacy groups like Texas Plaintiffs to identify, publicly articulate, and force jurisdictions to grapple with local fair housing problems that previously went unaddressed. If HUD’s suspension of the Rule’s requirements is not enjoined, Texas Plaintiffs will be required to repeat and redouble their efforts to ensure fair housing in the communities they serve, because
38

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 39 of 60
there will be no AFH process in which such local input must be considered, nor any process by which HUD will review the AFH and determine whether it complies with the AFFH Rule’s procedural and substantive requirements.
116. As one illustration, the Texas Plaintiffs devoted substantial resources to ensuring that, when Hidalgo County prepared its AFH (as one of the first AFH submitters in Texas), community participation was more robust. Among other things, they prepared a lengthy comment letter advising County officials to provide multiple forums in which interested residents could participate, ensured that materials were prepared in Spanish, and saw to it that notice and opportunity to participate was given to the predominantly Latino population living in “colonias,” i.e., plots of land outside incorporated cities that often lack infrastructure such as water, sewage, electricity, and paved roads. Hidalgo County historically has ignored the needs of the people living there (even as it takes federal funds and certifies AFFH compliance), but the AFFH Rule’s requirements provide a mechanism for the Texas Plaintiffs to force the county to consider those needs.
117. The AFH that Hidalgo County submitted to HUD in 2017 nonetheless was deficient. It failed, among other things, to grapple with the publicly stated needs of colonias residents or to engage with the comments Texas Plaintiffs and others provided. Texas Plaintiffs sent HUD a letter alerting the agency to these problems, and on December 12, 2017, HUD rejected the submitted AFH, requiring the County to submit a revised one by March 12, 2018. Hidalgo County’s AFH thus is one of the 17 initially rejected submissions upon which HUD relies as a reason to suspend the Rule.
118. Relying on the AFFH Rule’s requirements, Texas Plaintiffs spent thousands of dollars in staff time, materials, and other resources to create the conditions under which fair
39

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 40 of 60
housing finally could come to Hidalgo County. Just when those efforts seemed to be bearing fruit—with HUD rejecting the County’s initial submission and requiring it to prepare a revised submission that reflects an effort to, finally, take its AFFH obligations seriously—HUD’s action endangers this progress. Now HUD will not require Hidalgo County to make a compliant submission, although it already has found that Hidalgo County has not made a sufficient commitment to affirmatively further fair housing.
119. HUD’s abdication of its statutory responsibility, if not enjoined, will require Texas Housers and Texas Appleseed to expend considerable additional resources to bring fair housing to Hidalgo County without HUD’s assistance and without the procedural rights the AFFH Rule provides them. The County, no longer needing HUD approval, now has no incentive to meaningfully improve its rejected AFH or otherwise address the housing needs that have plagued many of its residents for too long. That means that Texas Plaintiffs will have to expend considerable resources making fair housing a reality in Hidalgo County that they would not have to expend if HUD were enforcing the requirements of the AFFH Rule.
120. Similarly, in the City of Corpus Christi, which also had an AFH due on January 4, 2018, the Texas Plaintiffs consulted extensively with local advocates, encouraged HUD to offer the City an extension of time to incorporate changes based on the devastating impact of Hurricane Harvey on the City and surrounding region, and submitted comments on the AFH. The City declined the extension and submitted an AFH that barely acknowledged massive housing loss, extended displacement, and infrastructure impacts caused by one of the costliest disasters in U.S. history. Because of HUD’s unlawful action, HUD will not review that defective AFH, leaving the City with no obligation to improve it and no incentive otherwise to make concrete plans to address fair housing concerns in disaster relief. The Texas Plaintiffs therefore will have
40

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 41 of 60
to expend considerable resources trying to make fair housing a reality in Corpus Christi, including by monitoring the use of hundreds of millions of dollars in federal disaster relief money that will be flowing to the region. These activities will require considerably more effort and expenditure of resources than if HUD had not suspended the AFFH Rule.
121. Meanwhile, with Fort Worth’s AFH coming due, Texas Housers hired an employee, set up an office in that city, engaged in discussion with community leaders and municipal employees, and otherwise devoted considerable resources to laying the groundwork for the development and then implementation of an AFH that would make fair housing in Fort Worth, finally, a reality. Just as it was nearly time for Fort Worth to submit a draft to HUD, HUD announced that it would no longer accept or review AFHs. As a consequence, Fort Worth decided not to complete an AFH. Rather, it will rely on the former AI process to support its claim that it has met its AFFH obligations. Texas Housers thus will have to devote still more resources in Fort Worth to sustain or recreate a climate and process in which community members and city officials are able to air their significant concerns about segregation and unequal access to opportunity for families of color. It also will have to spend more resources, in the absence of HUD review, monitoring Fort Worth’s use of federal funds to ensure compliance with federal law. Those are resources it would not have to expend if HUD continued to enforce the AFFH Rule.
122. The Texas Plaintiffs will continue to work to promote fair housing in those two municipalities and elsewhere in Texas, but they have lost the benefit of the AFFH Rule’s requirements, pursuant to which municipalities must consult with them at regular intervals, must review and engage with their comments and concerns, must reach out to community members, and more. They also have lost the benefit of HUD review of submitted AFHs (and the Texas
41

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 42 of 60
Plaintiffs’ comments on them), along with the prospect of HUD non-acceptance of AFHs that inadequately assess fair housing conditions and/or fail to commit to concrete solutions. These consequences of HUD’s action frustrate Texas Plaintiffs’ mission of achieving fair housing for the communities they serve.
123. Texas Plaintiffs have taken or will take many specific actions to counter the effects of HUD’s suspension of the AFH submission requirement and convince local government program participants to nonetheless take their fair housing obligations seriously. Such actions include:
• Producing a video to educate the public (including affected grantees) about the impact of the Rule and grantees’ continuing obligation to affirmatively further fair housing notwithstanding HUD’s action;
• Developing a fact sheet for advocates statewide on the effect of HUD’s action; • Responding to continuing requests for information and resources; • Engaging in ongoing public education efforts, including community forums on fair
housing in Amarillo and Fort Worth; meeting with Hidalgo County; writing advocacy pieces; and advising attorneys, community groups, and consultants working on nowsuspended AFHs on the impact of HUD’s suspension of the AFH submission requirement on ongoing fair housing obligations; and • Writing letters to the 65 most immediately impacted jurisdictions regarding their continued obligation to affirmatively further fair housing, an in-process action which by itself will take about 120 hours of staff time. 124. The Texas Plaintiffs have had to divert resources in many other ways to ensure that the interest in fair housing that the AFFH Rule created is not lost while the Rule’s core
42

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 43 of 60
requirements are suspended. For example, Texas Housers’ staff continues to meet on a regular basis with community groups in Hidalgo County, to keep them engaged in long-term efforts to secure additional housing and community development resources for the colonias and otherwise combat discrimination on the basis of national origin. Texas Housers also continues to invest resources in educating grassroots groups in Hidalgo County about their rights to equitable flood drainage, the need to reform subdivision rules, and the rights of non-English speakers to receive information about public programs in a language and format they can understand. Without the focused AFH process that provides a specific forum for articulating these grassroots concerns at specific times—and requires the County to listen to and address them—these efforts are much more inefficient, requiring far more of Texas Housers’ time and achieving less tangible results.
125. HUD’s unlawful suspension of the AFH process has greatly undermined Texas Plaintiffs’ ability to accomplish their missions and is making them divert resources to activities they would not otherwise have engaged in, just to get to an inferior result. Because of HUD’s action, Texas Plaintiffs have diverted their resources and will continue to divert their resources to educating funding recipients and community members that jurisdictions still must comply with the AFFH statutory requirements notwithstanding HUD’s refusal to enforce them. They consequently have had to cut back on important activities they would be pursuing if not for HUD’s suspension of the AFFH Rule’s requirements.
126. For example, Texas Plaintiffs have had to substantially curtail their grassroots outreach, education, and policy and legal support in Houston and surrounding areas recovering from the effects of Hurricane Harvey. If not for their need to counteract the effects of HUD’s action, Texas Plaintiffs would be deeply engaged in research, data analysis, policy and legal support, and public education concerning various recovery issues, including State and municipal
43

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 44 of 60
compliance with civil rights obligations associated with federal disaster recovery funding programs and the effectiveness and efficiency of State and municipal programs offering disaster recovery services and supports to low-income families.
127. Counteracting the effects of HUD’s suspension of the AFFH Rule’s requirements also limits the Texas Plaintiffs’ ability to engage in outreach and education for low-income families in places like Beaumont and Port Arthur, where low-income families are disproportionately exposed to environmental hazards that cause persistent health problems, as well as in Amarillo, where Texas Plaintiffs had begun to meet with community groups to talk about fair housing problems and develop advocacy strategies, but now must suspend such efforts.
128. Texas Appleseed has also been required to divert the time of the head of its Disaster Recovery and Fair Housing Project away from developing a project to protect land rights of African Americans who own “heir property,” i.e., land that has been passed down informally from generation to generation without recorded transactions—complicating, among other things, eligibility for federal benefits for disaster recovery—and from providing input on the revision of the zoning code in Austin, Texas, to address patterns of segregation and access to opportunity in that city. Other organizational representatives have diverted resources away from fundraising and other programmatic work to assist with these projects and to address various other capacity issues caused by the shift in focus relating to HUD’s suspension of the AFH process.
2. Harm to NFHA 129. The Texas-specific harm being suffered by the Texas Plaintiffs is representative of the harm that NFHA and its members are suffering around the country.
44

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 45 of 60
130. NFHA is a non-profit corporation dedicated to ending discrimination in housing. NFHA works to ensure equal housing opportunity for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy, community development, investigation of fair housing violations, and enforcement. Its mission is being frustrated by HUD’s unlawful decision to suspend the AFFH Rule’s requirements. To counteract the effects of HUD’s action, NFHA has been forced to divert resources away from other important projects.
131. Since the late 1980s, NFHA has worked to encourage HUD to do more to implement and enforce the Fair Housing Act’s requirement that recipients of federal funds affirmatively further fair housing. Among other things, it has long called on HUD to enact procedures that ensure AFFH compliance. When HUD has been unwilling to effectively enforce the AFFH requirement, NFHA has had to expend resources in its stead.
132. When HUD modified the Analysis of Impediments process in 1995 and issued the Fair Housing Planning Guide in 1996, NFHA was intimately involved with the implementation of the AI process on the ground. Among other things, it trained its members and worked with them locally to develop AIs; held educational sessions at conferences; and helped HUD identify key fair housing issues that funding recipients should address in their AIs.
133. In 2001, NFHA developed and disseminated a template for developing AIs, because HUD’s Fair Housing Planning Guide had proven inadequate for that task. NFHA’s template was widely distributed and used nationally.
134. NFHA and its members have played a key role in the development and implementation of local AIs across the country.
135. Based on its experience with the failed AI process, NFHA was one of the leading advocates pushing for the creation of the AFFH Rule to replace it. Along with partners, NFHA
45

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 46 of 60
created and supported the National Commission on Fair Housing and Equal Opportunity. This Commission conducted five public hearings and gathered evidence regarding, among other things, HUD’s progress in implementing the AFFH obligation. Its report, published in 2008, concluded that “[t]he current federal system for ensuring fair housing compliance by state and local recipients of housing assistance has failed” and recommended many specific changes. National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008), available at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf.
136. NFHA devoted considerable resources to assisting HUD with developing the AFFH Rule. Among other things, it participated in HUD’s public hearings and submitted written comments on the proposed AFFH Rule itself and the AFH template.
137. Once HUD issued the final AFFH Rule, NFHA and its members worked in local communities across the country to generate effective community participation and substantive provisions in AFHs that would make meaningful differences to communities. NFHA members have actively participated in the AFH planning process in many jurisdictions, with NFHA providing resources, guidance, and strategic help. NFHA has posted on its website an extensive list of AFFH resources and materials to assist its members and the grantees themselves.
138. HUD’s action, if not enjoined, will diminish the benefits that NFHA derives from all this work already done and will frustrate the accomplishment of NFHA’s mission. NFHA engages in a variety of activities aimed at advancing fair housing priorities around the country. The AFFH Rule’s requirements, when in effect, make NFHA’s efforts more efficient and effective. Not only does the Rule provide NFHA and its members greater ability to ensure that fair housing considerations are included in municipal planning decisions, but its standardized
46

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 47 of 60
process and formalized rules make it much simpler for NFHA to advise and assist its members in effectively engaging at the local level. HUD now has removed those regulatory benefits, directly harming NFHA’s ability to achieve fair housing and help its members to do the same.
139. HUD’s abrupt suspension of the AFFH Rule’s requirements has required NFHA to divert resources to educating and counseling its members, civil rights organizations, and affordable housing stakeholders about HUD’s action and how to achieve fair housing locally under much more challenging circumstances. Such diversion will continue unless and until HUD’s action is enjoined.
140. Because of NFHA’s long-standing commitment to and expertise regarding the AFFH statutory obligation (before and after the promulgation of the AFFH Rule), its members and other civil rights and affordable housing stakeholders look to it for education and counseling regarding HUD’s notice and how to promote effective fair housing planning without the AFFH Rule’s protections. NFHA is expending considerable financial and human resources on this education and counseling.
141. For example, NFHA staff gave presentations concerning the notice and its effects to the Leadership Conference on Civil and Human Rights Fair Housing and Fair Lending Taskforce; Americans for Financial Reform Housing and Foreclosure Working Group; and the Affirmatively Furthering Fair Housing Working Group of NFHA’s members.
142. NFHA staff members have begun developing a comprehensive side-by-side analysis of the differences between the AFH and AI processes for use in educating and counseling its members. NFHA will disseminate this document to its members upon its completion and will expend further resources continuing to update it.
47

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 48 of 60
143. NFHA has engaged in and will need to continue to engage in individualized counseling regarding HUD’s action with its members located in strategic areas throughout the country. These efforts, which already have required considerable staff time, have been necessary and will continue to be necessary to educate members about the notice’s impact and the most effective means for ensuring effective fair housing planning without the AFFH Rule’s protections. NFHA has had to identify those areas most immediately affected by HUD’s actions, such as where local government program participants submitted AFHs prior to January 5 but did not receive HUD’s acceptance of their submissions, and then conduct outreach to its members and other allied local civil rights and affordable housing advocates operating in those jurisdictions.
144. The amount of resources that NFHA must divert to such activities will increase in the coming months, because most local government program participants would have had AFHs due in the next two years pursuant to the AFFH Rule. Hundreds of local governments in the coming months will have to determine whether to use the AFH tool to fulfill their AI obligations prior to developing their Consolidated Plans, and whether they will adhere to the AFFH Rule’s timeline and procedural protections. NFHA will have to continue to divert resources from its planned operations to helping these jurisdictions, its members, and other civil rights and affordable housing groups further fair housing in these uncertain circumstances. And it will not be able to do so in such a targeted way, because of the much larger number of jurisdictions at issue.
145. In the absence of HUD oversight, NFHA is preparing to devote substantial resources to outreach, public education, and advocacy to assist its members and community groups working to ensure that jurisdictions formulate AIs that are robust as possible (given the
48

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 49 of 60
circumstances) and then monitoring compliance. Through this work, NFHA plans to blunt, as best it can, the negative impact of HUD’s action. It will have to devote resources to assisting its members and others with respect to monitoring and enforcing AFFH compliance in the absence of effective monitoring and enforcement by HUD. NFHA would not have to devote nearly the same level of resources to such tasks with the AFFH Rule in place.
146. As a result of HUD’s action, funding recipients that already were at work on assessments—many of which would have been due not much more than a year from now—have halted their work. Accordingly, NFHA and its members will face a more onerous task in helping these jurisdictions develop effective AFHs after the lengthy period of delay.
CAUSES OF ACTION First Cause of Action Administrative Procedure Act – Agency Action Taken Without Observance of Procedure
Required by Law 147. The APA empowers this Court to hold unlawful and set aside agency actions taken “without observance of procedure required by law.” 5 U.S.C § 706(2)(D). 148. Without following notice-and-comment procedure, HUD has delayed for three years the AFH process required by the properly promulgated AFFH Rule. During this time, the agency announced, it will exempt local governments from following their regulatory obligation to prepare and submit AFHs. Meanwhile, the agency will not meet its own regulatory obligation to review all AFHs submitted—including those already submitted—and either accept them or work with jurisdictions to generate AFHs that meet the Rule’s requirements. 149. Without notice-and-comment procedure, HUD has reinstated the AI process that was superseded by the AFFH Rule and does not exist in current regulation.
49

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 50 of 60
150. Without notice-and-comment procedure, HUD has effectively suspended all the subsidiary requirements of the AFH process, including the AFFH Rule’s community participation procedural rules.
151. Without notice-and-comment procedure, HUD has suspended the requirement of the AFFH Rule that jurisdictions certify that they meet the Rule’s definition of affirmatively furthering fair housing. HUD also has suspended the requirement that jurisdictions meet the fair housing requirements that the AFFH Rule added to the Consolidated Plan process in order to continue to receive federal funds.
152. Pursuant to the APA, HUD was required to undertake notice-and-comment rulemaking to revise the AFFH Rule, including changing the dates on which jurisdictions are required to submit their first AFHs for HUD review.
153. By failing to engage in notice-and-comment rulemaking before delaying and altering the AFFH Rule, HUD failed to observe procedures required by law, in contravention of the APA.
Second Cause of Action Administrative Procedure Act – Agency Action That is Arbitrary, Capricious or an Abuse
of Discretion 154. The APA empowers this Court to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law.” 5 U.S.C. § 706(2)(A). 155. HUD stated that it was suspending the AFFH Rule’s requirements in part because implementing it required the expenditure of agency resources. Abandoning a regulatory program lawfully promulgated by the agency for that reason was arbitrary and capricious, particularly
50

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 51 of 60
where the agency does not contend or state facts suggesting that the resources required to implement the program are unexpected or render implementation infeasible.
156. HUD also stated that it was suspending the AFFH Rule’s requirements in part because local governments must expend resources to comply with it. That local governments must expend resources to implement a duly promulgated regulatory program—a program that they have voluntarily agreed to implement as a condition of accepting federal funding—does not justify delaying the requirement that they comply with the regulatory scheme while permitting them to keep the federal funds. HUD does not contend that the additional resources local governments have had to expend are unreasonable or unexpected, and they are not.
157. HUD suspended the AFFH Rule’s requirements in part because some local governments initially submitted AFHs that HUD was unwilling to accept. HUD does not contend that it was surprising that some local governments required assistance to formulate compliant AFHs in the Rule’s early days, and it was not. Nor did HUD explain why it concluded that the submission of some deficient AFHs was a reason to effectively suspend the Rule.
158. HUD stated that it was suspending the AFFH Rule’s requirements because of unspecified concerns about the quality of its own technical assistance. HUD did not explain why it cannot improve the quality of its technical assistance while implementing the Rule. HUD did not acknowledge or explain its decision to voluntarily reduce its technical assistance to jurisdictions.
159. HUD stated that it intends to use the time during which the AFFH Rule is effectively suspended to revise the Assessment Tool for Local Governments. Changes could be made to the Assessment template without stopping the Assessment process—as the Rule
51

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 52 of 60
specifically contemplates and requires at regular intervals. The intention to revise the Assessment Tool does not justify HUD’s action.
160. HUD’s reasoning ignores key evidence that was before the agency and improperly focuses on what the agency now perceives to be the Rule’s costs (such as increased work) without mentioning the benefits flowing from the Rule.
161. HUD’s reasoning fails to acknowledge that almost all jurisdictions participating in the process so far have successfully submitted compliant AFHs, either on first submission or after work with HUD. It fails to acknowledge that these AFHs contain far more concrete, measurable commitments to further fair housing than were in the AIs prepared by the same jurisdictions.
162. HUD has not explained why it is acceptable to return to the AI regime that, as the agency itself has found, does not work. It did not acknowledge its own findings in promulgating the Rule regarding the ineffectiveness of the AI regime.
163. HUD’s delay of the Rule is arbitrary, capricious, or an abuse of discretion, in contravention of the APA.
Third Cause of Action Administrative Procedure Act – Agency Action Not in Accordance with Law 164. The APA empowers this Court to set aside an agency action that is “not in accordance with law.” 5 U.S.C. 706(2)(A). 165. In promulgating the AFFH Rule, HUD found that it needed a new and robust approach to ensuring that local governments and other grantees take actions that meet their obligations under the Fair Housing Act as recipients of federal housing funds. HUD found that its previous practices had not been effective in leading to meaningful action regarding segregation, concentrated poverty, disparities in access to community assets, and other problems
52

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 53 of 60
that the Fair Housing Act requires funding recipients to address. It adopted the AFFH Rule to bring its own practices and its grantees’ practices into compliance with the statutory requirement. 80 Fed. Reg. at 42,275.
166. HUD has an affirmative obligation under the Fair Housing Act to ensure that federal housing programs are administered, and federal housing funds spent, in a manner that furthers fair housing. The AFFH obligation requires both addressing actions that are actively discriminatory and taking affirmative steps to overcome barriers to fair housing choice that, in many cases, are the products of long-standing structural and institutional racism. 42 U.S.C. §§ 3608(d), (e)(5). As HUD has stated, where a program participant “has the ability to create opportunities outside of the segregated, low-income areas but declines to do so,” that raises a serious question as to whether the participant is meeting its obligation to affirmatively further fair housing. 80 Fed Reg. 42279. HUD is now making a comparable decision.
167. In suspending core provisions of the AFFH Rule, HUD abdicated its statutory responsibilities. It now is once again distributing federal housing funds without ensuring that local government grantees take the steps necessary to comply with their obligation to affirmatively further fair housing.
168. HUD’s effective suspension of the AFFH Rule violates the Fair Housing Act, in contravention of the APA.
53

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 54 of 60
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
(a) Enter a declaratory judgment that HUD’s January 5, 2018 decision to suspend
various requirements of the AFFH Rule is arbitrary, capricious, an abuse of discretion or
contrary to law, and without observance of procedure required by law;
(b) Issue preliminary and permanent injunctions requiring HUD to rescind its January
5, 2018 notice suspending the AFFH Rule’s requirements and timely implement and enforce
all the requirements of the AFFH Rule going forward;
(c) Direct HUD to take all affirmative steps necessary to remedy the effects of the
illegal conduct described herein and to prevent similar occurrences in the future;
(d) Award Plaintiffs their reasonable attorneys’ fees and costs; and
(e) Order such other relief as this Court deems just and equitable.
Dated: May 8, 2018
Respectfully submitted,
/s/ Sasha Samberg-Champion Sasha Samberg-Champion (DC Bar No. 981553) Sara Pratt (DC bar admission pending) Michael G. Allen (DC Bar No. 409068) RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 Phone: (202) 728-1888 Fax: (202) 728-0848 ssamberg-champion@relmanlaw.com spratt@relmanlaw.com mallen@relmanlaw.com
Jon Greenbaum (DC Bar No. 489887) Joseph D. Rich (DC Bar No. 463885) Thomas Silverstein (DC Bar No. 1552406) 54

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 55 of 60
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Washington, DC 20005 (202) 662-8331 jrich@lawyerscommittee.org
Philip Tegeler (DC Bar No. 1002526) Megan Haberle (DC bar admission pending) POVERTY & RACE RESEARCH ACTION COUNCIL 740 15th Street NW, Suite 300 Washington, DC 20005 (202) 360-3906 ptegeler@prrac.org
Rachel Goodman Sandra Park AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2500 rgoodman@aclu.org spark@aclu.org
Arthur B. Spitzer (DC Bar No. 235960) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW - 2nd floor Washington, DC 20005-2302 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org
Ajmel Quereshi NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 (202) 682-1300 aquereshi@naacpldf.org
Sherrilyn A. Ifill Samuel Spital NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.
55

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 56 of 60
40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 Allison M. Zieve (DC Bar No. 424786) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 (202) 588-1000 Attorneys for all Plaintiffs Morgan Williams (pro hac vice application forthcoming) NATIONAL FAIR HOUSING ALLIANCE 1101 Vermont Ave. NW, Suite 710 Washington, DC 20005 (202) 898-1661 mwilliams@nationalfairhousing.org Attorney for Plaintiff National Fair Housing Alliance Madison Sloan (pro hac vice application forthcoming) TEXAS APPLESEED 1609 Shoal Creek Bld. # 201 Austin, TX 78701 (512) 473-2800 msloan@texasappleseed.net Attorney for Plaintiff Texas Appleseed
56

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 57 of 60
EXHIBIT A

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 58 of 60

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

683

Contact Person: Donald Scott Wright, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5108, MSC 7854, Bethesda, MD 20892, (301) 435– 8363, wrightds@csr.nih.gov.
Name of Committee: Vascular and Hematology Integrated Review Group, Hypertension and Microcirculation Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: Hilton Garden Inn Orlando East UCF, 1959 N. Alafaya Trail, Orlando, FL 32822. Contact Person: Ai-Ping Zou, M.D., Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4118, MSC 7814, Bethesda, MD 20892, 301–408– 9497, zouai@mail.nih.gov.
Name of Committee: Endocrinology, Metabolism, Nutrition and Reproductive Sciences Integrated Review Group, Integrative Nutrition and Metabolic Processes Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 1:00 p.m. Agenda: To review and evaluate grant applications. Place: Westin Grand, 2350 M Street NW, Washington, DC 20037. Contact Person: Gregory S Shelness, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6156, Bethesda, MD 20892–7892, 301–755–4335, greg.shelness@nih.gov.
Name of Committee: Bioengineering Sciences & Technologies Integrated Review Group, Nanotechnology Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: Baltimore Marriott Waterfront, 700 Aliceanna Street, Baltimore, MD 21202. Contact Person: James J Li, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5148, MSC 7849, Bethesda, MD 20892, 301–806–8065, lijames@csr.nih.gov.
Name of Committee: Molecular, Cellular and Developmental Neuroscience Integrated Review Group, Cellular and Molecular Biology of Glia Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: St. Gregory Hotel, 2033 M Street NW, Washington, DC 20036. Contact Person: Linda MacArthur, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4187, Bethesda, MD 20892, 301–537–9986, macarthurlh@csr.nih.gov.
Name of Committee: Integrative, Functional and Cognitive Neuroscience Integrated Review Group, Auditory System Study Section.
Date: February 8–9, 2018.

Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: The Westgate Hotel, 1055 Second Avenue, San Diego, CA 92101. Contact Person: Ying-Yee Kong, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5185, Bethesda, MD 20892, ying-yee.kong@nih.gov.
Name of Committee: Emerging Technologies and Training Neurosciences Integrated Review Group, Neuroscience and Ophthalmic Imaging Technologies Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: Renaissance Washington, DC Downtown Hotel, 999 Ninth Street, Washington, DC 20001. Contact Person: Yvonne Bennett, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5199, MSC 7846, Bethesda, MD 20892, 301–379– 3793, bennetty@csr.nih.gov.
Name of Committee: Risk, Prevention and Health Behavior Integrated Review Group, Behavioral Medicine, Interventions and Outcomes Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: Doubletree Guest Suites Santa Monica, 1707 Fourth Street, Santa Monica, CA 90401. Contact Person: Lee S Mann, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 3224, MSC 7808, Bethesda, MD 20892, 301–435– 0677, mannl@csr.nih.gov.
Name of Committee: Musculoskeletal, Oral and Skin Sciences Integrated Review Group, Skeletal Biology Development and Disease Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 3:00 p.m. Agenda: To review and evaluate grant applications. Place: Westin Baltimore Washington Airport, 1100 Old Elkridge Landing Road, Linthicum Heights, MD 21090. Contact Person: Aruna K Behera, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4211, MSC 7814, Bethesda, MD 20892, 301–435– 6809, beheraak@csr.nih.gov.
Name of Committee: Molecular, Cellular and Developmental Neuroscience Integrated Review Group, Cellular and Molecular Biology of Neurodegeneration Study Section.
Date: February 8–9, 2018. Time: 8:30 a.m. to 4:00 p.m. Agenda: To review and evaluate grant applications. Place: SpringHill Suites San Diego Downtown/Bayfront, 900 Bayfront Court, San Diego, CA 92101. Contact Person: Laurent Taupenot, Ph.D., Scientific Review Officer, Center for

Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4183, MSC 7850, Bethesda, MD 20892, 301–435– 1203, taupenol@csr.nih.gov.
Name of Committee: Center for Scientific Review Special Emphasis Panel, Integrative Nutrition and Metabolic Processes.
Date: February 8, 2018. Time: 1:30 p.m. to 2:30 p.m. Agenda: To review and evaluate grant applications. Place: Westin Grand, 2350 M Street NW, Washington, DC 20037. Contact Person: Gary Hunnicutt, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6164, MSC 7892, Bethesda, MD 20892, 301–435– 0229, hunnicuttgr@csr.nih.gov.
(Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393–93.396, 93.837–93.844, 93.846–93.878, 93.892, 93.893, National Institutes of Health, HHS).
Dated: December 29, 2017.
Anna Snouffer,
Deputy Director, Office of Federal Advisory Committee Policy.
[FR Doc. 2018–00052 Filed 1–4–18; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–15]
Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice.
SUMMARY: This notice advises that HUD is extending the deadline for submission of an Assessment of Fair Housing (AFH) by local government consolidated plan program participants to their next AFH submission date that falls after October 31, 2020. Such program participants will not be required to submit an AFH using the current Office of Management and Budget (OMB)-approved version of the Assessment of Fair Housing Tool for Local Governments (OMB Control No: 2529–0054), but must continue to comply with existing obligations to affirmatively further fair housing. Local government program participants that have already submitted an AFH that has been accepted by HUD must continue to execute the goals of that AFH. DATES:
Applicability Date: January 5, 2018. Comment Due Date: March 6, 2018.

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 59 of 60

684

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

ADDRESSES: Interested persons are invited to submit comments responsive to this notice to the Office of General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410–0001. All submissions should refer to the above docket number and title. Submission of public comments may be carried out by hard copy or electronic submission.
1. Submission of Hard Copy Comments. Comments may be submitted by mail or hand delivery. Each commenter submitting hard copy comments, by mail or hand delivery, should submit comments to the address above, addressed to the attention of the Regulations Division. Due to security measures at all federal agencies, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that any comments submitted by mail be submitted at least 2 weeks in advance of the public comment deadline. All hard copy comments received by mail or hand delivery are a part of the public record and will be posted to http:// www.regulations.gov without change.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make comments immediately available to the public. Comments submitted electronically through the http://www.regulations.gov website can be viewed by other commenters and interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Comments. All comments submitted to HUD regarding this notice will be available, without charge, for public inspection and copying between 8 a.m. and 5 p.m., Eastern Time, weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202–708– 3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the Federal Relay Service at 800–877–8339 (this is

a toll-free number). Copies of all comments submitted are available for inspection and downloading at http:// www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, at 80 FR 42357, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule. The AFFH final rule provides HUD program participants with a new approach for planning for fair housing outcomes that will assist them in meeting their statutory obligation to affirmatively further fair housing as required by the Fair Housing Act, 42 U.S.C. 3608. To assist HUD program participants in meeting this obligation, the AFFH rule provides that program participants must conduct an Assessment of Fair Housing (AFH) using an ‘‘Assessment Tool.’’ HUD’s AFFH regulations provide for a staggered AFH submission deadline for its program participants. (See 24 CFR 5.160.)
On October 24, 2016, at 81 FR 73129, HUD published a notice extending the deadline for submission of an AFH for local government consolidated plan participants that received in Fiscal Year (FY) 2015, or receive in a subsequent fiscal year, a CDBG grant of $500,000 or less, or in the case of a HOME consortium, whose members collectively received a CDBG grant of $500,000 or less, from the program year that begins on or after January 1, 2018, to the program year that begins on or after January 1, 2019 for which a new consolidated plan is due. By notice published in the Federal Register on January 13, 2017, at 82 FR 4388, HUD announced the renewal of approval of the Assessment Tool for use by local governments that receive Community Development Block Grants (CDBG), HOME Investment Partnerships Program (HOME), Emergency Solutions Grants (ESG), or Housing Opportunities for Persons With AIDS (HOPWA) formula funding from HUD when conducting and submitting their own AFH, and in some joint and regional collaborations,

as explained in that notice. This Assessment Tool is referred to as the Assessment of Fair Housing Tool for Local Governments.
This notice extends the deadline for submission of an Assessment of Fair Housing (AFH) to all local government consolidated plan program participants until their next AFH submission deadline that falls after October 31, 2020. (See 24 CFR 5.160(a) for information about how to calculate a program participant’s AFH submission deadline.) The AFFH rule requires that program participants have no less than 9 months after the publication of the OMB-approved assessment tool to submit their AFH. Therefore, the Department selected the October 31, 2020 date in anticipation that it will complete the Paperwork Reduction Act requirements and receive OMB approval to renew the Assessment of Fair Housing Tool for Local Governments by January 31, 2020. Local government program participants will not be required to submit an AFH using the current OMB-approved version of the Assessment of Fair Housing Tool for Local Governments (OMB Control No: 2529–0054), but must continue to comply with existing statutory obligations to affirmatively further fair housing. (See 42 U.S.C. 3608.) Local government program participants who qualified for an extension under the October 24, 2016 notice are also covered by this notice, extending their deadline for submission of an AFH to their next AFH submission deadline (See 24 CFR 5.160(a).) that falls after October 31, 2020.
Based on the initial AFH reviews, HUD believes that program participants need additional time and technical assistance to adjust to the new AFFH process and complete AFH submissions that can be accepted by HUD. HUD’s decision is informed by the review of AFH submissions received. Based on the first 49 AFH initial submissions that received a determination of accept, nonaccept, or deemed accepted from HUD, the Department found that many program participants are striving to meet the requirements of the AFFH rule. In 2017, the Department conducted an evaluation of these submissions and found that more than a third (35%) were initially non-accepted.
HUD’s analysis identified several reasons that merit a delay of AFH submission deadlines, including program participants’ need for additional technical assistance. HUD determined that many program participants struggled to meet the regulatory requirements of the AFFH rule, such as developing goals that

Case 1:18-cv-01076-BAH Document 1 Filed 05/08/18 Page 60 of 60

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

685

could be reasonably expected to result in meaningful actions to overcome the effects of contributing factors and related fair housing issues. Further, program participants struggled to develop metrics and milestones that would measure their progress as they affirmatively furthering fair housing. HUD determined that program participants’ frequent misunderstanding of how to set clear goals, metrics, and milestones that addressed their identified contributing factors and related fair housing issues often resulted in non-accepted AFHs. HUD believes that additional technical assistance may result in program participants better understanding their obligations under the AFFH rule. HUD also believes that by enhancing its technical assistance that resources expended by program participants will be reduced because they are more likely to submit an initial AFH that can be accepted by HUD.
Additionally, HUD determined that significant staff resources are required when deciding that an AFH will not be accepted because it is inconsistent with fair housing or civil rights requirements or substantially incomplete, or both. (See 24 CFR 5.162 (a)(2)(b).) HUD believes that it can reduce the resources expended by program participants by examining and revising its technical assistance content and methods of delivery so that program participants’ AFHs are more likely to meet the regulatory requirements on first submission.
In order to reduce burden for program participants in conducting AFHs that meet the regulatory requirements, HUD, in the AFFH rule, encourages program participants to share resources and to address fair housing issues from a broader perspective by collaborating and submitting a single AFH. Nonetheless, HUD believes that some joint and regional collaborations that were non-accepted on their first submission may have benefited from technical assistance early in the process. For example, the largest regional AFH submitted to HUD consisted of 19 program participants. In its review of the AFH, HUD determined that each of the 19 program participants met the regulatory standards for nonacceptance. HUD believes that improving technical assistance for collaborative AFHs will enable collaborations to more efficiently use their resources to address fair housing issues that cross jurisdictional boundaries.
Based on the initial AFH reviews, HUD believes that local government program participants need additional time and technical assistance from HUD to adjust to the new AFFH process and

complete acceptable AFH submissions. HUD also believes it can use this time to improve its Data and Mapping Tool (AFFH–T) and the User Interface (AFFH–UI). The extension period allows HUD to further refine its materials to provide additional guidance to program participants. Finally, this extension allows HUD staff to devote additional time to providing program participants, and program participants in an AFH collaboration, with technical assistance on the legal objective to affirmatively further fair housing.
Consolidated plan program participants must continue to comply with existing, ongoing obligations to affirmatively further fair housing. Until a consolidated plan program participant is required to submit an AFH, it will continue to provide the AFFH Consolidated plan certification in accordance with the requirements that existed prior to August 17, 2015. See 24 CFR 5.160(a)(3). The requirements obligated a program participant to certify that it will affirmatively further fair housing, which means that it will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.
For Consolidated plan program participants that are starting a new 3–5year Consolidated plan cycle that begins before their due date for an AFH, the AI should continue to be updated in accordance with the HUD, Fair Housing Planning Guide (1996), available at https://www.hud.gov/sites/documents/ FHPG.PDF until those consolidated plan program participants submit an AFH after October 31, 2020. HUD encourages consolidated plan program participants to use the data and mapping tool and the AFH Assessment Tool as resources for program participants that are updating their AIs. HUD encourages program participants to collaborate to develop a regional AI, as regional collaborations provide an opportunity for program participants to share resources and address fair housing issues that cross jurisdictional boundaries.1
Program participants that have already submitted an AFH which has
1 Please refer to HUD’s 2017 interim guidance for additional information on collaboration, specifically the Q&A captioned: ‘‘How can States Collaborate with Local Governments or PHAs?’’. The guidance is available at: https:// www.hudexchange.info/resources/documents/ Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions pdf. This guidance is generally applicable to all types of program participants.

been accepted by HUD must continue to execute the goals of that accepted AFH and are not required to conduct a separate AI. Program participants that are covered by this notice and that may have already begun work on an AFH may continue to do so, as the AFFH rule may provide program participants with a useful framework for complying with their AFFH obligation.
HUD will discontinue the review of AFHs currently under review and will not render an accept, deemed accepted, or non-accept determination. Program participants that received a non-accept decision from HUD on their AFH submission and are preparing to resubmit an AFH are also covered by this notice and should not submit their revised AFHs. HUD encourages these program participants to use the information contained in their draft AFHs to conduct the required AI analysis. Finally, program participants prepared to submit their first AFH are covered by this notice and should not submit an AFH to HUD. Program participants that have not received an accept or non-accept determination from HUD, or that have received a nonaccept but will no longer be required to resubmit their AFH, are still required to prepare an AI, as described above in this notice.
HUD is issuing this notice for applicability immediately upon publication. Program participants must continue to affirmatively further fair housing as required by the Fair Housing Act. 42 U.S.C. 3608.
Although HUD is issuing this notice for applicability immediately upon publication, it also invites public comment for a period of 60-days on the extension. HUD will consider all the comments in its ongoing process of reviewing the Assessment of Fair Housing Tool for Local Governments.
Dated: January 2, 2018. Anna Maria Farı´as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–00106 Filed 1–4–18; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[Docket No. BOEM–2017–0020]
Outer Continental Shelf Official Protraction Diagrams MMAA104000
AGENCY: Bureau of Ocean Energy Management, Interior. ACTION: Availability of World Geodetic System Datum of 1984 Outer

 
 Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 1 of 73

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, TEXAS LOW INCOME HOUSING INFORMATION SERVICE, and TEXAS APPLESEED,

Plaintiffs,

Civ. Action No. 1:18-cv-01076-BAH

v.

FIRST AMENDED COMPLAINT

BEN CARSON and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants.

INTRODUCTION 1. Fifty years ago, Congress enacted the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. That Act is best known for barring a variety of forms of housing discrimination. Less attention has been paid to its requirement that the Secretary of the U.S. Department of Housing and Urban Development (HUD) “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” that Act. Id. § 3608(e)(5). Although this Affirmatively Furthering Fair Housing (AFFH) requirement was of great importance to Congress in enacting the Act, for decades, HUD inadequately enforced it. The agency has permitted more than 1,200 grantees—mostly local and state government entities—to collectively accept billions of dollars in federal housing funds annually without requiring them to take meaningful steps to address racial segregation and other fair housing problems that have long plagued their communities. 2. Recognizing that the AFFH requirement had not been adequately enforced, HUD in 2015 promulgated—through notice-and-comment rulemaking—the AFFH Rule, a regulation

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 2 of 73
requiring covered program participants, including cities and counties around the country, to take meaningful action to address longstanding segregation and otherwise carry out the Fair Housing Act’s requirements. The AFFH Rule creates a rigorous process to ensure that recipients of federal housing funds identify local fair housing problems and then commit to taking concrete steps to correct them (under HUD’s supervision and with considerable community input), while giving those jurisdictions flexibility to respond to local conditions. At the Rule’s core is the requirement that jurisdictions prepare and submit for HUD review an Assessment of Fair Housing (AFH), a document that includes both the jurisdiction’s self-diagnosis of fair housing impediments and a plan to overcome them. Jurisdictions must create these AFHs by reference to a standardized Assessment Tool that HUD creates and publishes (after notice and comment and clearance from the Office of Management & Budget) to focus jurisdictions’ analysis on certain required elements of an effective and compliant AFH.
3. In January 2018, HUD issued a notice suspending for almost three years the requirement that jurisdictions prepare AFHs and submit them for HUD review, effectively suspending the Rule itself. Plaintiffs sued. Less than two weeks later, in May 2018, HUD withdrew that notice, but the agency simultaneously replaced it with another notice that accomplishes the same result by withdrawing the Assessment Tool, thus making it impossible for jurisdictions to prepare and submit AFHs. Plaintiffs National Fair Housing Alliance (NFHA), Texas Low Income Housing Information Service (Texas Housers), and Texas Appleseed bring this suit to challenge HUD’s suspension of the Tool, which in effect suspends the AFFH Rule, as a violation of the Administrative Procedure Act (APA).
4. The effect of HUD’s action is that jurisdictions return to the dysfunctional process that was in effect from 1995 to 2015, pursuant to which HUD required only an annual
2

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 3 of 73
certification that a jurisdiction had studied fair housing impediments, taken “appropriate actions” to address them, and maintained related records. As both HUD and the Government Accountability Office found, putting local jurisdictions on the honor system is ineffective. When pressed, many jurisdictions could not produce any documentation supporting their certifications; others had prepared documents that made no concrete promises or otherwise did not translate into action on the ground to address fair housing concerns. A False Claims Act suit against Westchester County, New York revealed that the County had certified compliance for years without ever assessing whether racial segregation was a problem, let alone committing to addressing the barriers to integration that were well known to exist in Westchester.
5. In response to these revelations and to ensure greater accountability for compliance with civil rights laws, in 2009, HUD began an exhaustive, six-year process of crafting a more effective AFFH enforcement regime, culminating in the promulgation of the AFFH Rule in 2015. This Rule requires every covered jurisdiction to develop, submit for HUD review, and implement a planning document—called an Assessment of Fair Housing (AFH)— that includes concrete plans to address local fair housing issues.
6. The Rule requires jurisdictions to provide extensive notice to stakeholders and to solicit public comment about fair housing problems in various communities; to consult with fair housing groups and other interested entities; and to encourage public comment on drafts of their AFHs. Jurisdictions must submit their AFHs for HUD review (along with explanations about why comments from stakeholders were or were not incorporated), and HUD must carefully review them. HUD must reject those AFHs not meeting specified requirements and require the submission of revised, compliant versions. In short, the AFFH Rule requires jurisdictions to take meaningful action to demonstrate their eligibility for federal housing funds by addressing local
3

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 4 of 73
fair housing issues, while requiring HUD to monitor their compliance. It includes a schedule on which various jurisdictions are to submit their first AFHs, beginning in 2016, 2017, and 2018 for a small number of jurisdictions and then ramping up in 2019.
7. In the approximately two years since it went into effect, the AFFH Rule has already paid dividends. Many jurisdictions that have gone through the AFH drafting process have committed to concrete reforms that will improve the lives of their most vulnerable residents and create more integrated, inclusive communities. They have, for example, committed to provide help for residents of predominantly African-American neighborhoods who disproportionately face unwarranted evictions; make zoning processes more inclusive for people with disabilities; and create affordable rental units in high-opportunity neighborhoods. The jurisdictions have done so after soliciting input from their communities, accepting comments from fair housing organizations and others on their initial drafts, and undergoing review by HUD (which, sometimes, has required revisions). This robust process has led to a newfound commitment to take meaningful steps towards affirmatively furthering fair housing.
8. Even before becoming Secretary of HUD, Defendant Ben Carson criticized the AFFH Rule, which he compared to “failed socialist experiments” such as “mandated busing” of schoolchildren. After he became Secretary, HUD began cutting back implementation efforts. For example, it reduced the technical assistance that it provided to help local jurisdictions craft effective and compliant AFHs.
9. On January 5, 2018, HUD abruptly announced, without prior notice or opportunity to comment, that it was suspending the AFFH Rule’s requirement that local governments complete and submit AFHs. Plaintiffs sued. Ten days later, HUD withdrew that notice, purporting to reinstate the AFFH Rule, but simultaneously issued two others that instruct
4

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 5 of 73
participants not to follow the AFFH Rule’s requirements. Specifically, HUD withdrew the Assessment Tool, thereby making it impossible for jurisdictions to complete and submit AFHs to HUD, and thus effectively suspending the AFFH Rule indefinitely. HUD directed participants instead to revert to the Assessment of Impediments (AI) that the AFFH Rule had replaced. Once again, HUD took these actions without prior notice or an opportunity for comment.
10. HUD had no authority to suspend the Tool or to suspend the Rule in any other way without notice-and-comment procedures. The AFFH Rule specifically provides that federal housing money may not continue to flow to jurisdictions without a HUD-approved AFH. Yet HUD’s action permits exactly that result for most jurisdictions in the country. Meanwhile, by abandoning the AFH process, HUD has excused compliance with a host of non-discretionary duties related to that process, including meeting regulatory deadlines for submitting AFHs and providing community members and groups with the opportunity to advance goals and strategies consistent with their fair housing missions through the public participation process.
11. Additionally, HUD’s withdrawal of the Assessment Tool was arbitrary and capricious. HUD stated that the Assessment Tool had proved to be “unworkable.” It based this conclusion on (1) the fact that it rejected 17 of the first 49 initially submitted AFHs, which it blamed on the Assessment Tool, and (2) its estimate that it has spent $3.5 million so far on the AFFH Rule, an amount it said could not “scale” to the number of jurisdictions yet to submit AFHs for review. HUD did not adequately explain how these facts support withdrawing the Assessment Tool and excusing local governments from further compliance with the Rule, and they do not. In particular, HUD failed to explain why some local governments’ failure to follow the Rule’s clear requirements demonstrated any fundamental deficiency in the Assessment Tool. It failed to demonstrate that its expenditures will increase dramatically as more jurisdictions
5

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 6 of 73
submit AFHs. And above all, it failed to demonstrate that its concerns warrant the drastic step of withdrawing the Assessment Tool and shutting down the AFH process. Indeed, HUD did not consider any less disruptive alternatives.
12. By returning to the dysfunctional, pre-AFFH Rule regime that HUD itself concluded did not work, HUD also is violating its statutory duty under the Fair Housing Act to ensure that federal funds are used to affirmatively further fair housing. Decades of experience have shown that, left to their own devices, local jurisdictions will simply pocket federal funds and do little to further fair housing objectives. HUD made no attempt to reconcile its withdrawal of the Tool and instruction to return to the process that was in effect before the AFFH Rule with its own prior finding that the Rule is necessary.
13. HUD’s action is causing irreparable harm to Plaintiffs and to others in communities across the country. Plaintiffs, organizations with purposes that include promoting fair housing, are already having their missions frustrated by HUD’s action and are having to divert scarce resources from other important activities to remedy the effects of HUD’s action.
14. Plaintiffs bring this action seeking preliminary and permanent injunctive relief, including a ruling that the two May 2018 Notices withdrawing the Assessment Tool and instructing participants to revert to the AI process—like the January 2018 notice before them— constitute unlawful agency action. They seek an order that HUD rescind those actions and take all necessary steps to implement and enforce the AFFH Rule.
15. Fifty years after the passage of the Fair Housing Act, it is well past time that HUD carries out its statutory duty to ensure that jurisdictions that take federal housing funds fulfill their end of the bargain and affirmatively further fair housing. HUD failed for decades to require local jurisdictions to take meaningful action with respect to racially segregated communities and
6

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 7 of 73
other obvious fair housing issues. It finally created a regulatory scheme to ensure that jurisdictions receiving federal funds effectuate the Act’s requirements, but now has unlawfully abandoned it. Judicial intervention is necessary to vindicate the rule of law and to bring fair housing to communities that have been deprived of it for too long.
PARTIES 16. The National Fair Housing Alliance (NFHA) is a national, nonprofit, public service organization incorporated under the laws of the Commonwealth of Virginia with its principal place of business in Washington, DC. NFHA is a nationwide alliance of private, nonprofit, fair housing organizations, including organizations in 28 states. NFHA’s mission is to promote residential integration and combat discrimination in housing based on race, national origin, disability, and other protected classes covered by federal, state, and local fair housing laws. 17. Plaintiff Texas Housers is a non-profit corporation with offices in Austin, Fort Worth, Hidalgo County, and Houston, Texas. It is the principal statewide advocacy group focused on expanding housing opportunities for low-income residents of Texas. 18. Plaintiff Texas Appleseed is a non-profit organization headquartered in Austin, Texas. Its mission is to promote social and economic justice for all Texans, including by ensuring that all Texas families can recover in the wake of natural disasters; that communities are rebuilt to be more resilient; and that all families have the opportunity to live in safe, decent neighborhoods with equal access to educational and economic opportunity. 19. Defendant U.S. Department of Housing and Urban Development (HUD) is an executive branch agency of the United States Government. It is charged with administering a variety of federally funded programs and funding sources. It also is responsible for ensuring that
7

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 8 of 73
federal programs and activities relating to housing and urban development affirmatively further fair housing.
20. Defendant Ben Carson is the Secretary of HUD and is sued in his official capacity.
JURISDICTION AND VENUE 21. This Court has jurisdiction over this matter under 28 U.S.C. § 1331 and 5 U.S.C. § 702. 22. Venue is proper in this District under 28 U.S.C. § 1391(b) and 5 U.S.C. § 703 because the claims arose in the District, Defendants reside in this District, and a substantial part of the events giving rise to this action occurred in the District.
FACTUAL ALLEGATIONS A. Overview of the Fair Housing Act’s AFFH Provisions and Historical Context 23. HUD sends billions of dollars in federal funds each year to state and local jurisdictions, and those communities regularly certify both that they do not discriminate and that they are taking affirmative steps to further fair housing. But until recently, the agency has largely neglected to require those communities to do anything meaningful to fulfill those promises. HUD thus failed, until the promulgation of the AFFH Rule at issue in this case, to give appropriate force to a central part of the Fair Housing Act. That law does not simply bar overtly discriminatory actions, but also requires that federal funds are spent in ways that ameliorate (rather than exacerbate) long-standing patterns of residential segregation. It also requires that recipients of federal funds work toward those fair housing goals in the operation of their housing and community development policies, practices, and programs.
8

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 9 of 73
24. The AFFH requirement, like much else in the Fair Housing Act, arose from the findings of the National Advisory Committee on Civil Disorders (“Kerner Commission”). In 1967, President Johnson charged the Kerner Commission with studying the causes of recent urban unrest and recommending solutions. The Kerner Commission’s report, released in February 1968, found “[p]ervasive discrimination and segregation in employment, education and housing.” Report of the National Advisory Commission on Civil Disorders: Summary of Report, at 9 (1968), https://www.hsdl.org/?view&did=35837. It noted that federal money was being spent in ways that contributed to this segregation and recommended, among other things, that “[f]ederal housing programs must be given a new thrust aimed at overcoming the prevailing patterns of racial segregation.” Id. at 24.
25. When Congress enacted the Fair Housing Act weeks later, in the immediate aftermath of the assassination of Dr. Martin Luther King, Jr. and in response to the recommendations of the Kerner Commission, it sought to replace racially segregated neighborhoods with “truly integrated and balanced living patterns.” Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (citing 114 Cong. Rec. 3422, statement of FHA sponsor Senator Walter Mondale). Consistent with this legislative purpose, in addition to barring discrimination in housing, the FHA also imposed on HUD the obligation to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter.” 42 U.S.C. § 3608(e)(5). Effective implementation of this provision is central to the “Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507, 2525-26 (2015).
9

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 10 of 73
26. As the Fair Housing Act’s legislative history and subsequent case law make clear, this duty to “affirmatively further fair housing” requires HUD to address segregation and other barriers to fair housing not just in its own policies and practices, but also in its oversight of its state and local jurisdictions and other entities that receive HUD grants. HUD’s duty under the Fair Housing Act requires it to “do more than simply refrain from discriminating,” NAACP v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987). Rather, HUD also must ensure that the Fair Housing Act powers affirmative movement towards integration in communities around the country, as Congress intended.
27. Since soon after the passage of the Fair Housing Act, federal courts have recognized that HUD must adopt processes to ensure that local governments administering federal housing programs abide by this congressional mandate. In Shannon v. U.S. Department of Housing and Urban Development, 436 F.2d 809, 821 (3rd Cir. 1970), the court concluded that HUD “must utilize some institutionalized method” for assessing local compliance. Similarly, in NAACP v. Secretary of Housing and Urban Development, the First Circuit held HUD liable for its failure to use its authority to “assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases.” 817 F.2d at 155.
28. In response to these and other rulings, HUD adopted only modest measures that barely staunched the flow of federal funds to projects and entities that failed to further fair housing objectives. For more than two decades, the agency neglected to adopt any system for ensuring that fair housing concerns were taken seriously by the many cities, towns, and counties that collectively receive billions of dollars every year through the Community Development Block Grant (CDBG) and HOME Investment Partnership (HOME) programs, notwithstanding
10

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 11 of 73
that the Fair Housing Act obligates all such grantees to affirmatively further fair housing and obligates HUD to ensure that they do.
29. In Fiscal Year 2017, HUD distributed $4.615 billion in federal grants devoted to housing block grant programs, accounting for about a tenth of HUD’s annual budget.1 In Fiscal Year 2018, that amount is slated to rise to almost $5.5 billion.2 By far the largest such program— accounting for about two-thirds of the total, and reaching every corner of the United States—is the CDBG program, which provides annual block grants to approximately 1,210 grantees, mostly units of state and local government. Id.; see also Community Development Block Grant Program – CDBG, U.S. Department of Housing & Urban Development (last accessed May 4, 2018), http://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs.
30. The CDBG program, which began with the Housing and Community Development Act of 1974, is one of HUD’s longest continuously running funding programs. HUD awards CDBG grants to local governments to carry out a wide range of community development activities directed toward revitalizing neighborhoods, fostering economic development, and providing improved community facilities and services. Local governments eligible for CDBG funds, known as “entitlement communities,” include the principal cities of Metropolitan Statistical Areas (MSAs); other metropolitan cities with populations of at least 50,000; and qualified urban counties with populations of at least 200,000 (excluding the population of entitled cities).
1 See Key Programs of the U.S. Department of Housing and Urban Development Budget, Novogradac & Company LLP (Mar. 22, 2018), https://www.novoco.com/atom/168201. 2 Peter Lawrence, Congress Agrees to Historic Funding for HUD in Fiscal Year 2018 Omnibus Spending Bill, Novogradac & Company LLP (Mar. 22, 2018), https://www.novoco.com/notesfrom-novogradac/congress-agrees-historic-funding-hud-fiscal-year-2018-omnibus-spending-bill
11

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 12 of 73
31. Entitlement communities have discretion to develop their own programs and funding priorities, so long as they use CDBG funds consistent with certain statutory objectives, such as benefitting low- and moderate-income persons. 42 U.S.C. § 5304(b)(3). They may, for example, use CDBG funds to rehabilitate affordable housing; acquire land for new affordable housing development; improve infrastructure and public facilities in low- and moderate-income areas; or foster economic development that creates jobs for low- and moderate-income workers.
32. Each CDBG recipient must develop a document called a Consolidated Plan every three to five years and submit it to HUD for review and approval. See 24 C.F.R. §§ 570.302, 91.200-91.230. The Consolidated Plan sets out community development priorities and multiyear goals based on housing and community development needs, housing and economic market conditions, and available resources. CDBG recipients also submit to HUD each year Annual Action Plans, which summarize the specific actions and activities planned and the federal and non-federal resources that will be used. HUD uses these submissions to monitor communities’ use of CDBG funds to achieve the goals of the CDBG program.
33. The majority of local governments participating in the CDBG program are on a five-year cycle and renewed their Plans most recently in 2014 or 2015. Thus, they are due to submit their next proposed Plans on various dates in 2019 or 2020. As discussed below, this timeframe also controls the timing of when the AFFH Rule requires these governments to, for the first time, submit to HUD for review and approval their Assessments of Fair Housing. The Rule thus specifically requires governments around the country in the coming months to engage in the robust process (including engagement of the community and local fair housing groups) that the AFFH Rule mandates.
12

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 13 of 73
34. CDBG recipients must certify that their grants will be conducted and administered in conformity with the Civil Rights Act of 1964 (which bars discrimination by recipients of federal funds on the basis of race, color, and national origin) and the Fair Housing Act. They also must certify that they will affirmatively further fair housing. 42 U.S.C. § 5304(b)(2); see also 24 C.F.R. § 570.601. But until the AFFH Rule’s promulgation, they were not required to submit to HUD any fair housing equivalent of the Consolidated Plan, i.e., an explanation of how they will conform to the AFFH requirement. Until the mid-1990s, HUD required its grantees merely to sign a bare certification that they complied with the 42 U.S.C. § 3608(e)(5).
35. In the mid-1990s, HUD finally promulgated regulations requiring each CDBG grantee to periodically conduct a written “Analysis of Impediments to Fair Housing Choice” (AI). This regulation instructed grantees to identify impediments to fair housing choice, take appropriate actions to overcome the effects of any such impediments, and maintain records reflecting the analyses and actions taken.
36. This system was virtually toothless. HUD did not require the grantees to submit their AIs to HUD for review or approval, and the AIs themselves had no required format or goals. HUD required grantees only to certify that they had conducted an AI and were taking appropriate actions to overcome identified impediments. The agency did not require that the impediments identified be meaningful, did not offer guidance as to what would be “appropriate actions” to overcome these impediments, and did not adopt a system for compliance review. At best, AIs were paper exercises in the planning of fair housing policy that sat on municipal shelves and never translated into actual policy; at worst, meaningful assessments of fair housing problems and solutions never appeared, even on paper.
13

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 14 of 73
37. HUD conducted almost no oversight of this process. It did not review AIs and, except for publishing a non-binding Fair Housing Planning Guide in 1996, did not provide any guidance or technical assistance to grantees. It imposed no consequences when a grantee failed to produce or update an AI or to take the actions described in an AI. With HUD failing to meaningfully oversee its grantees in accordance with 42 U.S.C. § 3608, jurisdictions around the country routinely skirted their AI obligations and falsely certified their compliance with even these weak requirements.
38. In 2008, the National Commission on Fair Housing and Equal Opportunity—a body co-chaired by former HUD Secretaries Jack Kemp (a Republican) and Henry Cisneros (a Democrat)—reported: “The current federal system for ensuring fair housing compliance by state and local recipients of housing assistance has failed…. HUD requires no evidence that anything is actually being done as a condition of funding and it does not take adverse action if jurisdictions are directly involved in discriminatory actions or fail to affirmatively further fair housing.” National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008), available at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf. See also The Opportunity Agenda, Reforming HUD’s Regulations to Affirmatively Further Fair Housing 7 (2010), available at https://opportunityagenda.org/sites/default/files/201703/2010.03ReformingHUDRegulations.pdf (stating that “[a] range of housing experts, civil rights groups, and former HUD officials have documented the inadequacy of the current AI process,” and detailing that testimony).
39. HUD’s countenancing of rampant non-compliance with the AFFH mandate came to a head in a False Claims Act case brought against Westchester County, New York. In that
14

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 15 of 73
case, a whistleblower organization alleged that the County had defrauded the United States for years by continually certifying to HUD its compliance with the Fair Housing Act, even as it was deliberately concentrating affordable housing for families in a small number of heavily AfricanAmerican and Latino communities and distributing CDBG funds to overwhelmingly white suburbs that refused to allow the development of affordable housing. United States ex rel. AntiDiscrimination Ctr. of Metro N.Y., Inc., v. Westchester Cty., N.Y., 495 F. Supp. 2d 375 (S.D.N.Y. 2007); 668 F. Supp. 2d 548 (S.D.N.Y. 2009)
40. The Westchester case publicly exposed the failings of the AI process and the annual “certification” process. On summary judgment, the district court found that the County could produce no evidence that it even evaluated race-based impediments to fair housing, let alone did anything about them, while annually certifying compliance and accepting more than $50 million in federal housing funds during the relevant years. 668 F. Supp. 2d at 562.
41. Following the Westchester decisions, HUD took a closer look at what its grantees were doing in exchange for billions of dollars of federal funds every year. It engaged in a series of hearings, listening sessions, and internal reports, and it concluded that the AI process was not working.
42. For the first time, HUD asked participating jurisdictions to produce their AIs for review, and the results were unacceptable. More than a third of jurisdictions could not or would not produce any AI at all. Of those that did produce an AI, HUD rated 49 percent as “needs improvement” or “poor.” HUD found that only 20 percent of AIs committed jurisdictions to doing anything on a set timeframe. See U.S. Department of Housing and Urban Development, Office of Policy Development and Research, Analysis of Impediments Study (2009).
15

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 16 of 73
43. At the same time, the Government Accountability Office (GAO) was undertaking a detailed review of the AI process. It released its conclusions in a 2010 report to Congress, GAO-10-905, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (2010), available at https://www.gao.gov/assets/320/311065.pdf (GAO Report).
44. The GAO Report highlighted the weaknesses of the AI process and urged HUD to reform the system of fair housing oversight of HUD grantees. The report found that many jurisdictions, lacking any oversight or accountability, failed to make minimal efforts to comply even with the lax requirements of the AI system.
45. For example, the GAO found that 29 percent of jurisdictions had not completed an AI within the last five years, as recommended by HUD’s Fair Housing Planning Guide, while 11 percent had not done so within the last 10 years; for another 6 percent the date of completion could not be determined. Since the purpose of an AI was to be a planning document for a 5-year period, these jurisdictions effectively had no operative AI at all. Many jurisdictions could not produce a document labeled an AI, and others produced perfunctory documents—or, in one case, an e-mail.
46. Even for those jurisdictions that had operative AIs, the GAO found little evidence that the AIs made a practical difference. The GAO reviewed many of the AIs that grantees had completed (and used as the basis for certifying compliance with the Fair Housing Act) and found most of them contained little more than aspirational statements of vague goals. It found, for example, that most AIs reviewed “lack time frames for implementing identified recommendations,” making it impossible “to establish clear accountability.” GAO Report at 31. Moreover, because HUD never established clear rules as to the most basic substantive and
16

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 17 of 73
procedural “requirements” it meant to impose—e.g., a timeline on which AIs should be completed, a process for completing them, the documents’ form and content—it was virtually impossible for HUD field offices to participate meaningfully in the process and ensure compliance even if they wanted to do so. Id. at 25.
47. By the time the GAO Report was issued, HUD had begun the process of formulating the AFFH Rule, and the GAO Report contained specific recommendations that the Rule largely incorporated. In particular, the GAO Report recommended that HUD establish standards and a common format for grantees to use in their planning documents; that grantees be required to include time frames for completing promised actions; and that grantees be required to submit these documents to HUD for comprehensive review on a regular basis. GAO Report at 32-33.
48. Based on the GAO Report, a vast record of rulemaking comments, and its own experience, HUD concluded that the AI process did not work. That was for myriad reasons; among other things, the AI drafting process “was not well integrated into the planning efforts for expenditure of funds made by HUD program participants,” and “HUD has not, in a systematic manner, offered to its program participants the data in HUD’s possession that may better help them frame their fair housing analysis.” Final Rule: Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,275 (July 16, 2015) (AFFH Rule).
B. HUD AFFH Rulemaking 49. In 2009, in response to the growing and uncontroverted evidence that it was failing to ensure that federal housing dollars were spent in ways consistent with the AFFH obligation, HUD began formulating a better system. The regulation that HUD formally proposed in 2013 and promulgated as a final rule in 2015 was the product of a comprehensive process of
17

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 18 of 73
outreach and study that informed the Rule’s eventual design. 80 Fed. Reg. 42,272; GAO Report at 29.
50. For example, in July 2009, HUD held a listening conference in which more than 600 people participated, both in person and remotely. As Assistant Secretary for Fair Housing John Trasviña testified to Congress the next year: “There, fair housing and civil rights groups, mayors, counties, and states all voiced their desire for HUD to amend its regulations to provide more concrete, specific information about how to develop a meaningful plan for affirmatively furthering fair housing.” John D. Trasviña, Assistant Secretary for Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development, Statement before the Subcommittee on Housing and Community Opportunity, Committee on Financial Services, U.S. House of Representatives, Hearing on H.R. 476 Housing Fairness Act of 2009 (Jan. 20, 2010), available at https://financialservices.house.gov/media/file/hearings/111/trasvina_-_hud.pdf.
51. After several years of gathering information, HUD published its proposed AFFH Rule on July 19, 2013. 78 Fed. Reg. 43,710 (July 19, 2013). It acknowledged that the problems revealed by the GAO, advocates, stakeholders, and program participants regarding the existing AI process required it to develop a new regime for AFFH enforcement. It determined that, under the AI regime, federal funding recipients did “not sufficiently promote the effective use of limited public resources to affirmatively further fair housing.” 78 Fed. Reg. at 43,711.
52. HUD found that it was required to change course in order to carry out its statutory mission: “HUD and its grantees have a statutory duty to affirmatively further fair housing. This is not an administrative requirement that can be waived by HUD.” 80 Fed. Reg. at 42,348 (emphasis added).
18

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 19 of 73
53. HUD explained that it was not seeking to “mandate specific outcomes” for jurisdictions. 78 Fed. Reg. at 43,711. Rather, the AFFH Rule would structure decision-making processes in ways that ensured that local fair housing concerns would be heard, considered, and ultimately acted upon on a regular basis, with HUD review of the resulting product providing accountability. It would no longer be possible for jurisdictions to fail to produce an AI altogether, or to produce one that entirely ignored fair housing concerns (as Westchester’s had), without HUD detecting and remedying the violation.
54. To accomplish this, the AFFH Rule introduced the Assessment of Fair Housing, or AFH, as the core planning and oversight tool that integrates fair housing considerations into jurisdictions’ regular planning processes. HUD would review the adequacy of jurisdictions’ plans—but it would also assist them, in a variety of ways, rather than leaving them at sea as to how to comply with their obligation to affirmatively further fair housing. HUD committed to providing participants with national data and meaningful direction, including clear standards to follow and ample technical support. 78 Fed. Reg. at 43,714; see also 80 Fed. Reg. at 42,275 (reiterating these “key features” of the rule). HUD received 1,025 comments on the proposed rule.
55. HUD published its final AFFH Rule on July 16, 2015, with an effective date of August 17, 2015. The final rule addressed the public comments HUD had received and made changes in response, such as strengthening the requirement that participants identify “meaningful actions” to further fair housing. The final rule also provided for a staggered AFH submission schedule, to reduce the burden on HUD and program participants and give smaller participants extra time to prepare. It described HUD’s plans to issue guidance and technical assistance to assist with the regulation’s rollout.
19

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 20 of 73
56. The AFFH Rule provides for a consistent template (the AFH) that participants must complete, engage the public in reviewing, and submit to HUD for oversight at regular intervals. 24 C.F.R § 5.154(d). Participants must use the AFH to identify local fair housing issues and make concrete plans to address them—including measurable goals and metrics for measuring success—with public input and HUD review. While the initial AFHs are an exercise in goal-setting, subsequent AFHs must review progress toward these goals, such that the process provides a cycle of accountability. 24 C.F.R. § 5.154(d)(7).
57. Under the AFFH Rule, a funding recipient “must certify that it will take meaningful actions to further the goals identified in its AFH,” 24 C.F.R. § 91.225(a)(1), with “meaningful actions” defined as “significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing.” 24 C.F.R. § 5.152.
58. In conjunction with this “meaningful action” requirement, HUD for the first time provided a regulatory definition of what it means to affirmatively further fair housing. HUD defined “AFFH” as:
taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. 24 C.F.R. § 5.152. 59. Thus, the regulation guarantees performance of the statutory duty to affirmatively further fair housing by requiring meaningful steps towards achieving the Fair Housing Act’s
20

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 21 of 73
ambitious goals. Those steps may vary widely from jurisdiction to jurisdiction, depending on local conditions and needs, but the constant is that every jurisdiction must take meaningful steps towards addressing its own barriers to fair housing.
60. Following its promulgation of the AFFH Rule, HUD issued an Assessment Tool (as required by the rule) to standardize the AFH process. The Assessment Tool was separately subject to public notice and comment under the Paperwork Reduction Act and is to be updated at regular intervals. In preparing their AFHs, local governments must use the Assessment Tool, which organizes all the required elements of an AFH into a template for simpler preparation and review. 24 CFR § 5.154(d). HUD determined that requiring program participants to use a common Assessment Tool to create their AFHs would ensure that “AFHs are developed consistently and will facilitate objective, consistent reviews.” 80 Fed. Reg. at 42,311.
61. The Assessment Tool for local governments was initially approved through the Paperwork Reduction Act process for a one-year period. See Affirmatively Furthering Fair Housing Local Government Assessment Tool-Information Collection Renewal: Solicitation of Comment-30-Day Notice Under Paperwork Reduction Act of 1995, 81 Fed. Reg. 57,601 (Aug. 23, 2016). After several rounds of comments and revisions, the current version of the Assessment Tool for local governments was approved in January 2017 through the Paperwork Reduction Act process for a three-year period. See Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the Assessment Tool for Local Governments, 82 Fed. Reg. 4,388 (Jan. 13. 2017). HUD did not withdraw the prior version while it was obtaining approval of the current one.
62. The Tool contains questions that local governments are required to answer by reference to, among other things, HUD-provided local data and maps. Local governments must
21

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 22 of 73
provide a narrative description and analysis of local fair housing conditions and describe policies and practices that influence those conditions. They must provide an analysis of, among other things, residential racial segregation, racially- or ethnically-concentrated areas of poverty, disparities in access to opportunity (such as jobs or education), and the housing needs of persons with disabilities. 24 C.F.R. § 5.154(d)(2), (3). The version of the Tool for local governments that HUD withdrew in its May Notices can be seen here: http://nationalfairhousing.org/wpcontent/uploads/2018/05/Assessment-of-Fair-Housing-Tool-For-Local-Governments-201701.pdf.
63. To facilitate this detailed analysis, the Rule provides for HUD to publicly issue a variety of maps and provide data customized for each participant. All of this information has been posted on HUD’s website. For each participating jurisdiction, a user can see patterns of residential segregation by race, national origin, and disability; the location of affordable housing; and details such as transit, job proximity, and school proficiency. These maps and data are available at https://egis.hud.gov/affht/.
64. The AFFH Rule provides that, in preparing the AFH, the funding recipient must provide for “meaningful community participation,” including through public hearings— publicized by “means designed to reach the broadest audience”—and through public review of an initial AFH draft. 24 C.F.R. § 5.158(a); see also 80 Fed Reg. at 42,300 (“public input is a fundamental and necessary component in the AFH process”). The jurisdiction also must consult with a number of designated community organizations, including but not limited to fair housing organizations, see 24 C.F.R. § 91.100(a), (e)(1), as well as “any organizations that have relevant knowledge or data to inform the AFH and that are sufficiently independent and representative to provide meaningful feedback to a jurisdiction on the AFH, the consolidated plan, and their
22

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 23 of 73
implementation.” 24 C.F.R. § 91.100(e)(2). This consultation “must occur at various points in the fair housing planning process,” including not only with respect to the drafting of the AFH, but also with respect to implementation of the AFH’s goals through the Consolidated Plan. 24 C.F.R. § 91.100(e)(3).
65. The completed AFH must include a summary of comments received, and explanations as to why any recommended changes to the draft AFH were not accepted. 24 C.F.R. § 5.154(d)(6).
66. Once a funding recipient has prepared and submitted an AFH, the Rule specifically contemplates and requires an iterative process between HUD and funding recipients. It calls on HUD not simply to pass judgment on AFHs, but to help funding recipients improve them and meet the AFFH Rule’s rigorous requirements.
67. The AFFH Rule requires HUD to review every Assessment of Fair Housing. HUD must “determine whether the program participant has met the requirements for providing its analysis, assessment, and goal setting,” 24 C.F.R § 5.162(a). The agency may not “accept an AFH if HUD finds that the AFH or a portion of the AFH is inconsistent with fair housing or civil rights requirements or is substantially incomplete,” 24 C.F.R. § 5.162(b). An AFH can be “substantially incomplete” for, among other things, failure to meet the required community participation and consultation requirements. 24 C.F.R. § 5.162(b)(1)(ii)(A). If HUD does not accept an Assessment, it must specify the reasons the Assessment has not been accepted and “provide guidance on how the AFH should be revised in order to be accepted.” 24 C.F.R. § 5.162(b)(2). If an Assessment fails to meet any required element, HUD must deem it incomplete and require revision, even if other elements are complete. 24 C.F.R. § 5.162(b)(1)(ii)(B).
23

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 24 of 73
68. The AFFH Rule establishes that each jurisdiction must complete and submit an AFH every three to five years—depending on that jurisdiction’s Consolidated Plan submission schedule—and do so in a way that integrates fair housing concerns into the Consolidated Plan that CDBG recipients already prepare on a similar schedule. 24 C.F.R. § 5.160.
69. Each CDBG recipient must complete and submit an AFH ahead of its Consolidated Plan schedule, so that financial and other commitments to implement the AFHs can be included in the next Consolidated Plan. Both the process of developing the Consolidated Plan and the Plan’s substance must then reflect various components of the AFH. See 24 C.F.R. § 5.160(a)(1)(i); 80 Fed. Reg. at 42,287; see also 24 C.F.R. § 91.105(e)(1)(i) (requiring that Consolidated Plan hearings include presentation of “proposed strategies and actions for affirmatively furthering fair housing consistent with the AFH”); 24 C.F.R. § 91.215(a)(5)(i) (CDBG participant must “[d]escribe how the priorities and specific objectives of the jurisdiction…will affirmatively further fair housing by setting forth strategies and actions consistent with the goals and other elements identified in an AFH”).
70. In order to ensure that HUD’s review could be rigorous, HUD considered and rejected a proposal that a funding recipient submit an AFH at the same time as its proposed Consolidated Plan. HUD reasoned that it was necessary to build in several months’ gap between the submissions to ensure that, prior to submission of the Consolidated Plan, “the affected communities would have already had the opportunity to review and comment on the AFH, HUD will have the opportunity to identify any deficiencies in the AFH, and the program participant will have the opportunity to correct any deficiencies, prior to incorporation of the AFH into the consolidated plan or PHA Plan, such that funding to program participants will not be delayed.” 80 Fed. Reg. at 42,311. Thus, HUD constructed a schedule that permits it to initially reject
24

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 25 of 73
AFHs—and then work with jurisdictions to improve them—as part of the routine process rather than as extraordinary event that seriously endangers federal funding.
71. The Consolidated Plan that follows must include fair housing elements that have been approved in the AFH. See 24 C.F.R. § 91.500(b); see also 80 Fed. Reg. at 42,299. An accepted AFH is now a requirement for HUD’s approval of the Consolidated Plan, 24 C.F.R. § 5.162(d), which in turn is a prerequisite for funding by the CDBG program. The AFFH Rule gives HUD only limited authority to excuse non-compliance with these requirements; if any jurisdiction fails to submit a Consolidated Plan that includes an approved AFH by August 16 of the federal fiscal year in question, that failure “will automatically result in the loss of the CDBG funds to which the jurisdiction would otherwise be entitled.” 24 C.F.R. § 5.162(d)(1) (emphasis added).
72. HUD set the dates for submission and review of AFHs on a staggered schedule, such that only a minority of jurisdictions must submit AFHs prior to 2019. The AFFH Rule requires jurisdictions to submit their first AFH by 270 calendar days before the beginning of their next CDBG program year. 24 C.F.R. § 5.160(a)(1). For most CDBG jurisdictions, this schedule requires that jurisdictions submit AFHs between April 2019 and early October 2020. Additionally, HUD postponed until 2019 the date by which any jurisdiction receiving an award of $500,000 or less was required to make a submission. See 81 Fed. Reg. 73,129 (Oct. 24, 2016). Thus, HUD structured the schedule of submissions such that 2017 and 2018 would be used as learning years in which both HUD and early-submitting jurisdictions (none of which are small jurisdictions) gained expertise with the process.
73. In the AFFH Rule, HUD committed itself to formulating specialized Assessment Tools for program participants with different needs. Accordingly, the Rule sets out different
25

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 26 of 73
deadlines for first submissions for different types of entities, e.g., larger local jurisdictions, smaller local jurisdictions, public housing authorities, and groups of entities that will participate jointly/regionally. 24 C.F.R. § 5.160(1)(i). It then provides:
If the time frame specified in this paragraph (a)(1) would result in a first AFH submission date that is less than 9 months after the date of publication of the Assessment Tool that is applicable to the program participant or lead entity, the participant(s)’ submission deadline will be extended as specified in that Assessment Tool publication to a date that will not be less than 9 months from the date of publication of the Assessment Tool. 24 C.F.R. § 5.160(1)(ii). 74. The AFFH Rule thus provides that, if HUD creates and publishes a specialized Assessment Tool for a category of program participants, any AFHs that otherwise would be due from those participants in the next 9 months are slightly postponed, to ensure that the participants have time to address the specific features of the new Assessment Tool. 75. The AFFH Rule makes concrete what had been a largely theoretical statutory obligation to affirmatively further fair housing for jurisdictions that accept federal housing funds. Those jurisdictions now must make fair housing considerations—both identifying fair housing issues and making plans to overcome them—part of their core planning processes, and HUD will regularly check their work and help them improve upon it. C. Secretary Carson’s Public Opposition to the AFFH Rule 76. Secretary Carson has been outspoken in opposing the AFFH Rule, before and after he was nominated to his position. 77. In an article published in 2015, Secretary Carson criticized the AFFH Rule at length, equating it to “mandatory busing” of schoolchildren. Ben S. Carson, Experimenting With Failed Socialism Again, Wash. Times, July 23, 2015, available at https://www.washingtontimes.com/news/2015/jul/23/ben-carson-obamas-housing-rules-try-to-
26

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 27 of 73
accomplish-/. He condemned both the AFFH Rule and a Supreme Court decision recognizing
that the Fair Housing Act bars disparate impact discrimination, stating that “based on the history
of failed socialist experiments in this country, entrusting the government to get it right can prove
downright dangerous.” Id.
78. In his confirmation hearing, Secretary Carson reiterated his hostility to the AFFH
Rule. In response to a question from Senator Sherrod Brown regarding his 2015 article, Secretary
Carson said:
As you probably know, that Act says that we want people who are receiving HUD grants to look around and see if they find anything that looks like discrimination and then we want them to come up with a solution on how to solve the problem. They’re not responding to people saying that there’s a problem, they’re saying go and look for a problem and then give us a solution. And what I believe to be the case is we have people sitting around their desks in Washington D.C. deciding on how things should be done—you know—telling mayors and commissioners that you need to build this place right here and you need to put these kinds of people at it.3
79. In an interview after being confirmed, Secretary Carson said in response to a
question about these prior statements that he “believe[s] in fair housing” but not in “extra
manipulation and cost.” Accordingly, he said about the AFFH Rule: “So we just have to reinterpret it, that’s all.”4
3 Housing and Urban Development Secretary Confirmation Hearing Before the Senate Banking, Housing and Urban Affairs Comm. (Jan. 12, 2017) (statement of Ben S. Carson, Nominee, Housing and Urban Development Secretary), available at https://www.cspan.org/video/?421258-1/hud-secretary-nominee-ben-carson-testifies-confirmationhearing&start=2552. 4 Joseph Lawler & Al Weaver, Ben Carson: HUD Will “Reinterpret” Obama Housing Discrimination Rule, Wash. Examiner, July 20, 2017, available at https://www.washingtonexaminer.com/ben-carson-hud-will-reinterpret-obama-housingdiscrimination-rule
27

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 28 of 73
80. Since Secretary Carson took office, HUD has provided no new guidance and has stopped providing the same level of technical support that it previously offered to jurisdictions preparing AFHs.
D. HUD’s January 5 and May 23 Suspensions of the AFFH Rule 81. Without providing advance notice or opportunity for comment, on January 5, 2018, HUD published a three-page notice in the Federal Register abruptly suspending the key requirements of the AFFH Rule. See Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83 Fed. Reg. 683 (Jan. 5, 2018) (attached as Exhibit A). 82. HUD’s notice announced that no local government would be required to submit AFHs until the next scheduled submission date that falls after October 31, 2020, nor would HUD review AFHs submitted to it until after that date. 83 Fed. Reg. at 684. 83. HUD stated that this suspension of the AFFH Rule’s requirements was necessary because, “[b]ased on initial reviews,” the agency concluded that “program participants need additional time and technical assistance to adjust to the new AFFH process and complete AFH submissions that can be accepted by HUD.” 83 Fed. Reg. at 684. 84. HUD stated that “additional technical assistance may result in program participants better understanding their obligations under the AFFH Rule.” 83 Fed. Reg. at 685. It further stated that “enhancing its technical assistance” would result in fewer resources expended by program participants “because they are more likely to submit an initial AFH that can be accepted by HUD.” Id. HUD also stated that it could use the additional time to improve the Assessment Tool. 83 Fed. Reg. at 685.
28

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 29 of 73
85. Although it failed to take comments before acting, HUD said it would accept comments on its action until March 6, 2018. 83 Fed. Reg. at 685. Almost all of the comments HUD received criticized its action.
86. Since issuing the January 2018 notice suspending the AFFH Rule’s requirements, purportedly to improve technical assistance, HUD has not taken any public actions aimed at improving its technical assistance.
87. On May 8, 2018, Plaintiffs filed this lawsuit and their motion for a preliminary injunction.
88. On May 18, 2018, HUD issued three related notices, all of which were published in the Federal Register on May 23, 2018.
89. The first notice withdrew the January 5 action suspending the AFFH Rule. See Exhibit B.
90. The second notice withdrew the Assessment Tool for local governments. See Exhibit C. It instructed participants that they should not follow the procedures of the AFFH Rule.
91. The third notice announced that local jurisdictions could meet their AFFH duty if they acted “in accordance with pre-existing requirements” in place before the AFFH Rule was promulgated. See Exhibit D.
92. The second and third notices described above are the same in practical effect as the January 5 notice suspending the AFFH Rule’s requirements.
93. The May Notices (Exhibits C and D) instruct local governments to revert to the failed AI process, i.e., prepare an Analysis of Impediments without HUD assistance, “take appropriate actions,” and then “maintain records reflecting the analysis and actions,” without submitting anything for HUD review. 83 Fed. Reg. at 23,927. HUD did not explain why it now
29

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 30 of 73
believed this process would be effective; indeed, it did not even acknowledge that the AFFH Rule was adopted precisely because of its own conclusion (and that of GAO) that the AI process had failed to ensure that federal funds were used to affirmatively further fair housing, as the Fair Housing Act requires. See, e.g., 78 Fed. Reg. at 43,711 (finding that, under the AI regime, federal funding recipients did “not sufficiently promote the effective use of limited public resources to affirmatively further fair housing”).
94. As a consequence of removing the AFH requirement indefinitely, HUD has also violated the regulatory requirement that it not distribute federal funds to recipients without an approved AFH.
95. HUD stated that it was taking this action because the Assessment Tool had proved to be “unworkable” with respect to the first 49 AFH submissions HUD reviewed. HUD pointed to the fact that it initially rejected 17 of the first 49 submissions and required jurisdictions to revise them and requested that the submitters of 14 others provide revisions or addendums before considering them. 83 Fed. Reg. at 23924. It said this “excessively high rate of unacceptable AFHs was due, in large measure, to problems with the Local Government Assessment Tool.” Id. It identified seven common problems in the first round of AFH submissions and, with little discussion, attributed each of them to deficiencies in the Tool. Id. at 23,924-25. For example, HUD observed that many jurisdictions failed to follow the AFFH Rule’s community participation requirements, with one jurisdiction giving the public only three days to comment on a draft AFH when the Rule requires at least 30. Id. at 23,924 (citing 24 C.F.R. § 91.105(b)(4)). HUD did not explain why such blatant failure to follow the regulatory text demonstrates that the Assessment Tool is so “unworkable” as to justify suspending the Rule.
30

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 31 of 73
96. HUD described the goals section as the most problematic, noting that this “was an issue in or the sole reason for the majority of initially non-accepted AFHs.” Id. at [p.11]. HUD failed to provide an explanation why it deemed this a failure of the Assessment Tool. As with the participation requirements, HUD also pointed to participant failures to initially follow basic directions provided in the Rule, Assessment Tool, and guidance, such as failing to provide metrics or to complete a provided chart. HUD did not explain why any of this was properly attributed to an “unworkable” Assessment Tool, nor why it could not be remedied with steps short of withdrawing the Assessment Tool and thus effectively suspending the AFFH Rule.
97. HUD also stated that it had “provided substantial technical assistance to this initial round of program participants, even for the AFHs that have been accepted.” 83 Fed. Reg. 23,925. It said it did not have the resources to provide the same level of assistance to the 104 local government participants scheduled to submit AFHs in 2018 and the 752 scheduled to submit in 2019. Id. To back up this assertion, HUD offered only that it “estimates that it has spent over $3.5 million on technical assistance.” Id. It did not provide any further detail regarding that estimate or explain its conclusion that such expenditures would scale up proportionally to the number of submissions rather than being fixed program costs (such as HUD’s regional trainings), or costs in large part incurred to generate training material for ongoing use. It asserted in conclusory fashion that it did not believe future submissions would benefit from “efficiency gains over time from experience working with the Tool,” 80 Fed. Reg. at 23,924, without attempting to support that conclusion.
98. HUD did not identify any legal authority permitting it, by withdrawing an already approved Assessment Tool without replacing it, to effectively suspend the requirement that
31

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 32 of 73
covered jurisdictions submit AFHs on a timeline corresponding with their next Consolidated Plan submission.
99. HUD did not identify any legal authority permitting it not to review already submitted AFHs, notwithstanding that the AFFH Rule requires HUD to undertake such reviews and make determinations on each submitted AFH. See 24 C.F.R. § 5.162(a).
100. HUD did not identify any legal authority permitting it to distribute federal housing funds based solely on a certification that a jurisdiction complied with the pre-AFFH Rule requirements, notwithstanding that the AFFH Rule bars HUD from approving a Consolidated Plan in the absence of an accepted AFH. See 24 C.F.R. § 5.162(d) (“If a program participant does not have an accepted AFH, HUD will disapprove a consolidated plan.”).
E. HUD’s Experience with the First Set of AFH Submissions Provided No Reason to Suspend the Rule.
101. Not only did HUD thus lack legal authority to suspend the AFFH Rule’s core requirements by withdrawing the Assessment Tool without replacing it, the evidence before it did not support this action. That some municipalities failed in their initial submissions to meet the Rule’s requirements reaffirms, rather than calls into question, why HUD thought the Rule necessary in the first place: left to their own devices, many municipalities will fail to take their obligations under the Fair Housing Act seriously. That they continue to need HUD enforcement and oversight is not a reason to remove such oversight, particularly where HUD, under Secretary Carson, has cut back on its technical assistance offerings to local jurisdictions and stopped issuing technical guidance to its own staff.
102. Even before promulgating the AFFH Rule, HUD began taking steps to prepare jurisdictions to comply with it. Since at least Fiscal Year 2012, Congress has appropriated
32

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 33 of 73
significant funds for HUD’s technical assistance efforts, and much of that money has been devoted to the implementation of the Affirmatively Furthering Fair Housing Rule.
103. HUD and its agents have designed regional, multi-day trainings delivered around the country for participating jurisdictions; drafted guidance on how to use the AFH tool; and answered questions submitted through the HUD Exchange website. At one point, HUD’s agents even provided direct, on-site assistance to multiple program participants. HUD staff prepared and published the AFFH Rule Guidebook, while HUD staff and the agency’s technical assistance contractors answered questions from program participants by phone or e-mail. Video trainings and additional fact sheets on issues such as public participation, regional assessments, and goal prioritization and formation are available on HUD’s website.
104. HUD’s willingness to deploy available technical resources to help jurisdictions formulate compliant AFHs changed in 2017, when HUD began to sow the bureaucratic seeds necessary to undermine or, to use Secretary Carson’s word, “re-interpret” the AFFH Rule. Despite funding appropriated by Congress for technical assistance and the availability of a highly trained team of technical assistance providers, HUD has willfully and systematically underutilized technical assistance resources available to it.
105. For example, HUD no longer permitted its contractors or staff to engage in on-site technical assistance. Additionally, HUD failed to publish further guidance and ceased to monitor and respond to questions about the AFFH Rule submitted through the HUD Exchange Ask-AQuestion portal.
106. In large part due to HUD’s own failure to assist them—as well as suspicion that HUD no longer has the will to enforce the AFFH Rule vigorously—some jurisdictions submitted inadequate AFHs that properly required rejection. Where HUD initially rejected an AFH, it often
33

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 34 of 73
did so because the jurisdiction failed to include even the basic components of a functional AFH. For example, municipalities whose AFHs were rejected ignored segregation in an entire section of their jurisdiction (notwithstanding maps that should have made such segregation obvious); failed to include any metrics or milestones to measure improvements in fair housing; failed to analyze the data HUD had provided to the jurisdiction; and/or failed to consider housing barriers for key constituents, such as persons residing in public housing. That jurisdictions failed to include basic components does not reasonably demonstrate a fundamental flaw in the Assessment Tool.
107. HUD’s description of the record before it when suspending the AFFH Rule’s requirements also is incomplete in a way that makes its analysis unreasonable. HUD focuses only on the additional work that HUD and local jurisdictions are required to do to implement the AFFH Rule and entirely ignores the Rule’s already evident benefits. Despite HUD’s less than robust efforts to make the Rule work, the AFH submissions it received before suspending the Rule demonstrate that, on balance, the Rule was vastly improving jurisdictions’ commitment to fair housing, which in turn was providing tangible benefits for individuals.
108. As HUD acknowledged, most of the 49 submissions it received cleared the high bar the AFFH Rule sets even in their first submission. Thus, 32 of the 49 jurisdictions were immediately on the path to finally meeting the Fair Housing Act’s requirements in exchange for the federal money they receive. HUD did not contend the Rule did not work for those jurisdictions, nor would such a contention be reasonable.
109. With respect to the 17 jurisdictions whose submissions it initially rejected, HUD paints a misleading picture by failing to acknowledge or consider relevant facts. Most of those 17 submissions that HUD initially rejected were improved through a collaborative process between
34

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 35 of 73
HUD and the jurisdictions, and all but a few of them have already been accepted after revision. One of those that has not—from the Hidalgo County Regional Consortium (Hidalgo County) in Texas—is described further in the next section regarding harm to Plaintiffs. That submission was deeply flawed and was properly rejected; HUD’s suspension of the AFFH Rule ended the process that would have improved it.
110. Accordingly, what HUD characterizes as a failure—that 17 submissions were initially rejected—is in fact a success, because those jurisdictions were properly required to improve their inadequate AFHs. This is precisely how the Rule was written to work: HUD review, individualized feedback, and AFH revision by participants are all explicitly contemplated. See 24 CFR §§ 5.162(a) and (b). After decades in which participants had operated without oversight, it was to be expected that many participants would need assistance to meet a new level of accountability. And by and large they have, eventually, met the challenge.
111. One study of the 28 AFHs submitted to HUD between October 2016 and July 2017 (that is, the majority of the 49 on which HUD based its decision) compared those submissions to the AIs previously prepared by the same participants, and found striking improvements. Whereas the AIs contained nebulous goals, the AFHs contained more concrete ones. See Justin Steil & Nicholas Kelly, Survival of the Fairest? An Analysis of Affirmatively Furthering Fair Housing Compliance (Sep. 15, 2017) (working paper for The Future of Housing Policy in the U.S. Conference, University of Pennsylvania), available at http://web.mit.edu/afs/athena.mit.edu/org/f/fairhousing/research/Steil_Kelly_Survival_of_Fairest
35

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 36 of 73
.pdf. In the past, most municipalities did not set a single goal that included a quantifiable metric of success or concrete policy to be enacted. Now, almost all did.5
112. For example, Paramount, California committed to making (by explicit deadlines) specific amendments to its zoning ordinance to make its housing more inclusive, such as allowing group homes for people with disabilities in residential zones. New Orleans, Louisiana promised to increase homeownership by Section 8 voucher recipients by 10 percent annually. Chester County, Pennsylvania committed to creating 200 new affordable rental units in high opportunity neighborhoods across the county by 2021. El Paso County, Colorado similarly promised to assist in the development of 100 publicly supported affordable housing units in areas of opportunity. All of these commitments can be monitored and their success measured.
113. A representative success story is the AFH which Philadelphia completed and HUD approved. In accordance with the AFFH Rule’s community participation requirements, Philadelphia conducted a survey in both English and Spanish (receiving more than 5,000 responses, including more than 900 from residents of high-poverty neighborhoods), conducted focus groups around the city, took comments on an initial (weak) draft AFH, and otherwise made far greater effort than it ever had to learn about barriers to fair housing in its own communities. The substantive results were striking. For example, the city’s final AFH identified widespread evictions in neighborhoods where predominantly racial minorities live as a substantial barrier to fair housing. It committed the city to taking concrete steps in response, including creating an “eviction prevention project” pursuant to which lawyers and advocates will represent those facing unjust eviction.
5 Submitted AFHs can be viewed at: https://furtheringfairhousing.mit.edu/assessment-fairhousing-city.
36

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 37 of 73
114. These outcomes are exactly the sort of concrete, locally driven commitments to fair housing that were rarely made under the AI regime and that the AFFH Rule was intended to promote, assist, and require. And they were made with greater community input, thanks to the AFFH Rule’s requirements in that regard. All utilized the Assessment Tool to arrive at these impressive outcomes.
115. One study, which was submitted to HUD in response to its call for comments on the suspension of the Rule, found that the AFH process in virtually all cases provided a greater level of public engagement than the AI process had. That meant, for example, more public meetings and notice provided in more places and media (as well as in more languages) to ensure that more members of the public were aware of the process and had the opportunity to participate. It also meant greater acknowledgment of public input in the AFH itself. For example, Nashville, Tennessee’s AFH spent 107 pages detailing public comments received and its response to them; it had devoted nine pages of its AI to such topics. See Furman Center Comment Letter, available at https://www.regulations.gov/document?D=HUD-2018-0001-0036 (last visited Apr. 26, 2018).
116. As HUD stated in the Final Rule, the extent to which the AFFH Rule increases burden on program participants was expected to depend on how seriously those jurisdictions took their AFFH obligations all along. See 80 Fed. Reg. at 42,273. HUD fully expected that those jurisdictions that had flouted their obligations for years would face some increased burden when finally made to comply. It estimated that participating jurisdictions overall would incur compliance costs of about $25 million, while HUD itself would incur about $9 million in resource costs. Id. In its May Notices, HUD cited its estimate that it has spent $3.5 million so far
37

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 38 of 73
as evidence that the Assessment Tool is “unworkable,” but it did not offer any basis to conclude that the amount was unreasonable or unexpected.
117. HUD also ignored that jurisdictions already have learned from the successes and failures of the first submitters and will continue to do so. Many of the first accepted AFHs have become models for other jurisdictions to follow—as those which have not been accepted have become models for what not to do; any extra time and resources that may have gone into formulating and reviewing them will not necessarily be required with respect to future submissions. HUD’s conclusory statement that “efficiency gains over time from experience working with the Tool would be unlikely to address HUD’s concerns,” 83 Fed. Reg. 23,924, is unsupported by the record.
F. HUD’s Action Will Harm Plaintiffs If Not Enjoined 118. Defendants’ unlawful actions have caused Plaintiffs to suffer irreparable and ongoing injury for which there is no adequate remedy at law. These unlawful actions will continue to cause injury to Plaintiffs unless and until injunctive relief is granted. Defendants’ suspension of the AFFH Rule’s core requirements is frustrating Plaintiffs’ missions. In response, Texas Appleseed and Texas Housers (Texas Plaintiffs) have had to divert resources they were planning to devote to other activities critical to their missions to remedying the effects of Defendants’ action in municipalities around Texas. NFHA, meanwhile, has had to divert resources to assisting its members around the country in similar efforts to combat the effects of Defendants’ action.
1. Harm to Texas Plaintiffs 119. Both Texas Plaintiffs contributed to the development of the AFFH Rule (including by submitting comments) and have devoted considerable resources to ensuring that it
38

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 39 of 73
is implemented properly in Texas. They have relied heavily on the AFH Rule’s requirements, which ensure that local jurisdictions take fair housing seriously rather than continuing to perpetuate the patterns of residential racial segregation and discriminatory use of federal funds that historically have plagued much of Texas.
120. For example, since 2008, the Texas Plaintiffs have devoted substantial time and resources (including filing multiple complaints with HUD) to requiring state and local governments to spend federal disaster relief money in ways that are non-discriminatory and affirmatively further fair housing. They have played a large role in the creation of an AI for the State of Texas that requires specific steps to address disaster relief discrimination, including training for local grantees and a commitment to spend disaster recovery money in certain ways. They also have developed, with the State of Texas, a form for local jurisdictions to use to assess and report their compliance with AFFH requirements with respect to the use of disaster relief money and have closely monitored local jurisdictions’ compliance.
121. Since the AFFH Rule’s promulgation, the Texas Plaintiffs have devoted resources to the development of effective AFHs in a number of communities and regions. In particular, they have provided substantial input into the development of municipal AFHs in Fort Worth, Corpus Christi, and League City. They also have helped organize community members and assisted in the development of a regional AFH in the Hidalgo County region, covering 19 jurisdictions and housing authorities. They have spent thousands of dollars in staff time and resources in various Texas communities, providing public education to municipalities, planners, and attorneys. These efforts have begun to pay dividends in large part because of specific protections that the AFFH Rule provides. HUD’s suspension of the Rule’s requirements, if not
39

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 40 of 73
enjoined, will frustrate Texas Plaintiffs’ efforts to ensure fair housing in the communities they serve.
122. The efforts of the Texas Plaintiffs, combined with the AFFH Rule’s protections, have substantially increased the degree of public participation in each community’s AFH process. The AFFH Rule’s requirements have amplified the ability of individuals, grassroots groups, and advocacy groups like Texas Plaintiffs to identify, publicly articulate, and force jurisdictions to grapple with local fair housing problems that previously went unaddressed. If HUD’s suspension of the Rule’s requirements is not enjoined, Texas Plaintiffs will be required to repeat and redouble their efforts to ensure fair housing in the communities they serve, because there will be no AFH process in which such local input must be considered, nor any process by which HUD will review the AFH and determine whether it complies with the AFFH Rule’s procedural and substantive requirements.
123. As one illustration, the Texas Plaintiffs devoted substantial resources to ensuring that, when Hidalgo County prepared its AFH (as one of the first AFH submitters in Texas), community participation was more robust. Among other things, they prepared a lengthy comment letter advising County officials to provide multiple forums in which interested residents could participate, ensured that materials were prepared in Spanish, and saw to it that notice and opportunity to participate was given to the predominantly Latino population living in “colonias,” i.e., plots of land outside incorporated cities that often lack infrastructure such as water, sewage, electricity, and paved roads. Hidalgo County historically has ignored the needs of the people living there (even as it takes federal funds and certifies AFFH compliance), but the AFFH Rule’s requirements provide a mechanism for the Texas Plaintiffs to force the county to consider those needs.
40

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 41 of 73
124. The AFH that Hidalgo County submitted to HUD in 2017 nonetheless was deficient. It failed, among other things, to grapple with the publicly stated needs of colonias residents or to engage with the comments Texas Plaintiffs and others provided. Texas Plaintiffs sent HUD a letter alerting the agency to these problems, and on December 12, 2017, HUD rejected the submitted AFH, requiring the County to submit a revised one by March 12, 2018. Hidalgo County’s AFH thus is one of the 17 initially rejected submissions upon which HUD relies as a reason to suspend the Rule.
125. Relying on the AFFH Rule’s requirements, Texas Plaintiffs spent thousands of dollars in staff time, materials, and other resources to create the conditions under which fair housing finally could come to Hidalgo County. Just when those efforts seemed to be bearing fruit—with HUD rejecting the County’s initial submission and requiring it to prepare a revised submission that reflects an effort to, finally, take its AFFH obligations seriously—HUD’s action endangers this progress. Now HUD will not require Hidalgo County to submit an AFH that meets the AFFH Rule’s requirements, although it already has found that Hidalgo County has not made a sufficient commitment to affirmatively further fair housing.
126. HUD’s abdication of its statutory responsibility, if not enjoined, will require Texas Housers and Texas Appleseed to expend considerable additional resources to bring fair housing to Hidalgo County without HUD’s assistance and without the benefit of the public participation requirement embedded in the AFFH Rule. The County, no longer needing HUD approval, now has no incentive to meaningfully improve its rejected AFH or otherwise address the housing needs that have plagued many of its residents for too long. Indeed, the County has told Texas Plaintiffs that it has no intention of remedying the deficiencies from its rejected AFH now that HUD will not require it to do so. That means that Texas Plaintiffs will have to expend
41

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 42 of 73
considerable resources making fair housing a reality in Hidalgo County that they would not have to expend if HUD were enforcing the requirements of the AFFH Rule.
127. Similarly, in the City of Corpus Christi, which also had an AFH due on January 4, 2018, the Texas Plaintiffs expended substantial staff time and out-of-pocket expenses consulting extensively with local advocates, encouraged HUD to offer the City an extension of time to incorporate changes based on the devastating impact of Hurricane Harvey on the City and surrounding region, and submitted comments on the AFH. The City declined the extension and submitted an AFH that barely acknowledged massive housing loss, extended displacement, and infrastructure impacts caused by one of the costliest disasters in U.S. history. Because of HUD’s unlawful suspension of the AFFH Rule, HUD will not review that defective AFH, leaving the City with no obligation to improve it and no incentive otherwise to make concrete plans to address fair housing concerns in disaster relief. The Texas Plaintiffs therefore will have to expend considerable resources trying to make fair housing a reality in Corpus Christi, including by monitoring the use of hundreds of millions of dollars in federal disaster relief money that will be flowing to the region. These activities will require considerably more effort and expenditure of resources than if HUD had not suspended the AFFH Rule.
128. Meanwhile, with Fort Worth’s AFH coming due, Texas Housers hired an employee, set up an office in that city, engaged in discussion with community leaders and municipal employees, and otherwise devoted considerable resources to laying the groundwork for the development and then implementation of an AFH that would make fair housing in Fort Worth, finally, a reality. Just as it was nearly time for Fort Worth to submit a draft to HUD, HUD announced that it would no longer accept or review AFHs. As a consequence, Fort Worth decided not to complete an AFH. Rather, it will rely on the former AI process to support its
42

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 43 of 73
claim that it has met its AFFH obligations. Texas Housers thus will have to devote still more resources in Fort Worth to sustain or recreate a climate and process in which community members and city officials are able to air their significant concerns about segregation and unequal access to opportunity for families of color. It also will have to spend more resources, in the absence of HUD review, monitoring Fort Worth’s use of federal funds to ensure compliance with federal law. Those are resources it would not have to expend if HUD continued to enforce the AFFH Rule.
129. The Texas Plaintiffs will continue to work to promote fair housing in those two municipalities and elsewhere in Texas, but they have lost the benefit of the AFFH Rule’s requirements, pursuant to which municipalities must consult with them at regular intervals, must review and engage with their comments and concerns, must reach out to community members, and more. They also have lost the benefit of HUD review of submitted AFHs (and the Texas Plaintiffs’ comments on them), along with the prospect of HUD non-acceptance of AFHs that inadequately assess fair housing conditions and/or fail to commit to concrete solutions. These consequences of HUD’s action frustrate Texas Plaintiffs’ mission of achieving fair housing for the communities they serve.
130. Texas Plaintiffs have taken or will take many specific actions to counter the effects of HUD’s suspension of the AFH submission requirement and convince local government program participants to nonetheless take their fair housing obligations seriously. Such actions include:
 Producing a video to educate the public (including affected grantees) about the impact of the Rule and grantees’ continuing obligation to affirmatively further fair housing notwithstanding HUD’s action;
43

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 44 of 73
 Developing a fact sheet for advocates statewide on the effect of HUD’s action;  Responding to continuing requests for information and resources;  Engaging in ongoing public education efforts, including community forums on fair
housing in Amarillo and Fort Worth; meeting with Hidalgo County; writing advocacy pieces; and advising attorneys, community groups, and consultants working on nowsuspended AFHs on the impact of HUD’s suspension of the AFH submission requirement on ongoing fair housing obligations; and  Writing letters to the 65 most immediately impacted jurisdictions regarding their continued obligation to affirmatively further fair housing, an in-process action which by itself will take about 120 hours of staff time. 131. The Texas Plaintiffs have had to divert resources in many other ways to ensure that the interest in fair housing that the AFFH Rule created is not lost while the Rule’s core requirements are suspended. For example, Texas Housers’ staff continues to meet on a regular basis with community groups in Hidalgo County, to keep them engaged in long-term efforts to secure additional housing and community development resources for the colonias and otherwise combat discrimination on the basis of national origin. Texas Housers also continues to invest resources in educating grassroots groups in Hidalgo County about their rights to equitable flood drainage, the need to reform subdivision rules, and the rights of non-English speakers to receive information about public programs in a language and format they can understand. Without the focused AFH process that provides a specific forum for articulating these grassroots concerns at specific times—and requires the County to listen to and address them—these efforts are much more inefficient, requiring far more of Texas Housers’ time and achieving less tangible results.
44

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 45 of 73
132. HUD’s unlawful suspension of the AFH process has greatly undermined Texas Plaintiffs’ ability to accomplish their missions and is making them divert resources to activities they would not otherwise have engaged in, just to get to an inferior result. Because of HUD’s action, Texas Plaintiffs have diverted their resources and will continue to divert their resources to educating funding recipients and community members that jurisdictions still must comply with the AFFH statutory requirements notwithstanding HUD’s refusal to enforce them. They consequently have had to cut back on important activities they would be pursuing if not for HUD’s suspension of the AFFH Rule’s requirements.
133. For example, Texas Plaintiffs have had to substantially curtail their grassroots outreach, education, and policy and legal support in Houston and surrounding areas recovering from the effects of Hurricane Harvey. If not for their need to counteract the effects of HUD’s action, Texas Plaintiffs would be deeply engaged in research, data analysis, policy and legal support, and public education concerning various recovery issues, including State and municipal compliance with civil rights obligations associated with federal disaster recovery funding programs and the effectiveness and efficiency of State and municipal programs offering disaster recovery services and supports to low-income families.
134. Counteracting the effects of HUD’s unlawful action also limits the Texas Plaintiffs’ ability to engage in outreach and education for low-income families in places like Beaumont and Port Arthur, where low-income families are disproportionately exposed to environmental hazards that cause persistent health problems, as well as in Amarillo, where Texas Plaintiffs had begun to meet with community groups to talk about fair housing problems and develop advocacy strategies, but now must suspend such efforts.
45

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 46 of 73
135. Texas Appleseed has also been required to divert the time of the head of its Disaster Recovery and Fair Housing Project away from developing a project to protect land rights of African Americans who own “heir property,” i.e., land that has been passed down informally from generation to generation without recorded transactions—complicating, among other things, eligibility for federal benefits for disaster recovery—and from providing input on the revision of the zoning code in Austin, Texas, to address patterns of segregation and access to opportunity in that city. Other organizational representatives have diverted resources away from fundraising and other programmatic work to assist with these projects and to address various other capacity issues caused by the shift in focus relating to HUD’s suspension of the AFH process.
2. Harm to NFHA 136. The Texas-specific harm being suffered by the Texas Plaintiffs is representative of the harm that NFHA and its members are suffering around the country. 137. NFHA is a non-profit corporation dedicated to ending discrimination in housing. NFHA works to ensure equal housing opportunity for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy, community development, investigation of fair housing violations, and enforcement. Its mission is being frustrated by HUD’s unlawful decision to suspend the AFFH Rule’s requirements. To counteract the effects of HUD’s action, NFHA has been forced to divert resources away from other important projects. 138. Since the late 1980s, NFHA has worked to encourage HUD to do more to implement and enforce the Fair Housing Act’s requirement that recipients of federal funds affirmatively further fair housing. Among other things, it has long called on HUD to enact
46

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 47 of 73
procedures that ensure AFFH compliance. When HUD has been unwilling to effectively enforce the AFFH requirement, NFHA has had to expend resources in its stead.
139. When HUD modified the Analysis of Impediments process in 1995 and issued the Fair Housing Planning Guide in 1996, NFHA was intimately involved with the implementation of the AI process on the ground. Among other things, it trained its members and worked with them locally to develop AIs; held educational sessions at conferences; and helped HUD identify key fair housing issues that funding recipients should address in their AIs.
140. In 2001, NFHA developed and disseminated a template for developing AIs, because HUD’s Fair Housing Planning Guide had proven inadequate for that task. NFHA’s template was widely distributed and used nationally.
141. NFHA and its members have played a key role in the development and implementation of local AIs across the country.
142. Based on its experience with the failed AI process, NFHA was one of the leading advocates pushing for the creation of the AFFH Rule to replace it. Along with partners, NFHA created and supported the National Commission on Fair Housing and Equal Opportunity. This Commission conducted five public hearings and gathered evidence regarding, among other things, HUD’s progress in implementing the AFFH obligation. Its report, published in 2008, concluded that “[t]he current federal system for ensuring fair housing compliance by state and local recipients of housing assistance has failed” and recommended many specific changes. National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008), available at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf.
47

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 48 of 73
143. NFHA devoted considerable resources to assisting HUD with developing the AFFH Rule. Among other things, it participated in HUD’s public hearings and submitted written comments on the proposed AFFH Rule itself and the AFH template.
144. Once HUD issued the final AFFH Rule, NFHA and its members worked in local communities across the country to generate effective community participation and substantive provisions in AFHs that would make meaningful differences to communities. NFHA members have actively participated in the AFH planning process in many jurisdictions, with NFHA providing resources, guidance, and strategic help. NFHA has posted on its website an extensive list of AFFH resources and materials to assist its members and the grantees themselves.
145. HUD’s action, if not enjoined, will diminish the benefits that NFHA derives from all this work already done and will frustrate the accomplishment of NFHA’s mission. NFHA engages in a variety of activities aimed at advancing fair housing priorities around the country. The AFFH Rule’s requirements, when in effect, make NFHA’s efforts more efficient and effective. Not only does the Rule provide NFHA and its members greater ability to ensure that fair housing considerations are included in municipal planning decisions, but its standardized process and formalized rules make it much simpler for NFHA to advise and assist its members in effectively engaging at the local level. HUD now has removed those regulatory benefits, directly harming NFHA’s ability to achieve fair housing and help its members to do the same.
146. HUD’s abrupt suspension of the AFFH Rule’s requirements has required NFHA to divert resources to educating and counseling its members, civil rights organizations, and affordable housing stakeholders about HUD’s action and how to achieve fair housing locally under much more challenging circumstances. Such diversion will continue unless and until HUD’s action is enjoined.
48

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 49 of 73
147. Because of NFHA’s long-standing commitment to and expertise regarding the AFFH statutory obligation (before and after the promulgation of the AFFH Rule), its members and other civil rights and affordable housing stakeholders look to it for education and counseling regarding HUD’s notice and how to promote effective fair housing planning without the AFFH Rule’s protections. NFHA is expending considerable financial and human resources on this education and counseling.
148. For example, NFHA staff gave presentations concerning the notice and its effects to the Leadership Conference on Civil and Human Rights Fair Housing and Fair Lending Taskforce; Americans for Financial Reform Housing and Foreclosure Working Group; and the Affirmatively Furthering Fair Housing Working Group of NFHA’s members.
149. NFHA staff members have begun developing a comprehensive side-by-side analysis of the differences between the AFH and AI processes for use in educating and counseling its members. NFHA will disseminate this document to its members upon its completion and will expend further resources continuing to update it.
150. NFHA has engaged in and will need to continue to engage in individualized counseling regarding HUD’s action with its members located in strategic areas throughout the country. These efforts, which already have required considerable staff time, have been necessary and will continue to be necessary to educate members about the notice’s impact and the most effective means for ensuring effective fair housing planning without the AFFH Rule’s protections. NFHA has had to identify those areas most immediately affected by HUD’s actions, such as where local government program participants submitted AFHs prior to January 5 but did not receive HUD’s acceptance of their submissions, and then conduct outreach to its members
49

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 50 of 73
and other allied local civil rights and affordable housing advocates operating in those jurisdictions.
151. The amount of resources that NFHA must divert to such activities will increase in the coming months, because most local government program participants would have had AFHs due in the next two years pursuant to the AFFH Rule. Hundreds of local governments in the coming months will have to determine whether to use the Assessment Tool (though it is “officially” withdrawn) to fulfill their AI obligations prior to developing their Consolidated Plans, and whether they will adhere to the AFFH Rule’s timeline and procedural protections. NFHA will have to continue to divert resources from its planned operations to helping these jurisdictions, its members, and other civil rights and affordable housing groups further fair housing in these uncertain circumstances. And it will not be able to do so in such a targeted way, because of the much larger number of jurisdictions at issue.
152. In the absence of HUD oversight, NFHA is preparing to devote substantial resources to outreach, public education, and advocacy to assist its members and community groups working to ensure that jurisdictions formulate AIs that are robust as possible (given the circumstances) and then monitoring compliance. Through this work, NFHA plans to blunt, as best it can, the negative impact of HUD’s action. It will have to devote resources to assisting its members and others with respect to monitoring and enforcing AFFH compliance in the absence of effective monitoring and enforcement by HUD. NFHA would not have to devote nearly the same level of resources to such tasks with the AFFH Rule in place.
153. As a result of HUD’s action, funding recipients that already were at work on assessments—many of which would have been due not much more than a year from now—have
50

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 51 of 73
halted their work. Accordingly, NFHA and its members will face a more onerous task in helping these jurisdictions develop effective AFHs after the lengthy period of delay.
CAUSES OF ACTION First Cause of Action Administrative Procedure Act – Agency Action Taken Without Observance of Procedure
Required by Law 154. The APA empowers this Court to hold unlawful and set aside agency actions taken “without observance of procedure required by law.” 5 U.S.C § 706(2)(D). 155. Without following notice-and-comment procedure, HUD has suspended indefinitely the AFH process required by the properly promulgated AFFH Rule. 156. Without notice-and-comment procedure, HUD has reinstated the AI process that was superseded by the AFFH Rule and does not exist in current regulation. 157. Without notice-and-comment procedure, HUD has suspended all the subsidiary requirements of the AFH process, including the AFFH Rule’s community participation procedural rules, by instructing participating local governments to not use the Assessment Tool and to revert to the AI process. 158. Without notice-and-comment procedure, HUD has suspended the requirement of the AFFH Rule that jurisdictions certify that they meet the Rule’s definition of affirmatively furthering fair housing and has suspended the requirement that jurisdictions meet the fair housing requirements that the AFFH Rule added to the Consolidated Plan process as a condition of receipt of federal funds. 159. Pursuant to the APA, HUD was required to undertake notice-and-comment rulemaking to revise the AFFH Rule, including changing the dates on which jurisdictions are required to submit their first AFHs for HUD review.
51

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 52 of 73
160. By failing to engage in notice-and-comment rulemaking before taking the actions described above, HUD failed to observe procedures required by law, in contravention of the APA.
Second Cause of Action Administrative Procedure Act – Agency Action That is Arbitrary, Capricious, or an Abuse
of Discretion 161. The APA empowers this Court to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law.” 5 U.S.C. § 706(2)(A). 162. HUD withdrew the Assessment Tool, thus effectively suspending the AFFH Rule’s requirements, based on its conclusion that the Assessment Tool had proved to be “unworkable.” HUD failed to justify this conclusion based on facts in the record. In particular, it did not adequately explain why any concerns it had with respect to initial non-acceptance of submitted AFHs were attributable to the Tool, as opposed to local governments failing to follow clear requirements. 163. HUD stated that it had expended too many resources assisting the 49 jurisdictions that had submitted AFHs, such that it could not scale those expenditures to assist the greater number of jurisdictions due to submit AFHs in 2018. In support, it offered only the conclusory assertion that it had expended $3.5 million on the AFFH Rule so far. HUD failed to support its conclusion that the $3.5 million it expended so far indicates that its expenditures will be substantially higher in future years. 164. HUD offered no explanation as to why it chose the drastic remedy of withdrawing the Assessment Tool without replacing it. HUD failed to consider less disruptive alternatives, such as formulating additional technical assistance documents that clarified points of confusion,
52

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 53 of 73
and did not explain why it cannot improve the Assessment Tool while the existing tool is in effect, as it has done before.
165. HUD’s reasoning ignores key evidence that was before the agency and improperly focuses on what the agency now perceives to be the Rule’s costs without considering the benefits flowing from the Rule.
166. HUD’s reasoning fails to acknowledge that almost all jurisdictions participating in the process so far have successfully submitted compliant AFHs, either on first submission or after work with HUD. It fails to acknowledge that these AFHs contain far more concrete, measurable commitments to further fair housing than were in the AIs prepared by the same jurisdictions.
167. HUD has not explained why it is acceptable to return to the AI regime that, as the agency itself has found, does not work. It did not acknowledge its own findings in promulgating the Rule regarding the ineffectiveness of the AI regime.
168. HUD’s withdrawal of the Assessment Tool and instruction to participants to revert to the AI process are arbitrary, capricious, or an abuse of discretion, in contravention of the APA.
Third Cause of Action Administrative Procedure Act – Agency Action Not in Accordance with Law 169. The APA empowers this Court to set aside an agency action that is “not in accordance with law.” 5 U.S.C. 706(2)(A). 170. In promulgating the AFFH Rule, HUD found that it needed a new and robust approach to ensuring that local governments and other grantees take actions that meet their obligations under the Fair Housing Act as recipients of federal housing funds. HUD found that its previous practices had not been effective in leading to meaningful action regarding segregation, concentrated poverty, disparities in access to community assets, and other problems
53

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 54 of 73
that the Fair Housing Act requires funding recipients to address. It adopted the AFFH Rule to bring its own practices and its grantees’ practices into compliance with the statutory requirement. 80 Fed. Reg. at 42,275.
171. HUD has an affirmative obligation under the Fair Housing Act to ensure that federal housing programs are administered, and federal housing funds spent, in a manner that furthers fair housing. The AFFH obligation requires both addressing actions that are actively discriminatory and taking affirmative steps to overcome barriers to fair housing choice that, in many cases, are the products of long-standing structural and institutional racism. 42 U.S.C. §§ 3608(d), (e)(5). As HUD has stated, where a program participant “has the ability to create opportunities outside of the segregated, low-income areas but declines to do so,” that raises a serious question as to whether the participant is meeting its obligation to affirmatively further fair housing. 80 Fed Reg. 42279. HUD is now making a comparable decision.
172. In suspending core provisions of the AFFH Rule, HUD abdicated its statutory responsibilities. It now is once again distributing federal housing funds without ensuring that local government grantees take the steps necessary to comply with their obligation to affirmatively further fair housing.
173. HUD’s effective suspension of the AFFH Rule violates the Fair Housing Act, in contravention of the APA.
54

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 55 of 73
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
(a) Enter a declaratory judgment that HUD’s May 23, 2018 decision to withdraw its
current Assessment Tool without replacing it, and to instruct participating local governments
to revert to the AI process is arbitrary, capricious, an abuse of discretion or contrary to law,
and without observance of procedure required by law;
(b) Issue preliminary and permanent injunctions requiring HUD to rescind its two
May 23, 2018 notices withdrawing the Assessment Tool and directing local governments to
revert to the pre-AFFH Rule process, and requiring HUD to timely implement and enforce all
the requirements of the AFFH Rule going forward;
(c) Direct HUD to take all affirmative steps necessary to remedy the effects of the
illegal conduct described herein and to prevent similar occurrences in the future;
(d) Award Plaintiffs their reasonable attorneys’ fees and costs; and
(e) Order such other relief as this Court deems just and equitable.
Dated: May 29, 2018
Respectfully submitted,
/s/ Sasha Samberg-Champion Sasha Samberg-Champion (DC Bar No. 981553) Sara Pratt (DC bar admission pending, admitted pro hac vice) Michael G. Allen (DC Bar No. 409068) RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 Phone: (202) 728-1888 Fax: (202) 728-0848 ssamberg-champion@relmanlaw.com spratt@relmanlaw.com
55

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 56 of 73
mallen@relmanlaw.com
Jon Greenbaum (DC Bar No. 489887) Joseph D. Rich (DC Bar No. 463885) Thomas Silverstein (DC Bar No. 1552406) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Washington, DC 20005 (202) 662-8331 jrich@lawyerscommittee.org
Philip Tegeler (DC Bar No. 1002526) Megan Haberle (DC bar admission pending) POVERTY & RACE RESEARCH ACTION COUNCIL 740 15th Street NW, Suite 300 Washington, DC 20005 (202) 360-3906 ptegeler@prrac.org
Rachel Goodman Sandra Park AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2500 rgoodman@aclu.org spark@aclu.org
Arthur B. Spitzer (DC Bar No. 235960) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW - 2nd floor Washington, DC 20005-2302 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org
Ajmel Quereshi (DC Bar No. 1012205) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 (202) 682-1300 aquereshi@naacpldf.org
56

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 57 of 73
Sherrilyn A. Ifill Samuel Spital NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Allison M. Zieve (DC Bar No. 424786) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 (202) 588-1000
Attorneys for all Plaintiffs
Morgan Williams (pro hac vice application forthcoming) NATIONAL FAIR HOUSING ALLIANCE 1101 Vermont Ave. NW, Suite 710 Washington, DC 20005 (202) 898-1661 mwilliams@nationalfairhousing.org
Attorney for Plaintiff National Fair Housing Alliance
Madison Sloan (admitted pro hac vice) TEXAS APPLESEED 1609 Shoal Creek Bld. # 201 Austin, TX 78701 (512) 473-2800 msloan@texasappleseed.net
Attorney for Plaintiff Texas Appleseed
57

CasCea1s:e181-:c1v8--0c1v0-07160-B76AHDoDcoucmuemnetn1t 1F8ileFdil0e5d/085/1289/1P8agPea5g7e o5f86o0f 73
EXHIBIT A

CasCea1s:e181-:c1v8--0c1v0-07160-B76AHDoDcoucmuemnetn1t 1F8ileFdil0e5d/085/1289/1P8agPea5g8e o5f96o0f 73

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

683

Contact Person: Donald Scott Wright, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5108, MSC 7854, Bethesda, MD 20892, (301) 435– 8363, wrightds@csr.nih.gov.
Name of Committee: Vascular and Hematology Integrated Review Group, Hypertension and Microcirculation Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: Hilton Garden Inn Orlando East UCF, 1959 N. Alafaya Trail, Orlando, FL 32822. Contact Person: Ai-Ping Zou, M.D., Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4118, MSC 7814, Bethesda, MD 20892, 301–408– 9497, zouai@mail.nih.gov.
Name of Committee: Endocrinology, Metabolism, Nutrition and Reproductive Sciences Integrated Review Group, Integrative Nutrition and Metabolic Processes Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 1:00 p.m. Agenda: To review and evaluate grant applications. Place: Westin Grand, 2350 M Street NW, Washington, DC 20037. Contact Person: Gregory S Shelness, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6156, Bethesda, MD 20892–7892, 301–755–4335, greg.shelness@nih.gov.
Name of Committee: Bioengineering Sciences & Technologies Integrated Review Group, Nanotechnology Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: Baltimore Marriott Waterfront, 700 Aliceanna Street, Baltimore, MD 21202. Contact Person: James J Li, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5148, MSC 7849, Bethesda, MD 20892, 301–806–8065, lijames@csr.nih.gov.
Name of Committee: Molecular, Cellular and Developmental Neuroscience Integrated Review Group, Cellular and Molecular Biology of Glia Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: St. Gregory Hotel, 2033 M Street NW, Washington, DC 20036. Contact Person: Linda MacArthur, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4187, Bethesda, MD 20892, 301–537–9986, macarthurlh@csr.nih.gov.
Name of Committee: Integrative, Functional and Cognitive Neuroscience Integrated Review Group, Auditory System Study Section.
Date: February 8–9, 2018.

Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: The Westgate Hotel, 1055 Second Avenue, San Diego, CA 92101. Contact Person: Ying-Yee Kong, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5185, Bethesda, MD 20892, ying-yee.kong@nih.gov.
Name of Committee: Emerging Technologies and Training Neurosciences Integrated Review Group, Neuroscience and Ophthalmic Imaging Technologies Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant applications. Place: Renaissance Washington, DC Downtown Hotel, 999 Ninth Street, Washington, DC 20001. Contact Person: Yvonne Bennett, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5199, MSC 7846, Bethesda, MD 20892, 301–379– 3793, bennetty@csr.nih.gov.
Name of Committee: Risk, Prevention and Health Behavior Integrated Review Group, Behavioral Medicine, Interventions and Outcomes Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 6:00 p.m. Agenda: To review and evaluate grant applications. Place: Doubletree Guest Suites Santa Monica, 1707 Fourth Street, Santa Monica, CA 90401. Contact Person: Lee S Mann, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 3224, MSC 7808, Bethesda, MD 20892, 301–435– 0677, mannl@csr.nih.gov.
Name of Committee: Musculoskeletal, Oral and Skin Sciences Integrated Review Group, Skeletal Biology Development and Disease Study Section.
Date: February 8–9, 2018. Time: 8:00 a.m. to 3:00 p.m. Agenda: To review and evaluate grant applications. Place: Westin Baltimore Washington Airport, 1100 Old Elkridge Landing Road, Linthicum Heights, MD 21090. Contact Person: Aruna K Behera, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4211, MSC 7814, Bethesda, MD 20892, 301–435– 6809, beheraak@csr.nih.gov.
Name of Committee: Molecular, Cellular and Developmental Neuroscience Integrated Review Group, Cellular and Molecular Biology of Neurodegeneration Study Section.
Date: February 8–9, 2018. Time: 8:30 a.m. to 4:00 p.m. Agenda: To review and evaluate grant applications. Place: SpringHill Suites San Diego Downtown/Bayfront, 900 Bayfront Court, San Diego, CA 92101. Contact Person: Laurent Taupenot, Ph.D., Scientific Review Officer, Center for

Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4183, MSC 7850, Bethesda, MD 20892, 301–435– 1203, taupenol@csr.nih.gov.
Name of Committee: Center for Scientific Review Special Emphasis Panel, Integrative Nutrition and Metabolic Processes.
Date: February 8, 2018. Time: 1:30 p.m. to 2:30 p.m. Agenda: To review and evaluate grant applications. Place: Westin Grand, 2350 M Street NW, Washington, DC 20037. Contact Person: Gary Hunnicutt, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6164, MSC 7892, Bethesda, MD 20892, 301–435– 0229, hunnicuttgr@csr.nih.gov.
(Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393–93.396, 93.837–93.844, 93.846–93.878, 93.892, 93.893, National Institutes of Health, HHS).
Dated: December 29, 2017.
Anna Snouffer,
Deputy Director, Office of Federal Advisory Committee Policy.
[FR Doc. 2018–00052 Filed 1–4–18; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–15]
Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice.
SUMMARY: This notice advises that HUD is extending the deadline for submission of an Assessment of Fair Housing (AFH) by local government consolidated plan program participants to their next AFH submission date that falls after October 31, 2020. Such program participants will not be required to submit an AFH using the current Office of Management and Budget (OMB)-approved version of the Assessment of Fair Housing Tool for Local Governments (OMB Control No: 2529–0054), but must continue to comply with existing obligations to affirmatively further fair housing. Local government program participants that have already submitted an AFH that has been accepted by HUD must continue to execute the goals of that AFH. DATES:
Applicability Date: January 5, 2018. Comment Due Date: March 6, 2018.

CasCea1s:e181-:c1v8--0c1v0-07160-B76AHDoDcoucmuemnetn1t 1F8ileFdil0e5d/085/1289/1P8agPea5g9e o6f06o0f 73

684

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

ADDRESSES: Interested persons are invited to submit comments responsive to this notice to the Office of General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410–0001. All submissions should refer to the above docket number and title. Submission of public comments may be carried out by hard copy or electronic submission.
1. Submission of Hard Copy Comments. Comments may be submitted by mail or hand delivery. Each commenter submitting hard copy comments, by mail or hand delivery, should submit comments to the address above, addressed to the attention of the Regulations Division. Due to security measures at all federal agencies, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that any comments submitted by mail be submitted at least 2 weeks in advance of the public comment deadline. All hard copy comments received by mail or hand delivery are a part of the public record and will be posted to http:// www.regulations.gov without change.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make comments immediately available to the public. Comments submitted electronically through the http://www.regulations.gov website can be viewed by other commenters and interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Comments. All comments submitted to HUD regarding this notice will be available, without charge, for public inspection and copying between 8 a.m. and 5 p.m., Eastern Time, weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202–708– 3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the Federal Relay Service at 800–877–8339 (this is

a toll-free number). Copies of all comments submitted are available for inspection and downloading at http:// www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, at 80 FR 42357, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule. The AFFH final rule provides HUD program participants with a new approach for planning for fair housing outcomes that will assist them in meeting their statutory obligation to affirmatively further fair housing as required by the Fair Housing Act, 42 U.S.C. 3608. To assist HUD program participants in meeting this obligation, the AFFH rule provides that program participants must conduct an Assessment of Fair Housing (AFH) using an ‘‘Assessment Tool.’’ HUD’s AFFH regulations provide for a staggered AFH submission deadline for its program participants. (See 24 CFR 5.160.)
On October 24, 2016, at 81 FR 73129, HUD published a notice extending the deadline for submission of an AFH for local government consolidated plan participants that received in Fiscal Year (FY) 2015, or receive in a subsequent fiscal year, a CDBG grant of $500,000 or less, or in the case of a HOME consortium, whose members collectively received a CDBG grant of $500,000 or less, from the program year that begins on or after January 1, 2018, to the program year that begins on or after January 1, 2019 for which a new consolidated plan is due. By notice published in the Federal Register on January 13, 2017, at 82 FR 4388, HUD announced the renewal of approval of the Assessment Tool for use by local governments that receive Community Development Block Grants (CDBG), HOME Investment Partnerships Program (HOME), Emergency Solutions Grants (ESG), or Housing Opportunities for Persons With AIDS (HOPWA) formula funding from HUD when conducting and submitting their own AFH, and in some joint and regional collaborations,

as explained in that notice. This Assessment Tool is referred to as the Assessment of Fair Housing Tool for Local Governments.
This notice extends the deadline for submission of an Assessment of Fair Housing (AFH) to all local government consolidated plan program participants until their next AFH submission deadline that falls after October 31, 2020. (See 24 CFR 5.160(a) for information about how to calculate a program participant’s AFH submission deadline.) The AFFH rule requires that program participants have no less than 9 months after the publication of the OMB-approved assessment tool to submit their AFH. Therefore, the Department selected the October 31, 2020 date in anticipation that it will complete the Paperwork Reduction Act requirements and receive OMB approval to renew the Assessment of Fair Housing Tool for Local Governments by January 31, 2020. Local government program participants will not be required to submit an AFH using the current OMB-approved version of the Assessment of Fair Housing Tool for Local Governments (OMB Control No: 2529–0054), but must continue to comply with existing statutory obligations to affirmatively further fair housing. (See 42 U.S.C. 3608.) Local government program participants who qualified for an extension under the October 24, 2016 notice are also covered by this notice, extending their deadline for submission of an AFH to their next AFH submission deadline (See 24 CFR 5.160(a).) that falls after October 31, 2020.
Based on the initial AFH reviews, HUD believes that program participants need additional time and technical assistance to adjust to the new AFFH process and complete AFH submissions that can be accepted by HUD. HUD’s decision is informed by the review of AFH submissions received. Based on the first 49 AFH initial submissions that received a determination of accept, nonaccept, or deemed accepted from HUD, the Department found that many program participants are striving to meet the requirements of the AFFH rule. In 2017, the Department conducted an evaluation of these submissions and found that more than a third (35%) were initially non-accepted.
HUD’s analysis identified several reasons that merit a delay of AFH submission deadlines, including program participants’ need for additional technical assistance. HUD determined that many program participants struggled to meet the regulatory requirements of the AFFH rule, such as developing goals that

CasCea1s:e181-:c1v8--0c1v0-07160-B76AHDoDcoucmuemnetn1t 1F8ileFdil0e5d/085/1289/1P8agPea6g0e o6f16o0f 73

Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices

685

could be reasonably expected to result in meaningful actions to overcome the effects of contributing factors and related fair housing issues. Further, program participants struggled to develop metrics and milestones that would measure their progress as they affirmatively furthering fair housing. HUD determined that program participants’ frequent misunderstanding of how to set clear goals, metrics, and milestones that addressed their identified contributing factors and related fair housing issues often resulted in non-accepted AFHs. HUD believes that additional technical assistance may result in program participants better understanding their obligations under the AFFH rule. HUD also believes that by enhancing its technical assistance that resources expended by program participants will be reduced because they are more likely to submit an initial AFH that can be accepted by HUD.
Additionally, HUD determined that significant staff resources are required when deciding that an AFH will not be accepted because it is inconsistent with fair housing or civil rights requirements or substantially incomplete, or both. (See 24 CFR 5.162 (a)(2)(b).) HUD believes that it can reduce the resources expended by program participants by examining and revising its technical assistance content and methods of delivery so that program participants’ AFHs are more likely to meet the regulatory requirements on first submission.
In order to reduce burden for program participants in conducting AFHs that meet the regulatory requirements, HUD, in the AFFH rule, encourages program participants to share resources and to address fair housing issues from a broader perspective by collaborating and submitting a single AFH. Nonetheless, HUD believes that some joint and regional collaborations that were non-accepted on their first submission may have benefited from technical assistance early in the process. For example, the largest regional AFH submitted to HUD consisted of 19 program participants. In its review of the AFH, HUD determined that each of the 19 program participants met the regulatory standards for nonacceptance. HUD believes that improving technical assistance for collaborative AFHs will enable collaborations to more efficiently use their resources to address fair housing issues that cross jurisdictional boundaries.
Based on the initial AFH reviews, HUD believes that local government program participants need additional time and technical assistance from HUD to adjust to the new AFFH process and

complete acceptable AFH submissions. HUD also believes it can use this time to improve its Data and Mapping Tool (AFFH–T) and the User Interface (AFFH–UI). The extension period allows HUD to further refine its materials to provide additional guidance to program participants. Finally, this extension allows HUD staff to devote additional time to providing program participants, and program participants in an AFH collaboration, with technical assistance on the legal objective to affirmatively further fair housing.
Consolidated plan program participants must continue to comply with existing, ongoing obligations to affirmatively further fair housing. Until a consolidated plan program participant is required to submit an AFH, it will continue to provide the AFFH Consolidated plan certification in accordance with the requirements that existed prior to August 17, 2015. See 24 CFR 5.160(a)(3). The requirements obligated a program participant to certify that it will affirmatively further fair housing, which means that it will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.
For Consolidated plan program participants that are starting a new 3–5year Consolidated plan cycle that begins before their due date for an AFH, the AI should continue to be updated in accordance with the HUD, Fair Housing Planning Guide (1996), available at https://www.hud.gov/sites/documents/ FHPG.PDF until those consolidated plan program participants submit an AFH after October 31, 2020. HUD encourages consolidated plan program participants to use the data and mapping tool and the AFH Assessment Tool as resources for program participants that are updating their AIs. HUD encourages program participants to collaborate to develop a regional AI, as regional collaborations provide an opportunity for program participants to share resources and address fair housing issues that cross jurisdictional boundaries.1
Program participants that have already submitted an AFH which has
1 Please refer to HUD’s 2017 interim guidance for additional information on collaboration, specifically the Q&A captioned: ‘‘How can States Collaborate with Local Governments or PHAs?’’. The guidance is available at: https:// www.hudexchange.info/resources/documents/ Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions pdf. This guidance is generally applicable to all types of program participants.

been accepted by HUD must continue to execute the goals of that accepted AFH and are not required to conduct a separate AI. Program participants that are covered by this notice and that may have already begun work on an AFH may continue to do so, as the AFFH rule may provide program participants with a useful framework for complying with their AFFH obligation.
HUD will discontinue the review of AFHs currently under review and will not render an accept, deemed accepted, or non-accept determination. Program participants that received a non-accept decision from HUD on their AFH submission and are preparing to resubmit an AFH are also covered by this notice and should not submit their revised AFHs. HUD encourages these program participants to use the information contained in their draft AFHs to conduct the required AI analysis. Finally, program participants prepared to submit their first AFH are covered by this notice and should not submit an AFH to HUD. Program participants that have not received an accept or non-accept determination from HUD, or that have received a nonaccept but will no longer be required to resubmit their AFH, are still required to prepare an AI, as described above in this notice.
HUD is issuing this notice for applicability immediately upon publication. Program participants must continue to affirmatively further fair housing as required by the Fair Housing Act. 42 U.S.C. 3608.
Although HUD is issuing this notice for applicability immediately upon publication, it also invites public comment for a period of 60-days on the extension. HUD will consider all the comments in its ongoing process of reviewing the Assessment of Fair Housing Tool for Local Governments.
Dated: January 2, 2018. Anna Maria Farı´as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–00106 Filed 1–4–18; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[Docket No. BOEM–2017–0020]
Outer Continental Shelf Official Protraction Diagrams MMAA104000
AGENCY: Bureau of Ocean Energy Management, Interior. ACTION: Availability of World Geodetic System Datum of 1984 Outer

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 62 of 73
EXHIBIT B

23928

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 63 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

question the jurisdiction’s AFFH certification by providing notice to the jurisdiction that HUD believes the AFFH certification to be inaccurate and provide the jurisdiction an opportunity to comment. If, after the notice and opportunity to comment is given to the jurisdiction, HUD determines that the AFFH certification is inaccurate, HUD will reject the certification. Rejection of the certification renders the Consolidated Plan substantially incomplete and constitutes grounds for HUD to disapprove the Consolidated Plan as submitted.7 A jurisdiction cannot receive its Community Development Block Grants (CDBG), HOME, Emergency Solutions Grants (ESG), or Housing for Persons With AIDs (HOPWA) program grants until the Consolidated Plan is approved.
Dated: May 18, 2018. Anna Maria Far´ıas,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11145 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–16]
Affirmatively Furthering Fair Housing: Withdrawal of Notice Extending the Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice; withdrawal.
SUMMARY: This notice withdraws HUD’s January 5, 2018, notice extending the submission deadline for an Assessment of Fair Housing (AFH) by local government consolidated plan program participants. DATES: Applicable May 23, 2018, the document published at 83 FR 683 on January 5, 2018, is withdrawn. FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339.
7 See 24 CFR 91.500.

SUPPLEMENTARY INFORMATION: HUD’s Affirmatively Furthering Fair Housing (AFFH) regulations (24 CFR 5.150– 5.168) provide that program participants must submit an Assessment of Fair Housing (AFH) using a HUD-provided assessment tool. See e.g., 24 CFR 5.154. The regulations further provide a schedule of time frames by which different types of program participants must submit an assessment using the appropriate HUD-provided tool. See 24 CFR 5.160(a). These time frames are connected to an individual program participant’s multi-year consolidated planning process. On January 5, 2018, at 83 FR 683, HUD published a Federal Register notice extending the time frame applicable to local government consolidated plan program participants. HUD is withdrawing the January 5, 2018, notice. If HUD later finds it prudent to revise the regulations, including by revising the submission schedule, HUD will publish a notice of proposed rulemaking to that effect for public comment.
Dated: May 18, 2018. Anna Maria Farı´as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11143 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–R8–ES–2018–N048; FXES11130800000–178–FF08E00000]
Endangered Species Recovery Permit Applications
AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of receipt of permit applications; request for comment.
SUMMARY: We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The ESA also requires that we invite public comment before issuing recovery permits to conduct certain activities with endangered species. DATES: Comments on these permit applications must be received on or before June 22, 2018. ADDRESSES: Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and

Wildlife Service, 2800 Cottage Way, Room W–2606, Sacramento, CA 95825 (telephone: 916–414–6464; fax: 916– 414–6486). Please refer to the respective permit number for each application when submitting comments. FOR FURTHER INFORMATION CONTACT: Daniel Marquez, Fish and Wildlife Biologist; see ADDRESSES (telephone: 760–431–9440; fax: 760–431–9624). SUPPLEMENTARY INFORMATION: The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.). We seek review and comment from local, State, and Federal agencies and the public on the following permit requests
Applicants
Permit No. TE–204436
Applicant: Johanna Kisner, Orcutt, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the tidewater goby (Eucyclogobius newberryi) in conjunction with survey activities throughout the range of the species in California for the purpose of enhancing the species’ survival.
Permit No. TE–185595
Applicant: Kelly Bayne, Sacramento, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), San Diego fairy shrimp (Branchinecta sandiegonensis), Riverside fairy shrimp (Streptocephalus woottoni), and vernal pool tadpole shrimp (Lepidurus packardi); and take (harass by survey, capture, handle, and release) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (Ambystoma californiense) in conjunction with survey activities throughout the range of the species in California for the purpose of enhancing the species’ survival.
Permit No. TE–101462
Applicant: Peter Sarafian, Los Osos, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the Morro shoulderband snail (Banded dune) (Helminthoglypta walkeriana) in

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 64 of 73
EXHIBIT C

23922

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 65 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

consultancies, and research grants or contracts. The selected candidates must fill out the U.S. Office of Government Ethics (OGE) Confidential Financial Disclosure Report, OGE Form 450. Disclosure of this information is necessary to determine if the selected candidate is involved in any activity that may pose a potential conflict with their official duties as a member of the committee.
A nomination package should include the following information for each nominee: (1) A letter of nomination from an employer, a colleague, or a professional organization stating the name, affiliation, and contact information for the nominee, the basis for the nomination (i.e., what specific attributes, perspectives, and/or skills does the individual possess that would benefit the workings of the NACNHSC, and the nominee’s field(s) of expertise); (2) a letter of interest from the nominee stating the reasons they would like to serve on the NACNHSC; (3) a biographical sketch of the nominee, a copy of his/her curriculum vitae, and his/her contact information (address, daytime telephone number, and email address); and (4) the name, address, daytime telephone number, and email address at which the nominator can be contacted.
HRSA will collect and retain nomination packages to create a pool of possible future NACNHSC voting members. When a vacancy occurs, the agency will review nomination packages from the appropriate category and may contact nominees at that time. Nominations should be updated and resubmitted every 4 years to continue to be considered for committee vacancies.
HHS strives to ensure a balance of the membership of NACNHSC in terms of points of view presented and the committee’s function and makes every effort to ensure the representation of women, all ethnic and racial groups, and people with disabilities on HHS Federal Advisory Committees. Therefore, we encourage nominations of qualified candidates from these groups and endeavor to make appointments to NACNHSC without discrimination on basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
Authority: Section 337 of the Public Health Service Act (42 U.S.C. 254j), as amended. NACNHSC is governed by provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. Appendix 2), which sets for the formation and use of advisory committees, and applies to the extent that the provisions of FACA do not

conflict with the requirements of PHSA Section 337.
Dated: May 17, 2018.
Jay Womack,
Acting Deputy Director, Division of Executive Secretariat.
[FR Doc. 2018–11034 Filed 5–22–18; 8:45 am]
BILLING CODE 4165–15–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–17]
Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice.
SUMMARY: HUD announces the withdrawal of the Local Government Assessment Tool developed by HUD for use by local governments that receive Community Development Block Grants, HOME Investment Partnerships Program, Emergency Solutions Grants, or Housing Opportunities for Persons With AIDS formula funding from HUD when conducting and submitting their own Assessment of Fair Housing (AFH) under the Affirmatively Furthering Fair Housing (AFFH) regulations. Through Federal Register notice published on January 13, 2017, HUD announced the Office of Management and Budget’s renewed approval of the Assessment Tool under the Paperwork Reduction Act. Since that time, HUD has become aware of significant deficiencies in the Tool impeding completion of meaningful assessments by program participants. HUD therefore is withdrawing the Local Government Assessment Tool because it is inadequate to accomplish its purpose of guiding program participants to produce meaningful AFHs. Following this withdrawal of the Local Government Assessment Tool, HUD will review the Assessment Tool and its function under the AFFH regulations to make it less burdensome and more helpful in creating impactful fair housing goals. Accordingly, this withdrawal notice also solicits comments and suggestions geared to creating a less burdensome and more helpful AFH Tool for local governments.
DATES: Applicability Date: May 23, 2018. Comment Due Date: Comments on
improvement to the AFH Tool for Local Governments are due on or before July 23, 2018.

ADDRESSES: Interested persons are invited to submit comments to the Office of the General Counsel, Rules Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10276, Washington, DC 20410–0001. Communications should refer to the above docket number and title and should contain the information specified in the ‘‘Request for Comments’’ section. There are two methods for submitting public comments.
1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410–0500. Due to security measures at all federal agencies, however, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that comments submitted by mail be submitted at least two weeks in advance of the public comment deadline.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make comments immediately available to the public. Comments submitted electronically through the http://www.regulations.gov website can be viewed by other commenters and interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the notice.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Comments. All comments and communications submitted to HUD will be available, for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at (202) 708– 3055 (this is not a toll-free number). Copies of all comments submitted are available for inspection and

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 66 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

23923

downloading at http:// www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule.1 The AFFH final rule provided HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further fair housing. The AFFH regulations are codified in 24 CFR part 5, subpart A.2
To assist program participants, the revised approach involves an ‘‘Assessment Tool’’ for use in completing the regulatory requirement to conduct an assessment of fair housing (AFH), as set out in the AFFH rule. Because of the variations in the HUD program participants subject to the AFFH rule, HUD has been developing separate Assessment Tools for use by different types of program participants. In addition to Assessment Tools for use by public housing agencies (PHAs) and States and Insular Areas, there is one for local governments, which is the subject of this notice. It is called the Local Government Assessment Tool. All the Assessments Tools, because they are information collection documents, are subject to approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).3
The Local Government Assessment Tool was developed by HUD for use by local governments that receive Community Development Block Grants, HOME Investment Partnerships Program, Emergency Solutions Grants, or Housing Opportunities for Persons With AIDS formula funding from HUD, when conducting and submitting their AFH. OMB granted PRA approval of the initial iteration of the Local Government Assessment Tool in December 2015, and HUD announced the approval and the availability of the Tool’s use by notice
1 80 FR 42357. 2 §§ 5.150–5.168. 3 44 U.S.C. 3501 et seq.

published in the Federal Register on December 31, 2015.4 The initial iteration of the Local Government Assessment Tool (known as ‘‘LG2015’’) was approved by OMB for a period of one year. In 2016, HUD began the process for renewed approval of that information collection device.
The PRA establishes a notice and comment process for information collection approvals, involving the publication of two Federal Register notices, one for 60 days of public comments and another for a 30-day comment period.5 HUD’s 60-day notice for renewed approval of the Local Government Assessment Tool was published on March 23, 2016.6 The 30day notice was published on August 23, 2016, and addressed the significant issues raised by the comments received on the 60-day notice.7
HUD announced the renewed PRA approval by OMB of a Local Government Assessment Tool through Federal Register notice published on January 13, 2017.8 In addition to announcing the PRA approval of the Tool, the January 13, 2017, notice addressed the significant issues raised by the comments received in response to the 30-day notice. This current version of the Tool, which is the subject of this notice, is known as ‘‘LG2017.’’ 9
II. This Notice—Withdrawal of the Local Government Assessment Tool
Through this notice, HUD announces its withdrawal of the current version of the Local Government Assessment Tool (OMB Control No: 2529–0054). As noted above, the PRA establishes a notice-andcomment process for information collection approvals, but not for withdrawals. Accordingly, this withdrawal is effective immediately.
In the January 13, 2017, Federal Register notice announcing the availability of that Assessment Tool, HUD noted its agreement with commenters that ‘‘a more accurate estimate of the time and cost involved in preparing the AFH may not be known until program participants submit their
4 80 FR 81840.
5 See, e.g., 44 U.S.C. 3506–07
6 81 FR 15546.
7 81 FR 57602.
8 83 FR 4368.
9 Both the original iteration (LG2015) and current version (LG2017) of the Local Government Assessment Tool are available at https:// www.hudexchange.info/resource/5216/assessmentof-fair-housing-tool-for-local-governments/. Program participants with a due date of October 13, 2017 or earlier were required to use the LG2015 version of the Assessment Tool. Program participants with a due date of October 14, 2017, or later must use the LG2017 version of the Assessment Tool. This notice pertains to the current (LG2017) version.

AFHs.’’ 10 Accordingly, that notice stated that ‘‘HUD intends to also continue to monitor and assess the impact and burden of implementation of the AFH process on program participants, including on the range of fair housing outcomes.’’ 11 Consistent with this response to comments, since the publication of this notice on January 13, 2017, HUD has become aware of significant deficiencies in the Tool that have made it unduly burdensome for program participants to use the Tool to create acceptable and meaningful AFHs with impactful fair housing goals.
HUD’s decision is, in part, informed by its review of the initial round of AFH submissions that were developed using the Local Government Assessment Tool. This review led HUD to conclude that the Tool is unworkable based upon: (1) The high failure rate from the initial round of submissions; and (2) the level of technical assistance HUD provided to this initial round of 49 AFHs, which cannot be scaled up to accommodate the increase in the number of local government program participants with AFH submission deadlines in 2018 and 2019.
1. Experience With the Initial Group of AFH Submissions Demonstrates That the Tool Is Unduly Burdensome and Ineffective at Assisting Program Participants With the Creation of Acceptable AFHs
Between October 2016 and December 2017, HUD received, reviewed, and issued initial decisions on 49 AFHs submitted by local government program participants. In 2018, the Department conducted an evaluation of these submissions and found that, among this initial group of 49 AFH submissions, a significant proportion of program participants had difficulty completing or understanding how to use the Tool to complete acceptable AFHs. Indeed, the proportion of submissions determined to be unacceptable indicates that the Tool was unduly burdensome and not working as an effective device to assist program participants with the creation of acceptable and meaningful AFHs with impactful fair housing goals.
For instance, only 37% of the initial 49 submissions (18/49) had been determined to be acceptable on initial submission. HUD returned 35% of these (17/49) as unacceptable. Many other AFH submissions (28% or 14/49) were accepted only after the program participants submitted revisions and additional information in the form of addendums in response to HUD’s
10 82 FR 4391.
11 Id.

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

23924

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 67 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

technical assistance. Taken together, 63% of the 49 AFHs submitted were either: (a) Returned as unacceptable and have not been successfully resubmitted, or (b) accepted only after the program participant supplied necessary additional information and revisions.
Tellingly, despite the fact that joint and regional submissions benefit from the sharing of resources by program participants, enabling them to address fair housing issues from the broader perspective provided by collaboration, joint and regional collaborations nonetheless suffered from the same defects as individual AFH submissions. For example, the largest regional AFH submitted to HUD involved a total of 19 program participants. In its review of the AFH, HUD determined that each of the 19 program participants would have met the regulatory standards for nonacceptance.
Additionally, many jurisdictions found it necessary to incur additional expense to hire consultants to complete their AFHs. Particularly in light of the high initial fail rates, this fact further demonstrates that the Assessment Tool is unduly burdensome as an information collection device and must be improved to reduce the burden upon respondents.
HUD’s analysis shows that the excessively high rate of unacceptable AFHs was due, in large measure, to problems with the Local Government Assessment Tool, and that efficiency gains over time from experience working with the Tool would be unlikely to address HUD’s concerns about both the inadequacy of the Tool and the burden to program participants in using the Tool to complete acceptable AFHs. Specifically, HUD’s analysis found a pattern of problems with the initial 49 AFH submissions, indicating at least seven different categories of critical problems with the Local Government Assessment Tool: (a) Inadequate community participation; (b) insufficient use of local data and knowledge; (c) lack of regional analysis; (d) problems with identification of contributing factors; (e) prioritization of contributing factors; (f) problems with setting goals; and (g) inadequate responses due to duplication of questions. While there may have been myriad issues that caused an individual AFH submission to have been nonaccepted, in the aggregate, this summary of issues describes the basis for HUD’s determination that the Assessment Tool is ineffective and unduly burdensome on program participants.
(a) Inadequate Community Participation. A significant cause of the high non-acceptance rate was inadequate community participation.

The AFFH regulations require program participants to ‘‘give the public reasonable opportunities for involvement in the development of the AFH and in the incorporation of the AFH into the consolidated plan, PHA Plan, and other required planning documents.’’ 12 However, the questions in the Local Government Assessment Tool regarding community participation have resulted in confusion. The questions vaguely incorporate by reference the existing community participation requirements in HUD’s Consolidated Plan regulations 13 and the comparable requirements in HUD’s Public Housing regulations.14 The questions do not explicitly state the specific requirements or ask that program participants explain how they met these specific requirements. As a result, many of the initial AFH submissions did not fulfill these requirements and/or did not explain in their responses how they fulfilled the requirements. For example, the regulation at 24 CFR 91.105(b)(4) requires a period of not less than 30 calendar days for comment by the community; however, one community posted a draft AFH for public comment on a Friday and submitted the final AFH to HUD the following Monday, after providing only three days for public comment.15
(b) Insufficient Use of Local Data and Knowledge. The Assessment Tool requires local governments to utilize their local data and local knowledge to supplement the HUD-provided data, or, when appropriate, to replace HUDprovided data. HUD requires the use of local data only if the program participants can find and use such data at little or no cost. While many program participants utilized local data and local knowledge exactly as intended, a substantial number did not. The absence of local data, or failure to use it, resulted in an inability to address issues in a community that have not manifested themselves in the HUD-provided data. For example, when discussing environmental health issues, one program participant did not identify multiple Superfund locations in their jurisdiction. While this is information that a local government would know, specific Superfund locations are not noted on HUD maps. The questions in the Tool thus are inadequate to inform
12 24 CFR 5.158(a). 13 24 CFR part 91. 14 24 CFR part 903. 15 See, e.g., Section III, Questions 1–4 of LG2015 and LG2017.

the program participants when to use local data and knowledge.16
(c) Lack of Regional Analysis. Questions throughout the Assessment Tool require program participants to undertake both a jurisdictional and a regional analysis of fair housing issues. Many of the 49 AFH submissions did not complete or adequately complete the regional component of the analysis of fair housing issues. Others may have completed the analysis but did so in a way that did not compare the jurisdiction to the region. The regional analysis is often a critical component of the AFH because fair housing issues may cross jurisdictional boundaries and demographic trends may extend across entire regions. HUD provides both jurisdictional and regional data through the AFFH data and mapping tool for each program participant. However, the Assessment Tool inadequately guides program participants in the use of such data to perform the type of regional analysis of fair housing issues that would be necessary for an acceptable AFH.
(d) Identification of Contributing Factors. Throughout the analysis of fair housing issues, the Assessment Tool requires that the program participant identify the contributing factors that create, contribute to, or perpetuate fair housing issues in their community. However, the Assessment Tool does not explicitly require the program participant to connect the identified contributing factors to the fair housing issues they will address until the final section where the program participant determines goals to overcome those contributing factors.
Because the Assessment Tool fails to instruct the program participants to connect these concepts, many of the 49 AFH submissions identified contributing factors which did not logically connect to the analysis of fair housing issues undertaken. In addition, factors which the program participants themselves identified in other portions of the Assessment Tool were not identified in the responses to these questions. For example, one AFH included 3 pages of detailed analysis of Home Mortgage Disclosure Act (HMDA) information outlining the lending discrimination occurring, yet the program participants did not identify lending discrimination as a contributing factor.17
(e) Prioritization of Contributing Factors. The final section of the
16 See, e.g., Section V, Questions B.3.1.a.3/ B.3.1.b.3/B.3.1.c.3/B.3.1.d.3/B.3.1.e.3 (LG2017).
17 See, e.g., Section V, Questions B.1.3/B.2.3/ B.3.3/B.4.3/C.3/D.7 (LG2015 and LG2017).

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 68 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

23925

Assessment Tool requires that the program participant(s) prioritize the contributing factors identified for each fair housing issue analyzed in the fair housing analysis sections. The program participant(s) must then justify the prioritization of the contributing factors. Finally, the program participant(s) set goals designed to overcome the contributing factors identified as significant. Jurisdictions must reasonably exercise their discretion to prioritize contributing factors. The justification provides an opportunity to explain the prioritization method selected. Many of the 49 submissions either included in this question contributing factors not identified in the

analysis of fair housing issues or did not include the contributing factors that were identified. Many program participants also did not explain their prioritization method. Without this critical link, the analysis of fair housing issues and the goals do not connect, making the AFH unacceptable. The Assessment Tool thus fails to provide adequate guidance for the prioritization of contributing factors.18
(f) Goals Section was Highly Problematic. The goals section was an issue in or the sole reason for the majority of initially non-accepted AFHs. In several submissions, the goals were not likely to result in meaningful actions, lacked metrics and milestones,

were not linked to contributing factors and fair housing issues, and generally lacked adequate discussion.
Program participants are responsible for identifying their own fair housing goals. However, the goals set by the program participant must connect to the analysis of fair housing issues and result in meaningful actions to affirmatively further fair housing.
These goals will then be incorporated into Consolidated Plans and Public Housing Plans. Along with extensive guidance, HUD provides the following chart in the assessment tool to assist program participants in completing this question.

Goal

Contributing factors

Fair housing issues

Metrics, milestones, and
timeframe for achievement

Responsible program
participant(s)

Discussion:

Many of the 49 AFHs reviewed were deficient in this section, which is the culmination of the AFH. Goals were frequently overbroad or would not result in meaningful actions, for example, to ‘‘increase housing choice,’’ or ‘‘partner with . . . .’’ Program participants frequently failed to connect their fair housing goals to the AFH analysis, or to the contributing factors or fair housing issues identified in the AFH.
Metrics and milestones for evaluating the accomplishment of fair housing goals were the most frequent source of deficiency in this section. However, frequently those established in the AFHs were neither time-bound nor measurable. The discussion section of the chart is a program participant’s opportunity to explain the goal to ensure that HUD understands its intention and can often counter-balance deficiencies in or confusion caused by other sections of the chart. Many of the program participants did not complete this section or provided only a vague discussion. HUD is therefore concerned that the roadmap provided in the Assessment Tool is inadequate to lead to the development of effective goals.19
(g) Inadequate Responses Due to Duplication. The Local Government Assessment Tool contains several questions that have elicited inadequate responses which merely duplicate previous responses to other questions

within the Tool without responding fully to the specific question asked. The lack of clarity in the questions led to responses that merely assumed a question was being asked twice and thus failed to respond fully to the question at hand. Similarities in the sentence structure and terminology used in the questions may have caused program participants to overlook slight or nuanced differences between questions.20
2. HUD Does Not Have the Resources To Provide a Similar Level of Technical Assistance to Expanding Numbers of Program Participants in 2018 and 2019
Because of these significant problems with the Tool, HUD has provided substantial technical assistance to this initial round of program participants, even for the AFHs that have been accepted. HUD does not have the resources to continue to provide program participants with the level of technical assistance that they would need to submit acceptable AFHs using the current version of the Local Government Assessment Tool. Despite the fact that many jurisdictions reportedly have found it necessary to engage consultants to complete the Assessment Tool, HUD estimates that it has spent over $3.5 million on technical assistance for the initial round of 49 AFH submissions. In addition to contract technical assistance services,

significant HUD staff resources are required to review an AFH for acceptability and to communicate with program participants regarding HUD’s determination to accept or non-accept an AFH.
Although HUD anticipated providing technical assistance to program participants to assist them in submitting acceptable assessments, the amount of assistance that has proved to be required with the current version of the Local Government Assessment Tool is not sustainable particularly in light of the significant increase in AFH submissions scheduled to occur in 2018 and 2019. In 2018, for example, 104 local government program participants are scheduled to submit AFHs to HUD. In 2019, the number of local governments originally scheduled to submit their AFHs rises to 752. The level of technical assistance provided to the initial 49 participants could not be extended to these numbers of AFHs due in 2018 and 2019.
And due to the deficiencies in the Local Government Assessment Tool, HUD believes that, without the withdrawal and revision of the Tool, a high percentage of AFHs in future rounds of submissions would not be initially acceptable. Because the problems with the Tool have created the above-described patterns of deficiencies in AFH submissions even from collaborative groups leveraging the resources of multiple jurisdictions, HUD

18 See, e.g., Section VI, Question 1 (LG2015 and LG2017).

19 See, e.g., Section VI, Question 2 (LG2015 and LG2017).

20 See, e.g., Section III, Question 3; Section IV, Question 1; Section V, Questions B.1.1.b/B.3/B.4/ C.1.2/D.2.a (LG2017).

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

23926

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 69 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

does not believe that the level of technical assistance it has been required to provide to the initial 49 AFHs would decrease meaningfully as result of expanded usage of the Tool. As a result, in 2018 and 2019, HUD would not be able to provide all program participants with the extent of assistance provided to those in the initial round of AFHs, meaning that these participants would not have the help they would need to correct their assessments. This would lead to a great deal of uncertainty for program participants as to how to submit an acceptable AFH. Such uncertainty would, in turn, lead to uncertainty regarding the status of their HUD-funded programs so long as they do not have an accepted AFH in place.
3. In Light of HUD and Local Government Program Participants’ Resource Limitations, Temporary Withdrawal of the Local Government Assessment Tool Is Necessary as the Most Efficient Way To Resolve the Tool’s Significant Deficiencies
HUD is withdrawing the Tool to produce a more effective and less burdensome Assessment Tool. These improvements to the Tool will make it more effective in assisting program participants with the creation of meaningful assessments with impactful fair housing goals to help them plan to fulfill their legal obligation to affirmatively further fair housing. Withdrawal and revision of the Assessment Tool will also conserve HUD’s limited resources, allowing HUD to use those limited resources more effectively to help program participants produce meaningful improvements in the communities they serve. HUD also believes that investing additional time to improve its Data and Mapping Tool (AFFH–T) and the User Interface (AFFH–UI) will result in more substantive assessments with greater fair housing impact.
III. Effects of Withdrawal of Assessment Tool
The AFFH regulations at 24 CFR 5.160(a)(1)(ii) provide that if the specified AFH submission deadline results in a submission date that is less than 9 months after the Assessment Tool designed for the relevant type of program participant is available for use, ‘‘the participants(s)’ submission deadline will be extended . . . to a date that will be not less than 9 months from the date of publication of the Assessment Tool.’’ For example, in the case of the Assessment Tool for use by PHAs, HUD published a notice in January 2017, advising that the Assessment Tool had been approved

pursuant to the PRA process, but was not yet available for use by PHAs because the HUD data needed to make the Assessment Tool workable was not yet available.21 Accordingly, under 24 CFR 5.160(a)(1)(ii), the deadline for first AFH submissions by PHAs was extended until a workable Assessment Tool becomes available.
Similarly, in the case of the Local Government Assessment Tool, HUD has determined that the current iteration of the Tool, although published after PRA procedures, is substantively deficient and unduly burdensome because it has resulted in great expense to program participants and HUD, yet it is not adequately guiding participants through the creation of acceptable AFHs. Accordingly, HUD is immediately withdrawing the Local Government Assessment Tool. As a result, local jurisdictions do not have an approved Assessment Tool that is published and available for use in completing the AFHs. Pursuant to 24 CFR 5.160(a)(1)(ii), the deadline for local government program participants to submit a first AFH is thus extended to a date not less than 9 months following the future publication of a revised and approved Local Government Assessment Tool. HUD is immediately seeking comment on ways to make the Local Government Assessment Tool workable and effective. Pursuant to 24 CFR 5.160(a)(1)(ii), the future published notice announcing that a revised and approved Local Government Assessment Tool is available will also provide program participants with the revised due date for first AFH submissions.
Consolidated plan program participants that have not yet submitted their first AFHs must nonetheless continue to comply with existing, ongoing legal obligations to affirmatively further fair housing (legal obligations which AFHs were merely intended to help participants plan to fulfill). Pursuant to 24 CFR 5.160(a)(3), until a consolidated plan program participant submits its first AFH, it will continue to provide the AFFH certification with its Consolidated Plan, in accordance with the requirements that existed prior to August 17, 2015. Those requirements obligate a program participant to certify that it will affirmatively further fair housing, which means that it will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain
21 82 FR 4373.

records reflecting the analysis and actions.
For Consolidated plan program participants that are starting a new 3–5year Consolidated plan cycle that begins before their due date for an AFH, the AI should continue to be updated in accordance with the HUD, Fair Housing Planning Guide (1996), available at https://www.hud.gov/sites/documents/ FHPG.PDF. The data HUD has developed in order to implement the AFFH rule will remain available for program participants to use in conducting their AIs. HUD encourages program participants to collaborate to develop a regional AI, as regional collaborations provide an opportunity for program participants to share resources and address fair housing issues that cross jurisdictional boundaries.22
Program participants that have already submitted an AFH which has been accepted by HUD must continue to execute the goals of that accepted AFH and are not required to conduct a separate AI. HUD will discontinue the review of AFHs submitted by local governments that are currently under review and will not render a decision to accept or not accept. In cases where HUD denied acceptance of an AFH submission that used the withdrawn Local Government Assessment Tool and the program participant(s) were preparing to re-submit an AFH, the participant(s) should not submit a revised AFH. Finally, local governments prepared to submit their first AFH should not submit an AFH to HUD. Local governments that have not received an accept or non-accept determination from HUD, or that have received a non-accept but will no longer be required to resubmit their AFH, are still required to prepare an AI, as described above in this notice. Program participants must continue to fulfill their legal obligations to affirmatively further fair housing.
IV. Request for Public Comment on Improvements to the Local Government Assessment Tool
This notice offers the opportunity for the public to provide information and recommendations on revisions to the Local Government Assessment Tool. HUD welcomes and will consider all
22 Please refer to HUD’s 2017 interim guidance for additional information on collaboration, specifically the Q&A captioned: ‘‘How can States Collaborate with Local Governments or PHAs?’’. The guidance is available at: https:// www.hudexchange.info/resources/documents/ Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions.pdf. This guidance is generally applicable to all types of program participants.

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 70 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

23927

responses to this notice when reconsidering the Assessment Tool
Dated: May 18, 2018. Anna Maria Far´ıas,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11146 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–18]
Affirmatively Furthering Fair Housing (AFFH): Responsibility To Conduct Analysis of Impediments
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice.
SUMMARY: By notice published elsewhere in today’s Federal Register, HUD has withdrawn the current version of the information collection device used by local government program participants to assess fair housing issues as part of their planning for use of housing and community development block grants. The device is referred to as the Local Government Assessment Tool; the resulting assessment is referred to as an Assessment of Fair Housing (AFH). As explained in that notice, the withdrawal of the lack of a working information collection device means that a program participant that has not yet submitted an AFH using that device that has been accepted by HUD must continue to carry out its duty to affirmatively further fair housing by, inter alia, continuing to assess fair housing issues as part of planning for use of housing and community development block grants in accordance with pre-existing requirements. The preexisting requirements referred to the fair housing assessment as an ‘‘analysis of impediments to fair housing choice’’ (AI). This notice reminds program participants of the requirements and standards for completing the AI. DATES: Applicability Date: May 23, 2018.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free

Federal Relay Service during working hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION: On July 16, 2015, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule.1 The AFFH final rule provides HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further fair housing. To assist HUD program participants in meeting this obligation, the AFFH rule provides that program participants must conduct an Assessment of Fair Housing (AFH) using an ‘‘Assessment Tool.’’ The AFFH regulations are codified in 24 CFR part 5, subpart A (§§ 5.150–5.168).
Through notice published elsewhere in today’s Federal Register, HUD announces its withdrawal of the Local Government Assessment Tool (OMB Control No: 2529–0054). As explained in that notice, the AFFH regulations at 24 CFR 5.160(a)(1)(ii) provide that if the specified AFH submission deadline results in a submission date that is less than 9 months after the Assessment Tool designed for the relevant type of program participant is available for use, ‘‘the participant(s)’ submission deadline will be extended . . . to a date that will be not less than 9 months from the date of publication of the Assessment Tool.’’ As a result of the withdrawal of the Local Government Assessment Tool and the lack of available HUD data for the PHA Assessment Tool, currently no type of program participant has an Assessment Tool available for use.2 Pursuant to 24 CFR 5.160(a)(1)(ii), the deadline for local government program participants to submit a first AFH is thus extended to a date not less than 9 months following the future publication of a revised and approved Local Government Assessment Tool.
In the meantime, as explained in the notice withdrawing the Local Government Assessment Tool, Consolidated Plan program participants that have not yet submitted an assessment using a HUD-provided assessment tool that must be accepted, must nonetheless continue to comply with existing, ongoing legal obligations to affirmatively further fair housing. Congress has repeatedly reinforced this mandate, requiring in the Housing and Community Development Act of 1974 and the Cranston-Gonzalez National Affordable Housing Act, for example, that covered HUD program participants certify, as a condition of receiving Federal funds, that they will
1 80 FR 42357.
2 See 82 FR 4373.

affirmatively further fair housing.3 Pursuant to 24 CFR 5.160(a)(3), until a Consolidated Plan program participant submits its first accepted AFH, it will continue to provide the AFFH certification with its Consolidated Plan, in accordance with the requirements that existed prior to August 17, 2015.4 Those requirements obligate a program participant to certify that it will affirmatively further fair housing, which means that it will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.
Program participants are hereby reminded that the legal obligation to affirmatively further fair housing remains in effect, and that HUD places a high priority upon the responsibility of program participants to ensure that their AIs serve as effective fair housing planning tools. For Consolidated Plan program participants that are starting a new 3–5-year Consolidated Plan cycle that begins before their due date for an AFH, the AI should continue to be updated in accordance with the HUD Fair Housing Planning Guide (1996).5 The data HUD has developed in order to implement the AFFH rule will remain available for program participants to use in conducting their AIs. HUD encourages program participants to collaborate to develop a regional AI, as regional collaborations provide an opportunity for program participants to share resources and address fair housing issues that cross jurisdictional boundaries.6
Further, program participants are hereby reminded that if HUD believes the AI or actions taken to affirmatively further fair housing to be inadequate, HUD may require submission of the full AI and other documentation. If HUD concludes that the AI is substantially incomplete, or the actions taken were plainly inappropriate to address the identified impediments, HUD may
3 See, e.g., 42 U.S.C. 5304(b)(2), 5306(d)(7)(B), 12705(b)(15).
4 See, e.g., 24 CFR 91.225(a)(1) (2014); 24 CFR 91.325(a)(1) (2014).
5 Available at https://www.hud.gov/sites/ documents/FHPG.PDF.
6 Please refer to HUD’s 2017 interim guidance for additional information on collaboration, specifically the Q&A captioned: ‘‘How can States Collaborate with Local Governments or PHAs?’’. The guidance is available at: https:// www.hudexchange.info/resources/documents/ Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions.pdf. This guidance is generally applicable to all types of program participants.

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 71 of 73
EXHIBIT D

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 72 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

23927

responses to this notice when reconsidering the Assessment Tool
Dated: May 18, 2018. Anna Maria Far´ıas,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11146 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–18]
Affirmatively Furthering Fair Housing (AFFH): Responsibility To Conduct Analysis of Impediments
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice.
SUMMARY: By notice published elsewhere in today’s Federal Register, HUD has withdrawn the current version of the information collection device used by local government program participants to assess fair housing issues as part of their planning for use of housing and community development block grants. The device is referred to as the Local Government Assessment Tool; the resulting assessment is referred to as an Assessment of Fair Housing (AFH). As explained in that notice, the withdrawal of the lack of a working information collection device means that a program participant that has not yet submitted an AFH using that device that has been accepted by HUD must continue to carry out its duty to affirmatively further fair housing by, inter alia, continuing to assess fair housing issues as part of planning for use of housing and community development block grants in accordance with pre-existing requirements. The preexisting requirements referred to the fair housing assessment as an ‘‘analysis of impediments to fair housing choice’’ (AI). This notice reminds program participants of the requirements and standards for completing the AI. DATES: Applicability Date: May 23, 2018.
FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free

Federal Relay Service during working hours at 1–800–877–8339.
SUPPLEMENTARY INFORMATION: On July 16, 2015, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule.1 The AFFH final rule provides HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further fair housing. To assist HUD program participants in meeting this obligation, the AFFH rule provides that program participants must conduct an Assessment of Fair Housing (AFH) using an ‘‘Assessment Tool.’’ The AFFH regulations are codified in 24 CFR part 5, subpart A (§§ 5.150–5.168).
Through notice published elsewhere in today’s Federal Register, HUD announces its withdrawal of the Local Government Assessment Tool (OMB Control No: 2529–0054). As explained in that notice, the AFFH regulations at 24 CFR 5.160(a)(1)(ii) provide that if the specified AFH submission deadline results in a submission date that is less than 9 months after the Assessment Tool designed for the relevant type of program participant is available for use, ‘‘the participant(s)’ submission deadline will be extended . . . to a date that will be not less than 9 months from the date of publication of the Assessment Tool.’’ As a result of the withdrawal of the Local Government Assessment Tool and the lack of available HUD data for the PHA Assessment Tool, currently no type of program participant has an Assessment Tool available for use.2 Pursuant to 24 CFR 5.160(a)(1)(ii), the deadline for local government program participants to submit a first AFH is thus extended to a date not less than 9 months following the future publication of a revised and approved Local Government Assessment Tool.
In the meantime, as explained in the notice withdrawing the Local Government Assessment Tool, Consolidated Plan program participants that have not yet submitted an assessment using a HUD-provided assessment tool that must be accepted, must nonetheless continue to comply with existing, ongoing legal obligations to affirmatively further fair housing. Congress has repeatedly reinforced this mandate, requiring in the Housing and Community Development Act of 1974 and the Cranston-Gonzalez National Affordable Housing Act, for example, that covered HUD program participants certify, as a condition of receiving Federal funds, that they will
1 80 FR 42357.
2 See 82 FR 4373.

affirmatively further fair housing.3 Pursuant to 24 CFR 5.160(a)(3), until a Consolidated Plan program participant submits its first accepted AFH, it will continue to provide the AFFH certification with its Consolidated Plan, in accordance with the requirements that existed prior to August 17, 2015.4 Those requirements obligate a program participant to certify that it will affirmatively further fair housing, which means that it will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.
Program participants are hereby reminded that the legal obligation to affirmatively further fair housing remains in effect, and that HUD places a high priority upon the responsibility of program participants to ensure that their AIs serve as effective fair housing planning tools. For Consolidated Plan program participants that are starting a new 3–5-year Consolidated Plan cycle that begins before their due date for an AFH, the AI should continue to be updated in accordance with the HUD Fair Housing Planning Guide (1996).5 The data HUD has developed in order to implement the AFFH rule will remain available for program participants to use in conducting their AIs. HUD encourages program participants to collaborate to develop a regional AI, as regional collaborations provide an opportunity for program participants to share resources and address fair housing issues that cross jurisdictional boundaries.6
Further, program participants are hereby reminded that if HUD believes the AI or actions taken to affirmatively further fair housing to be inadequate, HUD may require submission of the full AI and other documentation. If HUD concludes that the AI is substantially incomplete, or the actions taken were plainly inappropriate to address the identified impediments, HUD may
3 See, e.g., 42 U.S.C. 5304(b)(2), 5306(d)(7)(B), 12705(b)(15).
4 See, e.g., 24 CFR 91.225(a)(1) (2014); 24 CFR 91.325(a)(1) (2014).
5 Available at https://www.hud.gov/sites/ documents/FHPG.PDF.
6 Please refer to HUD’s 2017 interim guidance for additional information on collaboration, specifically the Q&A captioned: ‘‘How can States Collaborate with Local Governments or PHAs?’’. The guidance is available at: https:// www.hudexchange.info/resources/documents/ Interim-Guidance-for-Program-Participants-onStatus-of-Assessment-Tools-and-SubmissionOptions.pdf. This guidance is generally applicable to all types of program participants.

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

23928

Case 1:18-cv-01076-BAH Document 18 Filed 05/29/18 Page 73 of 73
Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

question the jurisdiction’s AFFH certification by providing notice to the jurisdiction that HUD believes the AFFH certification to be inaccurate and provide the jurisdiction an opportunity to comment. If, after the notice and opportunity to comment is given to the jurisdiction, HUD determines that the AFFH certification is inaccurate, HUD will reject the certification. Rejection of the certification renders the Consolidated Plan substantially incomplete and constitutes grounds for HUD to disapprove the Consolidated Plan as submitted.7 A jurisdiction cannot receive its Community Development Block Grants (CDBG), HOME, Emergency Solutions Grants (ESG), or Housing for Persons With AIDs (HOPWA) program grants until the Consolidated Plan is approved.
Dated: May 18, 2018. Anna Maria Far´ıas,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11145 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR–5173–N–16]
Affirmatively Furthering Fair Housing: Withdrawal of Notice Extending the Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Notice; withdrawal.
SUMMARY: This notice withdraws HUD’s January 5, 2018, notice extending the submission deadline for an Assessment of Fair Housing (AFH) by local government consolidated plan program participants. DATES: Applicable May 23, 2018, the document published at 83 FR 683 on January 5, 2018, is withdrawn. FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202–402– 6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1–800–877–8339.
7 See 24 CFR 91.500.

SUPPLEMENTARY INFORMATION: HUD’s Affirmatively Furthering Fair Housing (AFFH) regulations (24 CFR 5.150– 5.168) provide that program participants must submit an Assessment of Fair Housing (AFH) using a HUD-provided assessment tool. See e.g., 24 CFR 5.154. The regulations further provide a schedule of time frames by which different types of program participants must submit an assessment using the appropriate HUD-provided tool. See 24 CFR 5.160(a). These time frames are connected to an individual program participant’s multi-year consolidated planning process. On January 5, 2018, at 83 FR 683, HUD published a Federal Register notice extending the time frame applicable to local government consolidated plan program participants. HUD is withdrawing the January 5, 2018, notice. If HUD later finds it prudent to revise the regulations, including by revising the submission schedule, HUD will publish a notice of proposed rulemaking to that effect for public comment.
Dated: May 18, 2018. Anna Maria Farı´as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018–11143 Filed 5–21–18; 4:15 pm]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–R8–ES–2018–N048; FXES11130800000–178–FF08E00000]
Endangered Species Recovery Permit Applications
AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of receipt of permit applications; request for comment.
SUMMARY: We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The ESA also requires that we invite public comment before issuing recovery permits to conduct certain activities with endangered species. DATES: Comments on these permit applications must be received on or before June 22, 2018. ADDRESSES: Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and

Wildlife Service, 2800 Cottage Way, Room W–2606, Sacramento, CA 95825 (telephone: 916–414–6464; fax: 916– 414–6486). Please refer to the respective permit number for each application when submitting comments. FOR FURTHER INFORMATION CONTACT: Daniel Marquez, Fish and Wildlife Biologist; see ADDRESSES (telephone: 760–431–9440; fax: 760–431–9624). SUPPLEMENTARY INFORMATION: The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.). We seek review and comment from local, State, and Federal agencies and the public on the following permit requests
Applicants
Permit No. TE–204436
Applicant: Johanna Kisner, Orcutt, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the tidewater goby (Eucyclogobius newberryi) in conjunction with survey activities throughout the range of the species in California for the purpose of enhancing the species’ survival.
Permit No. TE–185595
Applicant: Kelly Bayne, Sacramento, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), San Diego fairy shrimp (Branchinecta sandiegonensis), Riverside fairy shrimp (Streptocephalus woottoni), and vernal pool tadpole shrimp (Lepidurus packardi); and take (harass by survey, capture, handle, and release) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (Ambystoma californiense) in conjunction with survey activities throughout the range of the species in California for the purpose of enhancing the species’ survival.
Permit No. TE–101462
Applicant: Peter Sarafian, Los Osos, California
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the Morro shoulderband snail (Banded dune) (Helminthoglypta walkeriana) in

daltland on DSKBBV9HB2PROD with NOTICES

VerDate Sep<11>2014 17:33 May 22, 2018 Jkt 244001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\23MYN1.SGM 23MYN1

 
 Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING

*

ALLIANCE, et al.,

*

Plaintiffs,

* No. 18-cv-01076

v.

*

BEN CARSON, et al.,

*

Defendants.

* * * * * * * * * * * * *

BRIEF OF THE STATES OF MARYLAND, CALIFORNIA, MASSACHUSETTS, VIRGINIA, AND WASHINGTON; THE DISTRICT OF COLUMBIA; AND THE
CITIES OF AUSTIN, TEXAS; NEW ORLEANS, LOUISIANA; OAKLAND, CALIFORNIA; PORTLAND, OREGON; SEATTLE, WASHINGTON; AND
TOLEDO, OHIO AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION AND
FOR SUMMARY JUDGMENT

BRIAN E. FROSH Attorney General of Maryland

JOHN R. GRIMM (Bar No. 1018892) Assistant Attorney General Maryland Office of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 410-576-6339 410-576-6955 (facsimile) jgrimm@oag.state.md.us

Attorneys for Amicus Curiae State of Maryland

June 5, 2018

Additional Counsel Listed on Signature Page

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 2 of 21

TABLE OF CONTENTS Page

STATEMENT OF INTEREST OF AMICI CURIAE ........................................................ 1

ARGUMENT....................................................................................................................... 1

I.

THE AFFIRMATIVELY FURTHERING FAIR HOUSING RULE ASSISTS HUD

GRANTEES IN MEETING THEIR OBLIGATION TO PROMOTE FAIR HOUSING

OPPORTUNITIES......................................................................................................... 2

A. The Analysis of Impediments Model that Preceded the Current Rule Was Ineffective.............................................................................................. 3

B. The Affirmatively Furthering Fair Housing Rule Has Already Produced Important Beneficial Results......................................................... 6

II. THE COMPARATIVELY LOW RATE OF REJECTED ASSESSMENTS SHOWS THAT THE AFFH RULE IS WORKING AS INTENDED............................................................ 9

III. BY REPEALING THE ASSESSMENT TOOL WITHOUT SEEKING PUBLIC COMMENT, HUD IGNORED ESTABLISHED RULES OF ADMINISTRATIVE PROCEDURE. ........................................................................................................... 12

CONCLUSION ................................................................................................................. 15

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 3 of 21
TABLE OF AUTHORITIES
Cases Page
*Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) ............................................... 12 Environmental Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983)..................... 12 NAACP v. Secretary of Hous. and Urban Dev., 817 F.2d 149 (1st Cir. 1987) ................... 3 NAACP v. Harris, 567 F. Supp. 637 (D. Mass. 1983) ........................................................ 3 *Sorenson Commc’ns, Inc. v. FCC, 755 F.3d 702 (D.C. Cir. 2014)................................. 14 *Utility Solid Waste Activities Group v. EPA, 236 F.3d 749 (D.C. Cir. 2001)................. 12
Statutes 5 U.S.C. § 533(b)(3)(A)..................................................................................................... 14 5 U.S.C. § 553(b)(3)(B)..................................................................................................... 14 5 U.S.C. § 553(c) ............................................................................................................... 12 42 U.S.C. § 3601 ................................................................................................................. 2 42 U.S.C. § 3608(d)............................................................................................................. 2 42 U.S.C. § 3608(e)(5) ........................................................................................................ 2
Regulations 24 C.F.R. § 5.152................................................................................................................. 5 24 C.F.R. §§ 5.160 through 5.166 ....................................................................................... 5 *Affirmatively Furthering Fair Housing, 78 Fed. Reg. 43,710 (July 19, 2013) ........... 8, 10 *Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,273 (July 16, 2015) ....... 4, 7, 10 *Affirmatively Furthering Fair Housing: Extension of Deadline for
Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83 Fed. Reg. 685 (January 5, 2018) ....................................................... 12 *Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 Fed. Reg. 23,922 (May 23, 2018)........ 1, 9, 10, 12, 14 *Affirmatively Furthering Fair Housing (AFFH): Responsibility to Conduct Analysis of Impediments, 83 Fed. Reg. 23,927 (May 23, 2018) ..................... 6
ii

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 4 of 21
Consolidated Submission for Community Planning and Development Programs, 60 Fed. Reg. 1878 (January 5, 1995) ............................................................................. 3
Miscellaneous
HUD, Fair Housing Planning Guide, 1-2 (Mar. 1996), available at https://www.hud.gov/sites/documents/FHPG.PDF ....................................................... 3
Letter from Caroline Peattie, Executive Director, Fair Housing Advocates of Northern California (Mar. 5, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0037 ......................... 7
Letter from Diane Yentel, President and CEO, National Low Income Housing Coalition at 2 (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0034 (last accessed May 18, 2018) ................................................................................................. 9
Letter from Jennifer Yost, Department of Human Services, City of Seattle (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-20180001-0051 ...................................................................................................................... 8
Letter from Kathy Brown, Boston Tenant Corporation (Mar. 8, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0039 ......................... 7
Letter from Laurel Blatchford, Enterprise Community Partners (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-20180001-0021 ...................................................................................................................... 7
Letter from Lisa Cylar Barrett, Director of Federal Policy, PolicyLink (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-20180001-0058 ...................................................................................................................... 7
Nikole Hannah-Jones, Living Apart: How the Government Betrayed a Landmark Civil Rights Law (June 25, 2015), available at https://www.propublica.org/article/living-apart-how-the-government-betrayeda-landmark-civil-rights-law. .......................................................................................... 3
U.S. Gov’t Accountability Office, GAO-10-905, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (2010), available at https://www.gao.gov/assets/320/311065.pdf ................................................................. 4
Authorities upon which we chiefly rely are marked with asterisks.
iii

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 5 of 21
STATEMENT OF INTEREST OF AMICI CURIAE Amici curiae are the States of Maryland, California, and Washington, the Commonwealths of Massachusetts and Virginia, the District of Columbia, and the Cities of Austin, Texas; New Orleans, Louisiana; Oakland, California; Portland, Oregon; Seattle, Washington; and Toledo, Ohio. Amici are recipients of funds from the Department of Housing and Urban Development (“HUD”) and states in which HUD grantees are located, and are subject to HUD’s 2015 Affirmatively Furthering Fair Housing Rule. Ostensibly the beneficiaries of HUD’s decision to withdraw a key element of its Affirmatively Furthering Fair Housing Rule, amici have a responsibility to take affirmative steps to ensure increased opportunities for fair housing within their jurisdictions, and a strong interest in seeing that HUD meets its obligations to assist HUD grantees in facilitating fair housing opportunities. Amici submit this brief pursuant to Local Rule LCvR 7(o)(1). No party’s counsel has authored this brief in whole or in part, and no party’s counsel or other person contributed money that was intended to fund the preparation or submission of this brief.
ARGUMENT HUD’s decision to withdraw its Local Government Assessment Tool—an essential component of its long-overdue Affirmatively Furthering Fair Housing Rule—results in an indefinite suspension of a carefully tailored regulatory scheme years in the making. Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 Fed. Reg. 23,922 (May 23, 2018). By taking this drastic step without first soliciting public comment, HUD ignored the views of the stakeholders in whose

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 6 of 21

interest it purported to act, as well as bedrock principles of administrative procedure.

HUD’s May 23, 2018 order marks the second time since January that the agency has

attempted to dismantle the Affirmatively Furthering Fair Housing Rule without first

providing notice and soliciting public comment. Worse, HUD’s primary justification for

repealing its assessment tool—the supposedly high percentage of Assessments of Fair

Housing (“Assessments”) that HUD failed to initially accept—is actually evidence that the

Affirmatively Furthering Fair Housing program is functioning as HUD intended. By

primarily relying on an erroneous justification, HUD acted in a prototypically arbitrary and

capricious manner by withdrawing the assessment instrument. The Court should grant

Plaintiffs’ motion.

I.

THE AFFIRMATIVELY FURTHERING FAIR HOUSING RULE ASSISTS HUD

GRANTEES IN MEETING THEIR OBLIGATION TO PROMOTE FAIR

HOUSING OPPORTUNITIES.

The 2015 Affirmatively Furthering Fair Housing Rule corrected deficiencies that

made its predecessor ineffective, and provides HUD grantees much-needed help in meeting

their statutory obligations. Now, HUD’s May 23, 2018 order withdrawing the assessment

tool without any firm plans for replacing it will delay the new rule’s benefits indefinitely.

This will upset significant progress that has already been made under the new regime, and

frustrate the Fair Housing Act’s mandate of facilitating the promotion of fair housing

options.

2

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 7 of 21
A. The Analysis of Impediments Model that Preceded the Current Rule Was Ineffective.
The Fair Housing Act mandates that HUD administer its programs “in a manner affirmatively to further” the Fair Housing Act’s policy of “provid[ing], within constitutional limitations, for fair housing throughout the United States.” See 42 U.S.C. §§ 3601, 3608(d), (e)(5). Despite this mandate, HUD failed for decades to fully embrace its obligation to affirmatively further fair housing. See, e.g., NAACP v. Secretary of Hous. and Urban Dev., 817 F.2d 149, 154 (1st Cir. 1987) (rejecting HUD’s position that the mandate to affirmatively further fair housing only required HUD “simply to refrain from discriminating itself or purposely aiding the discrimination of others”); NAACP v. Harris, 567 F. Supp. 637, 644 (D. Mass. 1983) (finding that HUD’s failure to use its “immense leverage” to provide “desegregated housing so that the housing stock is sufficiently large to give minority families a true choice of location” “seriously impede[d]” HUD’s obligation to affirmatively further fair housing); see also Nikole Hannah-Jones, Living Apart: How the Government Betrayed a Landmark Civil Rights Law (June 25, 2015), available at https://www.propublica.org/article/living-apart-how-the-governmentbetrayed-a-landmark-civil-rights-law. In 1996, HUD, acknowledging its “failures” to “affirmatively further fair housing in the programs it administers,” promulgated regulations assigning that responsibility to grantees. HUD, Fair Housing Planning Guide, 1-2 (Mar. 1996), available at https://www.hud.gov/sites/documents/FHPG.PDF; Consolidated Submission for Community Planning and Development Programs, 60 Fed. Reg. 1878 (January 5, 1994) (codified at 24 C.F.R. Part 91). As a result of these failures, HUD
3

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 8 of 21

required grantees to conduct an “Analysis of Impediments to Fair Housing Choice,” an

exercise intended to require jurisdictions to identify barriers to fair housing and create plans

to overcome them. See id at 1905, 1910.

The Analysis of Impediments model turned out to be another unproductive step in

carrying out the Fair Housing Act’s mandates concerning fair housing for local

governments. In 2010, the Government Accountability Office published an assessment of

the Analysis of Impediments process, finding that “it is unclear whether the [Assessment

of Impediments] is an effective tool for grantees . . . to identify and address impediments

to fair housing.” U.S. Gov’t Accountability Office, GAO-10-905, Housing and

Community Grants: HUD Needs to Enhance Its Requirements and Oversight of

Jurisdictions’

Fair

Housing

Plans

(2010),

available

at

https://www.gao.gov/assets/320/311065.pdf (the “GAO Report”). The GAO Report found

that, among other shortcomings, “HUD regulations do not establish requirements for

updating [Analyses of Impediments] or their format, and grantees are not required to

submit [Analyses of Impediments] to the department for review.” HUD acknowledged the

deficiencies of the Analysis of Impediments process when it promulgated the 2015

Affirmatively Furthering Fair Housing Rule, noting the lack of clear guidelines or

parameters as to what an Analysis of Impediments should contain or how HUD would

evaluate it. See Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,312 (Jul.

16, 2015). As the entities previously responsible for the preparation of Analyses of

Impediments, amici also recognize that this previous process was deeply flawed. HUD’s

4

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 9 of 21
hands-off approach and lack of guidance offered amici little insight as to whether they were meeting their affirmative obligations under the FHA.
The Affirmatively Furthering Fair Housing Rule, by contrast, provides clarity about what amici must do in order to affirmatively further fair housing in their jurisdictions. The Rule establishes, for the first time, a definition for the term “affirmatively further fair housing,” which includes “taking meaningful actions” to, in addition to complying with civil rights and fair housing laws, “address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, [and] transforming racially and ethnically concentrated areas of poverty into areas of opportunity.” 24 C.F.R. § 5.152. Critically, the Rule replaced the Analysis of Impediments model and required, instead, that program participants create an Assessment of Fair Housing using the Local Assessment Tool. The Local Assessment Tool, developed through regular notice and comment rulemaking, requires local governments to answer a series of standardized questions designed to properly identify and assess fair housing issues in developing their housing development goals. Consequently, under the Rule, there is now a standardized reporting process that provides jurisdictions with the data and guidance necessary to properly evaluate and assess whether they are meeting their obligations. See id. §§ 5.160 through 5.166. And, crucially, whereas the Analysis of Impediments process left grantees shouldering all responsibility with no guarantee of feedback from HUD, the Affirmatively Furthering Fair Housing Rule represents a commitment of resources and support by HUD to substantively assist grantees in meeting their obligations under the law.
5

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 10 of 21
HUD’s May 23, 2018 notice upends all these improvements for local governments. While reminding HUD grantees that they must continue to meet their obligations to further fair housing, HUD instructed plan participants that have not yet submitted Assessments to revert to the flawed Analysis of Impediments procedures under which HUD abdicates all responsibility for supporting compliance with the Fair Housing Act’s mandates. See 83 Fed. Reg. at 23,926; Affirmatively Furthering Fair Housing (AFFH): Responsibility to Conduct Analysis of Impediments, 83 Fed. Reg. 23,927 (May 23, 2018). Thus, HUD has undercut jurisdictions that have devoted significant resources to compliance with the Affirmatively Furthering Fair Housing Rule, created uncertainty as to how HUD will hold grantees accountable for expenditure of federal funds, and potentially increased grantees’ litigation exposure. See 80 Fed. Reg. at 42,273 (concluding that the Affirmatively Furthering Fair Housing Rule would result in “fewer instances of litigation pertaining to the failure to affirmatively further fair housing”). All of this also comes at the expense of the significant benefits that have already resulted from the Affirmatively Furthering Fair Housing Rule.
B. The Affirmatively Furthering Fair Housing Rule Has Already Produced Important Beneficial Results.
In the short time it has been in place, HUD’s Affirmatively Furthering Fair Housing Rule has led to successful outcomes in a number of jurisdictions. (See generally Am. Compl. ¶¶ 7, 112-13, ECF No. 18). Amici and other plan participants have benefited from the high-quality data and assessment tools provided by HUD pursuant to the Rule, the
6

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 11 of 21
Rule’s focus on community engagement, and the Rule’s requirement to form goals to address barriers to fair housing.
The City of Philadelphia is rightly held up by Plaintiffs as a model of the promise of the AFFH Rule. (See Am. Compl. ¶ 113.) Like Philadelphia, the City of New Orleans partnered with its local Public Housing Authority and community groups, yielding significant community participation in the development of their Assessment. Letter from Lisa Cylar Barrett, Director of Federal Policy, PolicyLink (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0058 (“PolicyLink Letter”). Marin County formed a Community Advisory Group and an Assessment of Fair Housing Steering Committee, which has been gathering input from community members since 2016; the City of Boston has held 14 community meetings and received over 2,500 responses to a housing survey. Letter from Caroline Peattie, Executive Director, Fair Housing Advocates of Northern California (Mar. 5, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0037; Letter from Kathy Brown, Boston Tenant Corporation (Mar. 8, 2018), available at https://www.regulations.gov/document?D=HUD-2018-0001-0039. Undeniably, public engagement processes under the Affirmatively Furthering Fair Housing Rule have been much more robust across the board than under the Analysis of Impediments regime.
All of these results are consistent with the Affirmatively Furthering Fair Housing Rule’s goal of “[e]ncourag[ing] and facilitat[ing] regional approaches to address fair housing issues, including collaboration across jurisdictions and [Public Housing Authorities].” 80 Fed. Reg. at 42,273. The first regional Assessment was submitted by
7

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 12 of 21

five communities in the Kansas City metropolitan area in 2016. PolicyLink Letter at 4.

And other jurisdictions, including in Northeast Ohio were in the process of developing joint

regional Assessment submissions at the time HUD initially attempted to suspend the Rule

in its now-repealed January 5 order. Letter from Laurel Blatchford, Enterprise Community

Partners (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-

2018-0001-0021. The city of Seattle, which successfully completed its Assessment in

2017, praised the utility of the Assessment of Fair Housing mapping and database tools in

conducting regional comparisons. Letter from Jennifer Yost, Department of Human

Services,

City

of

Seattle

(Mar.

6,

2018), available

at https://www.regulations.gov/document?D=HUD-2018-0001-0051.

These results demonstrate that by enacting the Affirmatively Furthering Fair

Housing Rule, HUD has taken important strides toward improving the flawed Analysis of

Impediments approach. See Affirmatively Furthering Fair Housing, 78 Fed. Reg. 43,710,

43,713 (Jul. 19, 2013) (noting need to revise regulations to improve promotion of fair

housing). HUD’s decision to indefinitely suspend the Assessment of Fair Housing

requirement by withdrawing the Local Assessment Tool undermines this progress. As

HUD has already concluded, meaningful improvements to fair housing choice require more

collaboration with HUD and a more structured framework for program participants than

previous regulations provided. Id. It is therefore clear from the Affirmatively Furthering

Fair Housing Rule’s successes and HUD’s own findings that indefinitely suspending an

essential component of the Rule will do serious harm to the “promot[ion of] more effective

fair housing and planning.” Id. at 43,714. 8

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 13 of 21
II. THE COMPARATIVELY LOW RATE OF REJECTED ASSESSMENTS SHOWS THAT THE AFFH RULE IS WORKING AS INTENDED. The loss of the benefits from the Affirmatively Furthering Fair Housing Rule would
be problematic enough if it had been the product of reasoned decision-making by HUD. But it was not. In deciding to effectively suspend the Affirmatively Furthering Fair Housing Rule, HUD misunderstood the goals of its own regulations, incorrectly concluding that a 37% initial acceptance rate for Assessment submissions proved that the new process was fatally flawed.
HUD justifies its indefinite repeal of the Assessment Tool on the ground that only about a third of Assessments were initially accepted. 83 Fed. Reg. at 23,923. But this misapprehends how the Affirmatively Furthering Fair Housing program was intended to function. From its inception, HUD envisioned that the Assessment process would be an iterative one, in which grantees and HUD would work together to revise the Assessments until they met the goals of the Affirmatively Furthering Fair Housing Rule. By its very design, the Affirmatively Furthering Fair Housing program assumes that some submissions will initially be rejected. HUD intended program participants to submit their initial Assessment proposals, with HUD, in turn, providing “data, meaningful technical assistance, and guidance,” in order to improve a participant’s Assessment before accepting it. 78 Fed. Reg. at 43,713. HUD understood that in this back-and-forth process, many Assessments might not be accepted upon first submission, and provided that if it did not accept an Assessment, it would “provide the program participant with the specific reasons for the non-acceptance, the actions the program participant needs to take to meet the criteria
9

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 14 of 21
for acceptance, and, as appropriate, technical assistance to meet [Assessment] requirements.” Id. at 43,715. And consistent with this scheme, many of the Assessments not initially accepted by HUD were subsequently accepted after collaborative revision. See Letter from Diane Yentel, President and CEO, National Low Income Housing Coalition at 2 (Mar. 6, 2018), available at https://www.regulations.gov/document?D=HUD-20180001-0034 (last accessed May 18, 2018).
HUD also intentionally required plan participants to submit Assessments early enough in time that HUD could work with them to “correct any deficiencies . . . such that funding to program participants will not be delayed” by an initial rejection, further indicating that HUD expected an appreciable number of Assessments not to be initially accepted. 80 Fed. Reg. at 42,311 (rejecting comments urging HUD not to review Assessments prior to reviewing other mandatory filings). Significantly, HUD’s May 23 order does not identify any jurisdictions facing defunding as a result of their inability to create an acceptable AFH. 83 Fed. Reg. at 23,922.
Because the Assessment of Fair Housing procedure is collaborative by design, it is to be expected that some number of Assessments will not be accepted when they are first submitted. Indeed, HUD’s commitment to providing technical assistance, useful data, and guidance to grant recipients would be meaningless if they had the ability to submit immediately acceptable Assessments without any input from HUD. The Affirmatively Furthering Fair Housing Rule was intended to replace a regulatory regime that did not impose meaningful standards on plan participants and which the implementing agency acknowledged was ineffective. Under the previous regulation, plan participants were able
10

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 15 of 21
to pay “uneven attention” to their submissions, which consequently exhibited “uneven quality.” 78 Fed. Reg. at 43,713. In fact, the GAO Report found that only 64% of grantees even had current Analyses of Impediments. GAO Report at 10. The new system, in contrast, provides plan participants with clear criteria and a framework for producing substantive Assessments that will actually improve fair housing options within their jurisdictions. The acceptance rates for Assessments is consistent with HUD’s having achieved the desired result of improving beneficiaries’ efforts to further fair housing.
Moreover, any new program is going to require grantees to become familiar with new filing obligations, and will involve initial difficulties that must be worked out over time. But it is reasonable to expect that grantees’ submissions will improve with time, even if HUD does not change the Assessment Tool. Thus, even if HUD is correct, and its Assessment Tool needs to be modified, it does not explain why a complete withdrawal of that tool is necessary or appropriate in the interim, especially when HUD makes no plans and establishes no timeframe for replacing it.
Against this backdrop, it is puzzling that HUD focuses on the initial, as opposed to ultimate acceptance rate as the metric of effectiveness. Indeed, if all submissions were initially accepted, it would suggest either that the new regulations had failed to adequately increase commitments to fair housing over those required under the Analysis of Impediments system, or that HUD was not taking seriously its obligation to provide guidance to participants in crafting their Assessments. It was arbitrary and capricious of HUD to treat evidence of the new program’s proper functioning as evidence that it needed to be suspended, and the Court should grant the Plaintiffs’ motion and correct that decision.
11

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 16 of 21

III. BY REPEALING THE ASSESSMENT TOOL WITHOUT SEEKING PUBLIC COMMENT, HUD IGNORED ESTABLISHED RULES OF ADMINISTRATIVE PROCEDURE.

HUD’s May 23, 2018 notice marks the second time in six months that HUD has

failed to seek public comment before engaging in rulemaking. Both the May notice and

HUD’s now-repealed January 5 notice extending the deadline for submitting Assessments

took immediate effect, and only set a schedule for retroactive public comment. See 83 Fed.

Reg. at 23,926 (“HUD is immediately withdrawing the Local Government Assessment

Tool.”); 83 Fed. Reg. at 685 (“HUD is issuing this notice for applicability immediately

upon publication[.]”). By failing to engage in true notice-and-comment rulemaking, HUD

ignored basic principles of administrative law.

One of the most basic tenets of the Administrative Procedure Act is that an agency

“shall give interested persons an opportunity to participate in the rulemaking,” and that it

may only promulgate rules “[a]fter consideration of the relevant matter presented[.]”

5 U.S.C. § 553(c) (emphasis added). There can be little doubt that HUD’s decision to

repeal the Assessment Tool constitutes a rulemaking: the D.C. Circuit has held that an

agency’s determination that a policy “requires reconsideration,” or its decision to “delay[]

[a] rule’s effective date” is “tantamount to amending or revoking a rule,” which is thus

subject to the Administrative Procedure Act’s notice-and-comment requirements. Clean

Air Council v. Pruitt, 862 F.3d 1, 6 (2017) (per curiam) (citing Environmental Def. Fund,

Inc. v. Gorsuch, 713 F.2d 802, 813 (D.C. Cir. 1983)); Utility Solid Waste Activities Group

v. EPA, 236 F.3d 749 (D.C. Cir. 2001) (holding that amendment to correct error in rule was

subject to notice-and-comment rulemaking). 12

Yet HUD stripped the Affirmatively

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 17 of 21
Furthering Fair Housing Rule of a fundamental component without first providing plan participants an opportunity to comment on that proposal as the Administrative Procedure Act required. Inexplicably, HUD’s May 23, 2018 notice does not even acknowledge the comments HUD received when it purported to suspend the deadline for submitting Assessments in January—an action it also took without first receiving public comment— even though the January 5 and May 23 orders were both justified by the same concern over plan participants’ ability to submit acceptable Assessments.1
HUD’s reliance on the Paperwork Reduction Act to justify its failure to submit its proposal for notice and comment misses the mark. It is irrelevant that “the [Paperwork Reduction Act] establishes a notice-and-comment process for information collection approvals, but not for withdrawals,” 83 Fed. Reg. at 23,923, because the Paperwork Reduction Act’s silence on a particular matter cannot relieve an agency of its general obligations under the Administrative Procedure Act. And under the Administrative Procedure Act, an agency may not suspend notice-and-comment rulemaking unless it “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary,
1 In fact, despite receiving dozens of comments to its January 5 order, HUD never took any further action in response to the comments it received, making it all the less likely that its call for retroactive comments to its May 23 order will be anything but an empty formality.
13

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 18 of 21
or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B) (emphasis added).2 HUD did not articulate any authority—much less incorporate adequate findings in its order—that would justify suspending the Administrative Procedure Act’s notice-and-comment procedure here. For that reason alone, its order withdrawing the assessment tool is invalid. See Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706-07 (D.C. Cir. 2014) (vacating rule and holding that agency violated Administrative Procedure Act by suspending notice-andcomment rulemaking without adequate justification). The Court should not allow HUD to make major modifications to its Affirmatively Furthering Fair Housing Rule without first considering the views of affected parties.
2 An agency also does not need to subject “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” to public comment. 5 U.S.C. § 533(b)(3)(A). HUD has not identified how any of these exceptions would apply.
14

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 19 of 21

CONCLUSION

The Court should grant the Plaintiffs’ Renewed Motion for a Preliminary Injunction

and for Summary Judgment.

June 5, 2018

Respectfully Submitted,

BRIAN E. FROSH Attorney General of Maryland

/s/ JOHN R. GRIMM (Bar No. 1018892) Assistant Attorney General Maryland Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 410-576-6339 (tel.) 410-576-6955 (fax) jgrimm@oag.state.md.us

Attorneys for Amicus Curiae State of Maryland

XAVIER BECERRA Attorney General State of California 1300 I St. Sacramento, CA 95814

ROBERT W. FERGUSON Attorney General of Washington P.O. Box 40100 1125 Washington Street SE Olympia, WA 98504-0100

MAURA HEALEY Attorney General of Massachusetts One Ashburton Place Boston, MA 02108
KARL A. RACINE Attorney General for the District of Columbia 441 4th Street, NW, Suite 600 South Washington, D.C. 20001

MARK R. HERRING Attorney General of Virginia The Barbara Johns Building 202 N. Ninth St. Richmond, VA 23219
ANNE L. MORGAN City Attorney, City of Austin P.O. Box 1546 Austin, TX 78767-1546
15

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 20 of 21

SUNNI LEBEOUF City Attorney CHERRELL SIMMS TAPLIN Sr. Chief Deputy City Attorney City of New Orleans 1300 Perdido Street New Orleans, LA 70112
TRACY REEVE Portland City Attorney 1221 SW Fourth Avenue, Suite 430 Portland, OR 97204
PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097

BARBARA J. PARKER City Attorney City of Oakland 1 Frank H. Ogawa Plaza, 6th floor Oakland, CA 94612
DALE R. EMCH Director of Law City of Toledo One Government Center, St. 2250 Toledo, OH 43604

16

Case 1:18-cv-01076-BAH Document 27 Filed 06/05/18 Page 21 of 21
CERTIFICATE OF SERVICE I hereby certify that on June 5, 2018, the foregoing document was filed with the Clerk of the Court and served on all counsel of record electronically through the Court’s CM/ECF system.
/s/ John R. Grimm John R. Grimm

 
 Case 1:18-cv-01076-BAH Document 2 Filed 05/08/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, et al.,
Plaintiffs, v. BEN CARSON, et al., Defendants.

Civ. Action No. _______

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND FOR EXPEDITED SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1, Plaintiffs hereby move the Court for a preliminary injunction ordering Defendants to rescind their January 5, 2018 delay and suspension of the requirements of the Affirmatively Furthering Fair Housing (AFFH) Rule and take all other necessary steps to ensure implementation of the AFFH Rule on the schedule that was in place before that action.
In addition, pursuant to Federal Rule of Civil Procedure 56, Plaintiffs hereby move for expedited summary judgment on the grounds that there is no genuine issue of disputed material fact and that they are entitled to judgment as a matter of law. Plaintiffs respectfully request expedited consideration of this portion of the combined Motion.
In support of this combined Motion, Plaintiffs submit the accompanying (1) memorandum; (2) declarations of National Fair Housing Alliance’s (NFHA) President and Chief Executive Officer Lisa Rice, NFHA’s Vice President for Housing Policy and Special Projects Debby Goldberg, the Texas Low Income Housing Information Service’s CoDirector John Henneberger, Texas Appleseed’s Director of the Disaster Recovery and Fair Housing Project Madison Sloan, the National Law Center on Homelessness & Poverty’s

Case 1:18-cv-01076-BAH Document 2 Filed 05/08/18 Page 2 of 4 Deputy Director Janet Hostetler, Professor Justin Steil of the Massachusetts Institute of

Technology’s Department of Urban Studies & Planning, the Greater New Orleans Fair

Housing Action Center’s Director of Policy & Communications Maxwell Ciardullo, and

the Public Interest Law Center of Philadelphia’s Staff Attorney Dan Urevick-Ackelsberg;

and (3) a proposed order.

Dated: May 8, 2018

Respectfully Submitted,

/s/ Sasha Samberg-Champion Sasha Samberg-Champion (DC Bar No. 981553) Sara Pratt (DC bar admission pending) Michael G. Allen (DC Bar No. 409068) RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 (202) 728-1888 ssamberg-champion@relmanlaw.com spratt@relmanlaw.com mallen@relmanlaw.com

Jon Greenbaum (DC Bar No. 489887) Joseph D. Rich (DC Bar No. 463885) Thomas Silverstein (DC Bar No. 1552406) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Washington, DC 20005 (202) 662-8331 jrich@lawyerscommittee.org

Philip Tegeler (DC Bar No. 1002526) Megan Haberle (DC bar admission pending) POVERTY & RACE RESEARCH ACTION COUNCIL 740 15th Street NW, Suite 300 Washington, DC 20005 (202) 360-3906 ptegeler@prrac.org

Rachel Goodman Sandra Park AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2500

2

Case 1:18-cv-01076-BAH Document 2 Filed 05/08/18 Page 3 of 4 rgoodman@aclu.org spark@aclu.org
Arthur B. Spitzer (DC Bar No. 235960) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW - 2nd floor Washington, DC 20005-2302 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org
Ajmel Quereshi (DC Bar No. 1012205) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 (202) 682-1300 aquereshi@naacpldf.org
Sherrilyn A. Ifill (NY Bar No. 2221422) Samuel Spital (NY Bar No. 4334595) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Allison M. Zieve (DC Bar No. 424786) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 (202) 588-1000
Attorneys for all Plaintiffs
Morgan Williams (pro hac vice application forthcoming) NATIONAL FAIR HOUSING ALLIANCE 1101 Vermont Ave. NW, Suite 710 Washington, DC 20005 (202) 898-1661 mwilliams@nationalfairhousing.org
Attorney for Plaintiff National Fair Housing Alliance
Madison Sloan (pro hac vice application forthcoming) TEXAS APPLESEED
3

Case 1:18-cv-01076-BAH Document 2 Filed 05/08/18 Page 4 of 4 1609 Shoal Creek Bld. # 201 Austin, TX 78701 (512) 473-2800 msloan@texasappleseed.net Attorney for Plaintiff Texas Appleseed
4

 
 Case 1:18-cv-01076-BAH Document 19 Filed 05/29/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, et al.,

Plaintiffs,

Civ. Action No. 1:18-cv-1076-BAH

v.

BEN CARSON, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND FOR EXPEDITED SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1, Plaintiffs hereby move the Court for a preliminary injunction ordering Defendants to (1) rescind their May 23, 2018 Notices that withdrew the Assessment Tool for Local Governments and instructed local jurisdictions not to comply with the requirements of the Affirmatively Furthering Fair Housing (AFFH) Rule; (2) reinstate the Assessment Tool for Local Governments; and (3) take all other necessary steps to ensure prompt implementation of the AFFH Rule.
In addition, pursuant to Federal Rule of Civil Procedure 56, Plaintiffs hereby move for expedited summary judgment on the grounds that there is no genuine issue of disputed material fact and that they are entitled to judgment as a matter of law. Plaintiffs respectfully request expedited consideration of this portion of the combined Motion.
In support of this combined Motion, Plaintiffs submit the accompanying (1) memorandum of law; (2) declarations of National Fair Housing Alliance’s (NFHA) President and Chief Executive Officer Lisa Rice, NFHA’s Vice President for Housing Policy and Special

Case 1:18-cv-01076-BAH Document 19 Filed 05/29/18 Page 2 of 4

Projects Deborah Goldberg, the Texas Low Income Housing Information Service’s Co-Director

John Henneberger, Texas Appleseed’s Director of the Disaster Recovery and Fair Housing

Project Madison Sloan, the National Law Center on Homelessness & Poverty’s Deputy Director

Janet Hostetler, Professor Justin Steil of the Massachusetts Institute of Technology’s Department

of Urban Studies & Planning, the Greater New Orleans Fair Housing Action Center’s Director of

Policy & Communications Maxwell Ciardullo, the Public Interest Law Center of Philadelphia’s

Staff Attorney Daniel Urevick-Ackelsberg, and the Mid-America Regional Council’s Director of

Research Services Franklin A. Lenk; and (3) a proposed order.

Dated: May 29, 2018

Respectfully Submitted,

/s/ Sasha Samberg-Champion Sasha Samberg-Champion (DC Bar No. 981553) Sara Pratt (DC bar admission pending, admitted pro hac vice) Michael G. Allen (DC Bar No. 409068) RELMAN, DANE & COLFAX PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 (202) 728-1888 ssamberg-champion@relmanlaw.com spratt@relmanlaw.com mallen@relmanlaw.com

Jon Greenbaum (DC Bar No. 489887) Joseph D. Rich (DC Bar No. 463885) Thomas Silverstein (DC Bar No. 1552406) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW Washington, DC 20005 (202) 662-8331 jrich@lawyerscommittee.org

Philip Tegeler (DC Bar No. 1002526) Megan Haberle (DC bar admission pending) POVERTY & RACE RESEARCH ACTION COUNCIL

2

Case 1:18-cv-01076-BAH Document 19 Filed 05/29/18 Page 3 of 4
740 15th Street NW, Suite 300 Washington, DC 20005 (202) 360-3906 ptegeler@prrac.org
Rachel Goodman Sandra Park AMERICAN CIVIL LIBERTIES UNION 125 Broad St., 18th Floor New York, NY 10004 (212) 549-2500 rgoodman@aclu.org spark@aclu.org
Arthur B. Spitzer (DC Bar No. 235960) AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW - 2nd floor Washington, DC 20005-2302 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org
Ajmel Quereshi (DC Bar No. 1012205) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 (202) 682-1300 aquereshi@naacpldf.org
Sherrilyn A. Ifill (NY Bar No. 2221422) Samuel Spital (NY Bar No. 4334595) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Allison M. Zieve (DC Bar No. 424786) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 (202) 588-1000
Attorneys for all Plaintiffs
3

Case 1:18-cv-01076-BAH Document 19 Filed 05/29/18 Page 4 of 4
Morgan Williams (pro hac vice application forthcoming) NATIONAL FAIR HOUSING ALLIANCE 1101 Vermont Ave. NW, Suite 710 Washington, DC 20005 (202) 898-1661 mwilliams@nationalfairhousing.org Attorney for Plaintiff National Fair Housing Alliance Madison Sloan (admitted pro hac vice) TEXAS APPLESEED 1609 Shoal Creek Bld. # 201 Austin, TX 78701 (512) 473-2800 msloan@texasappleseed.net Attorney for Plaintiff Texas Appleseed
4

 
 Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 1 of 77

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, et al.,
Plaintiffs,
v.
BENJAMIN C. CARSON, SR., M.D., in his official capacity as Secretary of Housing and Urban Development, et al.,
Defendants.

Civil Action No. (BAH) 18-1076 Chief Judge Beryl A. Howell

MEMORANDUM OPINION The Fair Housing Act, 42 U.S.C. §§ 3601, et seq., enacted in 1968, requires the U.S. Department of Housing and Urban Development (“HUD”) to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” fair housing, id. § 3608(e)(5). HUD acknowledges that the agency has not always administered programs in a manner to ensure that this long-standing statutory requirement affirmatively to further fair housing (“AFFH”) is met “as effective[ly] as had been envisioned.” HUD Proposed Rule, Affirmatively Furthering Fair Housing (“Proposed AFFH Rule”), 78 Fed. Reg. 43,710, 43,710 (July 19, 2013). In 2015, HUD promulgated a rule, by notice-and-comment rulemaking, to “provide[ ] HUD program participants with an approach to more effectively and efficiently incorporate into their planning processes the duty to affirmatively further the purposes and policies of the Fair Housing Act,” including the AFFH requirement. HUD Final Rule, Affirmatively Furthering Fair Housing (“AFFH Rule”), 80 Fed. Reg. 42,272, 42,272 (July 16, 2015). Among the “[m]ajor [p]rovisions” in this new Rule, id. at 42,273, is a “standardized Assessment of Fair Housing (AFH)” process, id., to be rolled out along with an Assessment Tool

1

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 2 of 77
customized for different types of program participants, id. at 42,277, 42,339, 42,347, such as States, local government agencies and Public Housing Authorities (“PHAs”). To date, HUD has fully issued an Assessment Tool only for use by local government agencies. See generally HUD Notice, Affirmatively Furthering Fair Housing Assessment Tool: Announcement of Final Approved Document (“LG2015 Tool Announcement”), 80 Fed. Reg. 81,840 (Dec. 31, 2015); HUD Notice, Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the Assessment Tool for Local Governments (“LG2017 Tool Announcement”), 82 Fed. Reg. 4,388 (Jan. 13, 2017) (discussing issues with the LG2015 Tool and describing changes in the LG2017 Tool).
This case is about two of HUD’s notices, issued in May 2018, one of which withdraws the only extant Assessment Tool that was intended to help local government agencies measure progress in meeting the AFFH requirement. See generally HUD Notice, Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments (“LG2017 Withdrawal Notice”), 83 Fed. Reg. 23,922 (May 23, 2018). As a result, “currently no type of program participant has an Assessment Tool available for use.” HUD Notice, Affirmatively Furthering Fair Housing (AFFH): Responsibility to Conduct Analysis of Impediments (“AI Reliance Notice”), 83 Fed. Reg. 23,927, 23,927 (May 23, 2018). The other HUD notice at issue directs program participants to revert to prior HUD guidance that they “will conduct an analysis of impediments (AI) to fair housing choice within the jurisdiction.” Id.
HUD concedes that use of the LG2017 Tool and the AFH process laid out in the AFFH Rule is “superior” to the prior AI process in aiding program participants in meeting the AFFH requirement. Tr. Motions Hr’g (Aug. 9, 2018) (“Mot. Hr’g”) at 68:25–69:4, ECF No. 44; see also id. at 63:7–13 (responding to Court’s query whether HUD concedes “the AI process [ ] was
2

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 3 of 77

so terribly flawed,” HUD’s counsel stated “We’ve developed a record of that, certainly . . . . You’re right”). Nevertheless, in HUD’s view, the LG2017 Assessment Tool was “unworkable,” warranting its withdrawal. LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,923; see also Defs.’ Mem. Opp. Pls.’ Mot. Preliminary Injunction & Expedited Summ. J. (“Defs.’ Opp’n PI”) at 12– 13, ECF No. 33. The plaintiffs contend otherwise, viewing the withdrawal of the LG2017 Tool as impeding the progress made over the last few years to fulfill the statutory promise of furthering fair housing policies. See Am. Compl. ¶¶ 6, 11–12, ECF No. 18.
The plaintiffs, three non-profit organizations “with purposes that include promoting fair housing,” id. ¶¶ 13, seek preliminary and permanent injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), against HUD and Secretary Benjamin Carson in his official capacity (collectively, “HUD” or “defendants”), Am. Compl. ¶¶ 14, 19–20, 154–73, contending that the two May 2018 notices—one of which withdraws the LG2017 Tool and the other of which directs local government program participants “to revert to” the earlier AI assessment method, “effectively suspend[ ] the AFFH Rule indefinitely,” id. ¶ 9. In the plaintiffs’ view, these two notices “constitute unlawful agency action,” Am. Compl. ¶ 14, because they suspend the AFFH Rule without notice-and-comment procedures and because the withdrawal of the LG2017 Tool was arbitrary and capricious, id. ¶¶ 10–14.1
Pending before this Court are three motions. First, the plaintiffs have moved, pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, for a preliminary injunction ordering HUD “to (1) rescind [the] May 23, 2018 Notices,” referring to the LG2017 Withdrawal Notice and the AI Reliance Notice; “(2) reinstate the Assessment Tool for Local Governments”; and “(3) take all other necessary steps to ensure prompt implementation of the AFFH Rule.” Pls.’

1

The plaintiffs made clear at the motions hearing that these two notices were the focus of their complaint.

Mot. Hr’g at 6:19–7:5.

3

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 4 of 77
Mot. Preliminary Injunction & Expedited Summ. J. (“Pls.’ Mot. PI”) at 1, ECF No. 19. Second, the defendants have moved to dismiss the Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the plaintiffs lack standing. See generally Defs.’ Mot. Dismiss Pls.’ Am. Compl. (“Defs.’ MTD”), ECF No. 38. Third, the State of New York seeks to intervene on behalf of the plaintiffs pursuant to Federal Rule of Civil Procedure 24(a) or (b). NYS’s Mot. Intervene Supp. Pls. (“NYS’s Mot. Intervene”) at 1, ECF No. 24.
For the reasons provided below, the defendants’ motion to dismiss is granted and the remaining two motions for preliminary injunctive relief and to intervene are therefore denied.2 I. BACKGROUND
The relevant statutory and regulatory framework, as well as the facts from which this litigation arises, are presented below.3
A. Statutory and Regulatory Framework Since 1968, it has been “the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601. HUD’s general obligation to affirmatively further fair housing in line with this policy is discussed first, followed by a summary of HUD’s generally inadequate efforts to fulfill this obligation when administering housing block grant programs and ensuring compliance with statutory and regulatory requirements by program participants.

2

The plaintiffs have also moved for “expedited summary judgment,” pursuant to Federal Rule of Civil

Procedure 56, Pls.’ Mot. PI at 1, which motion is also denied.

3

The parties submitted numerous declarations supporting their positions with respect to the plaintiffs’

request for a preliminary injunction and expedited summary judgment. Each declaration and the associated exhibits

have been reviewed, but only those declarations and exhibits necessary for resolution of the instant motions are cited

herein. In addition, the Court has reviewed the substantial briefing submitted by amicus curiae in support of the

relief sought by the plaintiffs. See generally Nat’l Housing Law Project, et al., Brief as Amici Curiae Supp. Pls.’

Mot. PI & Summ. J., ECF No. 30; PolicyLink, Amicus Brief Supp. Pls.’ Renewed Mot. PI & Summ. J., ECF No. 29;

State of Maryland, et al., Brief as Amici Curiae Supp. Pls.’ Renewed Mot. PI & Summ. J., ECF No. 27.

4

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 5 of 77
1. Overview of the AFFH Requirement Congress enacted the Fair Housing Act as Title VIII of the Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 81 (“FHA” or the “Act”), over fifty years ago in an effort to achieve “truly integrated and balanced living patterns.” 114 CONG. REC. 3421, 3422 (1968) (statement of Sen. Mondale); see also Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (“[A]s Senator Mondale who drafted § 810(a) [‘Enforcement’ by HUD] said, the reach of the proposed law was to replace the ghettos ‘by truly integrated and balanced living patterns.’” (quoting 114 CONG. REC. at 3422)). The FHA was, in large part, a response to the heightened racial tensions and riots erupting in the United States throughout the 1960s, and the FHA’s passage reflected an understanding that “fair housing legislation” was “the best way for [ ] Congress” at that time “to start on the true road to integration.” 114 CONG. REC. at 3422 (statement of Sen. Mondale); see also Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2516 (2015) (explaining the FHA was passed in response to the assassination of Dr. Martin Luther King and the “new urgency” “the Nation faced . . . to resolve the social unrest in the inner cities”). The FHA thus prohibits discrimination based on “race, color, religion, sex, familial status, or national origin” in the sale and rental of housing and other residential real estate– related transactions. 42 U.S.C. §§ 3604–05. Accordingly, the Act requires HUD to “administer [ ] programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” fair housing, id. § 3608(e)(5), a requirement known as the “affirmatively further fair housing,” or “AFFH,” requirement. Courts have recognized that the Act “imposes upon HUD an obligation to do more than simply refrain from discriminating (and from purposely aiding discrimination by others).” NAACP v. Sec’y of Hous. & Urban Dev., 817 F.2d 149, 155 (1st Cir. 1987) (Breyer, J.) (noting that Congress’s goal in passing the FHA “reflects the desire to have HUD use its grant programs
5

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 6 of 77
to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases”); see also Shannon v. U.S. Dep’t of Hous. & Urban Dev., 436 F.2d 809, 821 (3d Cir. 1970) (remanding HUD decision about a proposed project change for HUD to consider the “substantial net reduction in supply of housing in the project area available to racial minority families,” as well as the “substantial net increase in racial minority families in the area as a result of the project,” which “is an equally obvious consideration”). Indeed, pursuant to the AFFH requirement, HUD must take action “to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.” Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973). HUD maintains discretion in determining how the agency will fulfill its AFFH obligation, but courts have “the power to review [ ] claim[s] that the Secretary has not ‘administer[ed]’ certain HUD programs ‘in a manner affirmatively to further’ the Act’s basic policy.” NAACP, 817 F.2d at 151 (last alteration in original) (quoting 42 U.S.C. § 3608(e)(5)).
2. HUD’s Housing Block Grant Programs One method by which HUD furthers its AFFH obligation is through the administration of housing block grant programs to State and local governments. The largest of these programs is the Community Development Block Grant (“CDBG”) Program, which was established under the Housing and Community Development Act of 1974, 42 U.S.C. § 5301, et seq., to “provide annual grants to provide housing and expand economic opportunities for low- and moderateincome persons.” Defs.’ Opp’n PI at 3; see also 42 U.S.C. § 5301(c) (explaining that the “primary objective” of the CDBG program is “the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income”). In addition to the CDBG
6

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 7 of 77
Program, HUD administers block grants through other programs, including the Emergency Solutions Grants (“ESG”) Program, 42 U.S.C. § 11371, et seq.; the HOME Investment Partnerships (“HOME”) Program, id. § 12741, et seq.; and the Housing Opportunities for Persons with AIDS (“HOPWA”) Program, id. § 12901, et seq. HUD also, through the U.S. Housing Act (“USHA”), id. § 1437c-1, et seq., provides grants to Public Housing Agencies (“PHAs”) for public housing operations as well as capital for tenant-based rental assistance. See AFFH Rule, 80 Fed. Reg. at 42,275.
Jurisdictions receiving these block grants must take certain actions to continue receiving funds, including “submit[ting] a consolidated plan” to HUD every three to five years. 24 C.F.R. § 570.302; see also id. pt. 91. A Consolidated Plan provides (1) “[a] planning document for the jurisdiction, which builds on a participatory process among citizens, organizations, businesses, and other stakeholders”; (2) “[a] submission for federal funds under HUD’s formula grant programs for jurisdictions”; (3) “[a] strategy to be followed in carrying out HUD programs”; and (4) “[a] management tool for assessing performance and tracking results.” Id. § 91.1(b)(1)–(4). With the Consolidated Plans, HUD is able to monitor a jurisdiction’s use of federal funds.
As relevant here, recipients of housing block grants must also certify that they will “affirmatively further fair housing.” 42 U.S.C. § 5304(b)(2) (local government recipients); id. § 5306(d)(7)(B) (State recipients); id. § 12705(b)(15) (State and local recipients); § 1437c1(d)(16) (PHA recipients). HUD’s recent efforts to assist program participants in meeting this requirement, as discussed next, are at issue in this litigation.
3. HUD’s Regulation of Grantees through Analysis of Impediments Beginning in the 1990s, a jurisdiction receiving HUD’s housing block grants could meet its AFFH obligations by “submit[ting] a certification that it will affirmatively further fair housing, which means that it will conduct an analysis to identify impediments to fair housing
7

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 8 of 77
choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard.” 24 C.F.R. § 91.225(a)(1) (1995); see also HUD Final Rule, Consolidated Submission for Community Planning and Development Programs, 60 Fed. Reg. 1,878, 1,905, 1,910, 1,912 (Jan. 5, 1994).4 This fair-housing planning analysis, known as the “Analysis of Impediments in Fair Housing” (“AI”), required jurisdictions certifying compliance with the AFFH obligation to: (1) conduct an AI, (2) take appropriate steps to address impediments identified through the AI, and (3) maintain related records. See 24 C.F.R. § 91.225(a)(1) (1995).
HUD issued guidance on the AI process in a 1996 Fair Housing Planning Guide. See generally U.S. DEP’T OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY, FAIR HOUSING PLANNING GUIDE (1996) (“1996 FAIR HOUSING PLANNING GUIDE”), available at https://www.hud.gov/sites/documents/fhpg.pdf. This Guide, which is still available, explains that, because HUD had “too often” failed in trying “to prescribe national remedies for local situations,” HUD developed the AI process to allow local communities to meet the AFFH obligation by “defin[ing] the problems, develop[ing] the solutions, and be[ing] held accountable for meeting the standards they set for themselves.” Id. at i. As a definitional matter, HUD clarified that actions “affirmatively further fair housing” when “steps are taken to assure that the housing is fully available to all residents of the community, regardless of race, color, national origin, gender, handicap, or familial status.” Id. at 5-4. To this end, “all affected people in the community” needed to “be at the table and participate in making those decisions.” Id. at i.

4

24 C.F.R. § 91.225 was promulgated to cover local governments, which are the relevant regulated entities

in this litigation. The regulations imposed analogous requirements for each State and consortium of local

governments acting as one local government. See 24 C.F.R. § 91.325 (1995) (State governments); id. § 91.425

(1995) (consortia).

8

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 9 of 77
The guidance document provides suggestions for adhering to the three components of the fair housing planning process, but none of the recommendations is binding. See id. at 2-7 to -26.
The AI process reflected HUD’s commitment at the time “to devolved decisionmaking,” id. at i, and did “not generally” require that AIs be submitted to HUD for review, id. at 2-24. “Instead, as part of the Consolidated Plan performance report, the jurisdiction” was required to provide “a summary of the AI and the jurisdiction’s accomplishments during the past program year” to HUD, which “could request the AI in the event of a complaint and could review the AI during routine on-site monitoring.” Id. at 2-24. HUD recommended, but did not require, “that jurisdictions conduct or update their AI at least once every 3 to 5 years (consistent with the Consolidated Plan cycle).” Id. at 2-6.
Weaknesses in the AI process as a method of ensuring compliance by program participants with the AFFH requirement were exposed “through litigation and reports and testimonies for some years.” U.S. GOV’T ACCOUNTABILITY OFFICE (“GAO”), RPT. NO. GAO-10905, HOUSING AND COMMUNITY GRANTS: HUD NEEDS TO ENHANCE ITS REQUIREMENTS AND OVERSIGHT OF JURISDICTIONS’ FAIR HOUSING PLANS 2 (2010) (“GAO 2010 REPORT”), available at https://www.gao.gov/assets/320/311065.pdf. These shortcomings were recognized by HUD in a 2009 internal study based on review of 45 AIs. See generally U.S. DEP’T OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF POLICY DEVELOPMENT AND RESEARCH, ANALYSIS OF IMPEDIMENTS STUDY (2009) (“HUD 2009 AI STUDY”), available at http://www.documentcloud.org/documents/365748-hud-reporting-compliance-report.html. For this study, HUD had solicited AIs from 70 randomly selected jurisdiction but received only 45, signaling an initial “cause for concern.” Id. at 15.
9

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 10 of 77
Based on the 45 AIs submitted, HUD observed that “[c]itizens seeking to obtain AIs would not consistently find them readily available,” that “many of the AIs obtained were completed over ten years ago and need to be updated,” that “about three-fourths were prepared by a single author or organization,” and that “a sizable proportion of the AIs reviewed did not contain key aspects recommended for inclusion by the [1996] Fair Housing Planning Guide.” Id. at 6–7, 15. HUD found that “[m]any jurisdictions have obviously taken the AI planning process very seriously,” but that the agency needed “to assess and work with [its] state and local partners, governmental and private, to explore options for improving the AI process and taking steps for translating it into positive action on the fair housing front.” Id. at 16. HUD recommended that the agency: (1) provide “enhanced [ ] guidance and assistance [to] increase completeness and quality” of AIs, which “could take the form of providing better access to federal data tools, broad-based training options or in some cases perhaps more in-depth technical assistance”; (2) find “other possible revenue streams” to ensure jurisdictions have funding sources for conducting AIs; (3) update the 1996 Fair Housing Planning Guide; and (4) provide public access to AIs. Id. at 16–17. Noting “a basic fact with AIs—that jurisdictions are not currently required to submit them to HUD,” id. at 17, the HUD 2009 AI Study pointed out that the agency has “the enforcement authority to decertify a jurisdiction’s Consolidated Plan if the AI is inadequate,” id. Nevertheless, the HUD 2009 AI Study cautioned that any consideration of “widespread HUD review, approval and/or enforcement” must “observe the fact that AIs are essentially local planning documents, and that options and resources available to localities vary widely.” Id. at 18.
The HUD 2009 AI Study was followed the next year by a more extensive study by the GAO, based on review of 441 AIs, that identified HUD’s “limited regulatory requirements and
10

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 11 of 77
oversight” as the main reason for weaknesses in the AI process. GAO 2010 Report (summary page).5 In particular, the GAO cited the absence of requirements in the regulations “for updating AIs or their format” and for grantees “to submit AIs to the department for review.” Id. As a result, AIs were “outdated” and grantees placed “a low priority on ensuring that their AIs serve[d] as effective fair housing planning tools.” Id.; see also id. at 31 (finding that “29 percent of all AIs [were] outdated, including 11 percent that were prepared in the 1990s” and thus that the AIs “d[id] not likely serve as effective planning documents to identify and address current potential impediments to fair housing choice”). The GAO made three recommendations: first, “that HUD establish standards for grantees to follow in updating their AIs and the format that they should follow in preparing the documents,” id. at 32; second, “as part of the AI format,” that “HUD require grantees to include time frames for implementing recommendations and the signatures of responsible officials” to enhance transparency and accountability, as well as to facilitate a way to measure jurisdictions’ progress, id. at 32–33; and, finally, that “HUD require,

5

The GAO 2010 Report opened by describing a 2006 lawsuit that documented AI process problems within a

single local government agency. That lawsuit was brought under the False Claims Act (“FCA”), 31 U.S.C. § 3729,

et seq., against Westchester County, New York, for falsely certifying its compliance with the AFFH requirement by

failing to consider race in its AI analysis, leading to the County’s improper receipt of “more than $45 million in

federal funds,” United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cty. (“Westchester

I”), 495 F. Supp. 2d 375, 378 (S.D.N.Y. 2007). In resolving partial motions for summary judgment, the Court found

that because the County had never conducted “the required analysis of race-based impediments” and had “never

created a contemporaneous record of how its management of the HUD-acquired funds or any other ‘appropriate’

steps it could take would overcome the effects of those impediments,” the County had made false certifications to

HUD by “represent[ing] that the County would take appropriate actions to overcome the effects of race-based

impediments to fair housing choice that its analysis had identified.” United States ex rel. Anti-Discrimination Ctr. of

Metro N.Y., Inc. v. Westchester Cty. (“Westchester II”), 668 F. Supp. 2d 548, 565 (S.D.N.Y. 2009). Nonetheless, the

court denied the plaintiffs’ motion for summary judgment as to the knowledge element of the FCA claim since,

“[d]espite the fact that HUD regulations do not require the submission of the AIs to HUD, the County submitted the

AIs to HUD as part of the Consolidated Plans,” and, thus, “the County’s voluntary submission at least permits the

inference that the County did not act in knowing and reckless disregard as to the falsity of its certifications.” Id. at

568. Under the resulting consent decree from this case, the County paid approximately $30 million to the United

States, “$21.6 million of which would be credited to the County’s HUD account to fund fair housing,” and also

“made various commitments to affirmatively further fair housing and to eliminate discrimination in housing

opportunities.” United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cty. (“Westchester

III”), 712 F.3d 761, 765 (2d Cir. 2013) (explaining the still-ongoing consent decree).

11

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 12 of 77
at a minimum, that grantees submit their AIs to the department on a routine basis and that HUD staff verify the timeliness of the documents, determine whether they adhere to established format requirements, assess the progress that grantees are achieving in addressing identified impediments, and help ensure the consistency between the AIs and other required grantee reports,” id. at 33.
According to HUD, the GAO 2010 Report’s recommendations for clearer standards, uniform formats, and increased transparency and accountability in the AI process, with HUD review of AI submissions, “reinforced” the agency’s own analysis of the deficiencies in the AI process. Proposed AFFH Rule, 78 Fed. Reg. at 43,713. In drafting the new rules to overhaul the AI process, HUD sought specifically to “respond[ ] to the GAO’s observations,” id. at 43,711, as described below.
4. HUD’s Regulation of Grantees through the AFFH Rule By 2013, HUD had determined that the then-existing requirements for program participants to carry out their obligations to affirmatively further fair housing needed to be “refine[d],” and, thus, HUD sought to provide “a fair housing assessment and planning process” to “better aid” participants in “fulfill[ing] this statutory obligation.” Id. at 43,710. HUD’s analysis stemmed “from substantial interaction with program participants and advocates” over “several years,” as well as from the GAO 2010 Report. Id. at 43,713. On July 19, 2013, HUD issued a Proposed Rule to “provide direction, guidance, and procedures for program participants to promote fair housing choice.” Id. at 43,711. Addressing the concern raised by the GAO about the lack of accountability, attributable both to the 1996 Fair Housing Planning Guide’s focus on “extensive suggestions” without “fully articulat[ing] the goals that AFFH must advance,” and to the lack of any requirement for AIs to be “submitted to HUD for review,” the proposed rule “improve[d] fair housing planning by more directly linking it to housing and community
12

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 13 of 77
development planning processes currently undertaken by program participants as a condition of their receipt of HUD funds.” Id. at 43,713. On July 16, 2015, the AFFH Rule was finalized. See generally AFFH Rule.
The AFFH Rule makes significant changes to HUD’s regulations in order to remedy the noted deficiencies in the AI process, including by adding: (1) new clarifying definitions, see 24 C.F.R. § 5.152; (2) new regulations for submitting an Assessment of Fair Housing (“AFH”), see generally id. pt. 5, (3) new requirements for community participation, consultation, and coordination, applicable to both AFHs and Consolidated Plans, see id. §§ 5.158(a), 91.100(a)(1), 91.105(a); (4) new recordkeeping requirements, see id. § 5.168; and (5) requirements to ensure that the regulations governing Consolidated Plans also apply to the AFH development process, see id. pt. 91. These changes are explained in turn below.
First, the AFFH Rule adds a definition of “affirmatively furthering fair housing,” 80 Fed. Reg. at 42,353, to mean “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” 24 C.F.R. § 5.152. The Rule also defines other key terms, adding a “definition of ‘data’ to collectively refer to ‘HUD-provided data’ and ‘local data,’ both of which terms are also defined,” AFFH Rule, 80 Fed. Reg. at 42,277, and “[r]evis[ing] the definition of ‘integration’” and “segregation” to “provide greater clarity as to the meaning” of these terms, id.
13

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 14 of 77
HUD elected not to revise certain terms and instead opted to strengthen various provisions of the Rule. For example, in response to comments that HUD should “[s]trengthen the definition of ‘community participation’” in the proposed rule, id. at 42,303, HUD responded that “[t]he additional detail that commenters are seeking about community participation can be found in [24 C.F.R.] § 5.158, entitled ‘Community participation, consultation, and coordination,’” id., which is discussed in more detail below.
Second, the AFFH Rule adds a new part to the Code of Federal Regulations addressing “Affirmatively Furthering Fair Housing,” see id. at 42,352; 24 C.F.R. pt. 5, that requires jurisdictions to conduct an AFH “for the purpose of examining its programs, jurisdiction, and region, and identifying goals to affirmatively further fair housing and to inform fair housing strategies” in their Consolidated Plans. 24 C.F.R. § 5.154(d). Program participants must submit their first AFHs 270 days prior to their first scheduled Consolidated Plan after a certain date, which date is staggered depending on the type of participant. See id. §§ 5.160(a)(1)(i), 5.151. Given this timing, “the AFFH Rule contemplates that many program participants will not be required to submit an AFH until years after the July 2015 promulgation of the Rule,” Defs.’ Opp’n PI at 9, but the rule nonetheless “makes clear that program participants are still required to comply with their longstanding AFFH obligations regardless when the AFH submission requirement is triggered,” id. Program participants are therefore required to “continue to conduct an [AI] . . . in accordance with requirements in effect prior to August 17, 2015,” until their AFH submission requirement is triggered. 24 C.F.R. § 5.151.
The AFFH Rule lays out in detail the required contents of an AFH. Using HUD-provided data and HUD-created “Assessment Tools,” the AFH must include “an analysis of fair housing data, an assessment of fair housing issues and contributing factors, and an identification of fair
14

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 15 of 77
housing priorities and goals.” Id. § 5.152. A program participant’s AFH must “address integration and segregation; racially or ethnically concentrated areas of poverty; disparities in access to opportunity; and disproportionate housing needs based on race, color, religion, sex, familial status, national origin, and disability,” and “assess the jurisdiction’s fair housing enforcement and fair housing outreach capacity,” id. §5.154(d), and must identify various “contributing factors” that impede furthering fair housing, id. § 5.154(d)(3)–(4). In addition, the AFH must recommend “[s]trategies and actions” to “affirmatively further fair housing”; must “include a concise summary of the community participation process, public comments, and efforts made to broaden community participation in the development of the AFH”; must “provide a summary of progress achieved in meeting the goals and associated metrics and milestones of the prior AFH”; and must “identify any barriers that impeded or prevented achievement of goals.” Id. § 5.154(d)(5)–(7). In creating an AFH, the program participant must “consult with other public and private agencies that provide assisted housing, health services, and social services,” id. § 91.100(a)(1), at “various points in the fair housing planning process,” including, “at a minimum,” during “the development of both the AFH and the consolidated plan,” id. § 91.100(e)(3); see also id. § 5.158(a).
As a third change, the AFFH Rule imposes new requirements for community participation, consultation, and coordination applicable to the development of both AFHs and Consolidated Plans. For example, to “ensure that the AFH, the consolidated plan, and the PHA Plan and any plan incorporated therein are informed by meaningful community participation, program participants should employ communications means designed to reach the broadest audience.” Id. § 5.158(a). These communications can be met by “publishing a summary of each document in one or more newspapers of general circulation, and by making copies of each
15

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 16 of 77
document available on the Internet,” among other locations. Id. In addition, Consolidated Plan program participants must follow the existing requirements of part 91, which requires consultation with various agencies and organizations as well as the creation of a “citizen participation plan” in the preparation of a Consolidated Plan, in preparing their AFHs. See id. § 91.105. The AFFH Rule reiterates that “[p]rogram participants must certify that they will affirmatively further fair housing” in accordance with preexisting certification requirements laid out in 24 C.F.R. part 91 (for Consolidated Plan program participants) and part 903 (for PHA Plan program participants). Id. § 5.166(a). Notably, the AFFH Rule also enhances the certification requirements in part 91, requiring that program participants now certify that they “will take no action that is materially inconsistent with [their] obligation to affirmatively further fair housing,” id. § 91.225(a)(1); see also AFFH Rule, 80 Fed. Reg. at 42,301–02, which certification is also enhanced by the new clarifying definition of AFFH requirement.
Once completed, HUD reviews each AFH “to determine whether the program participant has met the requirements for providing its analysis, assessment, and goal setting, as set forth in § 5.154(d).” 24 C.F.R. § 5.162(a)(1). HUD will not accept an AFH if it finds that “the AFH or a portion of the AFH is inconsistent with fair housing or civil rights requirements or is substantially incomplete,” id. § 5.162(b)(1), or that the AFH was “developed without the required community participation or the required consultation,” id. § 5.162(b)(1)(ii)(A). The AFFH Rule sets up an iterative process if an AFH is rejected, in which HUD must provide notice of the reasons for nonacceptance and as well as an opportunity for the program participant to address those reasons. Id. § 5.162(a)(1), (c). The AFFH Rule also links the required AFH to the Consolidated Plans that housing block grant recipients are required to submit every three to five years. See id. §§ 5.1560(d), 570.302. Recipients are required to have an accepted AFH before
16

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 17 of 77
HUD will approve their Consolidated Plans. See id. § 5.162(d). Failure to timely submit a compliant AFH might therefore result in a delay in HUD’s approval of the recipient’s Consolidated Plan, which, in turn, might “automatically result in the loss of the [block grant] funds to which the jurisdiction would otherwise be entitled.” Id. § 5.162(d)(1).
Fourth, the AFFH Rule imposes new recordkeeping provisions, requiring “[e]ach program participant” to “establish and maintain sufficient records to enable HUD to determine whether the program participant has met the requirements” of the Rule. Id. § 5.168(a). These records include, inter alia, records “relating to the program participant’s AFH and any significant revisions to the AFH,” “demonstrating compliance with the consultation and community participation requirements” and “the actions the program participant has taken to affirmatively further fair housing,” “relating to the program participant’s efforts to ensure that housing and community development activities . . . are in compliance with applicable nondiscrimination and equal opportunity requirements,” and “[a]ny other evidence relied upon by the program participant to support its affirmatively furthering fair housing certification.” Id. § 5.168(a)(1)–(3), (5), (7). These new recordkeeping requirements help remedy concerns that had been expressed before promulgation of the Rule regarding the lack of records maintained by some program participants.
Finally, the AFFH Rule revises many of the provisions in parts 91, 903, and others, to ensure that the regulations governing the development process apply in virtually the same way to both the Consolidated Plan process and the AFH process. See, e.g., id. §§ 91.105 (citizen participation plans), 91.205 (housing and homeless needs assessment), 91.215 (strategic plan), 91.220 (action plan), 91.225 (certifications).
17

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 18 of 77

5. HUD’s Promulgation of Assessment Tools Of particular salience here is the AFFH Rule’s requirement that program participants use HUD-created “Assessment Tools” to complete their AFHs. See AFFH Rule, 80 Fed. Reg. at 42,272. The term “Assessment Tool” “refers collectively to any forms or templates,” and accompanying instructions, provided by HUD that “program participants must use to conduct and submit an AFH pursuant to § 5.154.” 24 C.F.R. § 5.152. HUD issues “different Assessment Tools for different types of program participants,” and the availability of Assessment Tools is “published in the Federal Register.” AFFH Rule, 80 Fed. Reg. at 42,277. Participants are required to use Assessment Tools in creating their AFHs, so if HUD has not yet issued a finalized Assessment Tool for the relevant category of participants, the participant’s deadline for submitting a compliant AFH is extended to a date not less than “9 months from the date of publication” of the appropriate Assessment Tool. 24 C.F.R. § 5.160(a)(1)(ii). The Assessment Tools themselves are not included in the AFFH Rule, however, and are separately issued by HUD, “subject to periodic notice and opportunity to comment,” to maintain approval by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act. Id. § 5.152. HUD’s first (and only fully implemented) Assessment Tool, the Local Government Assessment Tool (“LG2015”), was published in December 2015, see generally LG2015 Tool Announcement, 80 Fed. Reg. 81,840, which triggered the requirement for local government program participants to submit AFHs, id. In January 2017, after two rounds of notice and comment, and with approval from the OMB, HUD issued a new iteration of this tool, called LG2017. See generally LG2017 Tool Announcement, 82 Fed. Reg. 4,388; Defs.’ Opp’n PI, Ex. 1, Decl. of Krista Mills (“HUD Decl.”) ¶ 35, ECF No. 33-1.6 As of the initiation of this lawsuit,

6

At the same time, HUD also published an Assessment Tool for PHAs, see generally HUD Notice,

Affirmatively Furthering Fair Housing Assessment Tool for Public Housing Agencies: Announcement of Final

18

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 19 of 77
local government agencies were the only type of program participants for which AFHs were required. See Defs.’ Opp’n PI at 11.
6. HUD’s 2018 Notices This lawsuit was initially prompted by HUD’s notice, on January 5, 2018, extending the deadline for local governments to submit their AFHs “until their next AFH submission deadline that falls after October 31, 2020.” HUD Notice, Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants (“AFH Extension Notice”), 83 Fed. Reg. 683, 684 (Jan. 5, 2018). HUD explained that, based on review of the first 49 local government AFH submissions, “local government program participants need additional time and technical assistance from HUD to adjust to the new AFFH process and complete acceptable AFH submissions.” Id. at 685. The notice of the extension also “invite[d] public comment for a period of 60-days on the extension,” which comments would be considered in HUD’s “ongoing process of reviewing the Assessment of Fair Housing Tool for Local Governments.” Id. Five months later, on May 23, 2018, HUD published three additional notices in the Federal Register regarding AFH deadlines and the LG2017 Tool, two of which are challenged in this lawsuit. First, HUD announced the immediate withdrawal of the January 5, 2018, notice extending AFH deadlines until October 2020. See generally HUD Notice, Affirmatively Furthering Fair Housing: Withdrawal of Notice Extending the Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants (“Extension Withdrawal Notice”), 83 Fed. Reg. 23,928, 23,928 (May 23, 2018). This announcement stated that, “[i]f HUD later finds it prudent to revise the regulations, including by revising the submission
Approved Document, 82 Fed. Reg. 4,373 (Jan. 13, 2017), but this Tool did not trigger the AFH requirement for PHAs because HUD “ha[d] not yet provided PHAs with the data they will need,” id. at 4,373.
19

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 20 of 77
schedule, HUD will publish a notice of proposed rulemaking to that effect for public comment.” Id.
The remaining two notices published that same day, May 23, 2018, are at issue in this lawsuit. As noted, HUD withdrew the LG2017 Tool, the second iteration of the Local Government Assessment Tool, because “HUD has become aware of significant deficiencies in the Tool impeding completion of meaningful assessments by program participants,” such that the Tool “is inadequate to accomplish its purpose of guiding program participants to produce meaningful AFHs.” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,922. As support, HUD provided that “[t]aken together, 63% of the 49 AFHs submitted were either: (a) Returned as unacceptable and have not been successfully resubmitted, or (b) accepted only after the program participant supplied necessary additional information and revisions.” Id. at 23,924. In HUD’s view, because only 37 percent of the initial 49 submissions had been deemed acceptable, “the Tool was unduly burdensome and not working as an effective device to assist program participants with the creation of acceptable and meaningful AFHs with impactful fair housing goals.” Id. at 23,923. Given the “significant problems” with the LG2017 Tool, HUD had “provided substantial technical assistance to this initial round of program participants, even for the AFHs that have been accepted”—but the agency “does not have the resources to continue to provide program participants with the level of technical assistance that they would need to submit acceptable AFHs using the current version of the Local Government Assessment Tool.” Id. at 23,925. HUD stated that it would “review the Assessment Tool and its function under the AFFH regulations to make it less burdensome and more helpful in creating impactful fair housing goals,” id. at 23,922, and “solicit[ed] comments and suggestions geared to creating a less
20

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 21 of 77

burdensome and more helpful AFH Tool for local governments,” which comments were due by July 23, 2018. Id.7
Finally, in the third notice published on the same day, HUD explained that, in light of the withdrawal of the LG2017 Tool, “currently no type of program participant has an Assessment Tool available for use,” and that program participants must therefore rely on use of the AI. AI Reliance Notice, 83 Fed. Reg. at 23,927. HUD stressed that Consolidated Plan program participants “must nonetheless continue to comply with existing, ongoing legal obligations to affirmatively further fair housing” by “conduct[ing] an analysis of impediments (AI) to fair housing choice within the jurisdiction, tak[ing] appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain[ing] records reflecting the analysis and actions.” Id. The latter two directions—regarding taking “appropriate actions” and recordkeeping—effectively remind program participants about the continuing effective parts of the AFFH Rule, including those set out in 24 C.F.R § 5.152 (defining “[a]ffirmatively furthering fair housing”), § 5.168 (recordkeeping requirements, applicable, inter alia, to “each consolidated plan program participant”); § 570.490 (recordkeeping requirements for States); § 574.530 (recordkeeping requirements for HOPWA grantees); and § 576.500 (recordkeeping requirements for ESG Program). To assist, “[t]he data HUD ha[d] developed in order to implement the AFFH rule w[ould] remain available for program participants to use in conducting their AIs.” AI Reliance Notice, 83 Fed. Reg. at 23,927.

7

Although HUD has solicited comments regarding the development of a new Assessment Tool, HUD stated

at the motions hearing that the agency does not yet have a timeline for developing such a Tool. Mot. Hr’g at 71:16–

20 (stating that “analysis has been done” and HUD is “proceeding from there,” but HUD’s counsel did not “think

there is a specific schedule” for “taking the next step on action with revising LG 2017”). HUD has also issued an

Advance Notice of Proposed Rulemaking (“ANPR”) to “invit[e] public comment on amendments to HUD’s [AFFH]

regulations” generally. See HUD ANPR, Affirmatively Furthering Fair Housing: Streamlining and Enhancements

(“HUD ANPR”), 83 Fed. Reg. 40,713, 40,713 (Aug. 16, 2018); see also Pls.’ Not. Post-Hearing Development, Ex.

1, HUD ANPR, 83 Fed. Reg. at 40,713, ECF No. 45-1.

21

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 22 of 77
HUD also informed participants that “if HUD believes the AI or actions taken to affirmatively further fair housing” are “inadequate,” then “HUD may require submission of the full AI and other documentation.” Id. HUD can also “question the jurisdiction’s AFFH certification by providing notice to the jurisdiction that HUD believes the AFFH certification to be inaccurate and provide the jurisdiction an opportunity to comment.” Id. at 23,928.
Despite withdrawal of the LG2017 Tool, many components of the AFFH Rule remain in effect. For example, the community participation, consultation, and coordination requirements stated in § 5.158 remain active insofar as they require participants to “ensure that the AFH, the consolidated plan, and the PHA Plan and any plan incorporated therein are informed by meaningful community participation.” 24 C.F.R. § 5.158 (emphasis added). Thus, program participants submitting Consolidated Plans must still “employ communications means designed to reach the broadest audience” by, “as appropriate,” “publishing a summary of each document in one or more newspapers of general circulation” and “making copies of each document available on the Internet, on the program participant’s official government Web site, and as well at libraries, government offices, and public places.” Id. Similarly, program participants must continue to “certify that they will affirmatively further fair housing when required by statutes and regulations governing HUD programs,” id. § 5.166, including by complying with the revised enhanced certification requirement, in § 91.225(a)(1), that participants certify that they “will take no action that is materially inconsistent with [their] obligation to affirmatively further fair housing,” id. § 91.225(a)(1), consistent with the new definition. Participants must also continue to satisfy the new recordkeeping requirements by “establish[ing] and maintain[ing] sufficient records to enable HUD to determine whether the program participant has met the requirements of this subpart,” id. § 5.168(a), and must “make these records available for HUD inspection,” id.
22

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 23 of 77
HUD confirmed at the motions hearing what is plain from the AFFH Rule: the new definitions in the AFFH Rule apply to Consolidation Plans, Mot. Hr’g at 61:15–18 (responding to Court query whether “these new definitions [ ] remain active and, certainly, apply to consolidation plans,” HUD counsel stated “Yes”), and to the AI process under the 1996 Fair Housing Planning Guide, id. at 62:3–25 (responding to Court query whether “that guidance document use[s] any of the [ ] terms that are newly defined in the rule,” HUD counsel stated: “So you’re asking whether the definitions in that—the rule would now be incorporated . . . . Yeah. . . . And so, now, we have a definition that—you know, through duly promulgated rule that would apply by law.”). Thus, HUD acknowledges that the revived AI process is not the same process operating prior to the AFFH Rule, due, at a minimum, to both the new definitions in the Rule that provide more clarity about the AFFH statutory requirement, and the provision of HUDprovided data to encourage more “evidence-based decision making.” Id. at 64:17–21; see also id. at 63:18–21 (responding to Court’s query whether “[t]his AI process that we have reverted to is not the same process that it was pre-2015 AFFH rule, right?” HUD counsel stated “That’s right, Your Honor”); id. at 64:8–11 (responding to Court’s query whether “[t]here is much more clarity [in the AI process] because of those definitions as to what HUD expects. Is that right?” HUD counsel stated “Absolutely, Your Honor”).
In short, even without an Assessment Tool in place, program participants, including local government agencies, remain bound by key definitional, recordkeeping, and enhanced certification components of the AFFH Rule, and, importantly, to complying with the AFFH statutory requirement. See id. at 69:7–15 (HUD counsel stating, “the standard for both satisfying your obligations under an AI and an AFH is affirmatively furthering fair housing,” and that “the AFH process is sort of a more targeted way of going through that . . . a little bit more resource
23

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 24 of 77
intensive, . . . [b]ut the standard that the jurisdictions are subject to either way is affirmatively furthering fair housing”).
B. The Instant Litigation 1. The Plaintiffs
The plaintiffs in this case are three non-profit organizations who work to further fair housing across the country. The National Fair Housing Alliance (“NFHA”) is a “national, nonprofit, public service organization,” incorporated in Virginia, which serves as a “nationwide alliance of private, nonprofit, fair housing organizations, including organizations in 28 states.” Am. Compl. ¶ 16. NFHA’s “mission is to promote residential integration and combat discrimination in housing based on race, national origin, disability, and other protected classes covered by federal, state, and local fair housing laws.” Id. Texas Low Income Housing Information Service, Inc. (“Texas Housers”), is a Texas-based non-profit corporation and “the principal statewide advocacy group focused on expanding housing opportunities for low-income residents of Texas.” Id. ¶¶ 3, 17. Texas Appleseed is similarly a Texas-based non-profit organization that aims “to promote social and economic justice for all Texans, including by ensuring that all Texas families can recover in the wake of natural disasters; that communities are rebuilt to be more resilient; and that all families have the opportunity to live in safe, decent neighborhoods with equal access to educational and economic opportunity.” Id. ¶ 18.
All three plaintiffs allege that they have “devoted considerable resources” to the development and implementation of the AFFH Rule. Id. ¶¶ 119, 143. NFHA “was one of the leading advocates pushing for the creation of the AFFH Rule to replace” the AI process, id. ¶ 142, and “[o]nce HUD issued the final AFFH Rule, NFHA and its members worked in local communities across the country to generate effective community participation and substantive provisions in AFHs that would make meaningful differences to communities, id. ¶ 144. NFHA
24

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 25 of 77
members “actively participated in the AFH planning process in many jurisdictions, with NFHA providing resources, guidance, and strategic help.” Id. Likewise, “[s]ince the AFFH Rule’s promulgation,” Texas Housers and Texas Appleseed (the “Texas Plaintiffs”) have also “devoted resources to the development of effective AFHs in a number of” jurisdictions within Texas, including the municipalities of Fort Worth, Corpus Christi, and League City, as well as the Hidalgo County region, which covers nineteen jurisdictions and housing authorities. Id. ¶ 121.
According to the Amended Complaint, in response to the withdrawal of the LG2017 Tool in May 2018, the Texas Plaintiffs “have had to divert resources they were planning to devote to other activities critical to their missions to remedying the effects of” HUD’s actions. Id. ¶ 118. Similarly, the NFHA “has had to divert resources to assisting its members around the country in similar efforts to combat the effects” of HUD’s actions. Id. The plaintiffs claim that “HUD’s unlawful suspension of the AFH process has greatly undermined” their “ability to accomplish their missions and is making them divert resources to activities they would not otherwise have engaged in, just to get to an inferior result.” Id. ¶ 132; see also id. ¶ 152 (“In the absence of HUD oversight, NFHA is preparing to devote substantial resources to outreach, public education, and advocacy to assist its members and community groups working to ensure that jurisdictions formulate AIs that are [as] robust as possible.”).
In addition, the State of New York seeks to intervene, either as a matter of right or permissively, as a plaintiff in this action. NYS’s Mem. Supp. Mot. Intervene (“NYS’s Mem.”) at 1, ECF No. 24-1. New York asserts that its interests “are directly and adversely affected by HUD’s withdrawal of the Assessment Tool, reinstatement of the ‘Analysis of Impediments’ process, and concomitant suspension of compliance with the AFFH Rule” because “HUD’s actions will make it more difficult for New York’s local jurisdictions to analyze barriers to fair
25

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 26 of 77
housing choices or identify meaningful actions to address these barriers.” Id. at 4. HUD’s actions allegedly will “deprive New York’s local jurisdictions of the support that HUD had previously determined was necessary to effectively identify and address obstacles to fair housing.” Id. at 5. New York also argues that HUD’s actions “directly injure the State’s parens patriae interests” by “delay[ing]” fair-housing reforms, “thus subjecting New York’s residents to ongoing segregation and discrimination.” Id. at 7.
2. The Plaintiffs’ Challenge to HUD’s Notices On May 8, 2018, the plaintiffs filed a complaint against HUD challenging the January 5, 2018, notice extending the AFH deadline to October 31, 2020, which the plaintiffs alleged was a “suspension of the AFFH Rule’s requirements,” in violation of the APA. Compl. ¶ 3, ECF No. 1. Ten days later, on May 18, 2018, HUD notified this Court that the January 5, 2018, notice had been withdrawn and that “two related notices” had been posted regarding the LG2017 Tool. Not. ¶¶ 1–2, ECF No. 15. HUD promised to confer with the plaintiffs “to determine what, if any, additional proceedings” would be “necessary in this matter.” Id. at 2. The plaintiffs subsequently filed, on May 29, 2018, an Amended Complaint and a Renewed Motion for a Preliminary Injunction and for Expedited Summary Judgment. See generally Am. Compl.; Pls.’ Mot. PI. During briefing on this motion, the State of New York moved, on June 5, 2018, to intervene on behalf of the plaintiffs. See generally NYS’s Mot. Intervene. The defendants then moved to dismiss this matter due to a lack of standing, under Federal Rule of Civil Procedure 12(b)(1). See generally Defs.’ MTD. After all briefing was complete on July 30, 2018, this Court held a hearing on the three motions on August 9, 2018. See Minute Entry (dated Aug. 9, 2018).
26

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 27 of 77
II. LEGAL STANDARD A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction In evaluating a motion to dismiss for lack of subject-matter jurisdiction, under Federal
Rule of Civil Procedure 12(b)(1), federal courts must be mindful that they “are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (internal quotation marks omitted) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, “have an affirmative obligation to consider whether the constitutional and statutory authority exist for us to hear each dispute.” James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (internal quotation marks omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject-matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); FED. R. CIV. P. 12(h)(3).
Article III of the Constitution restricts the power of federal courts to hear only “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1; see also Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (“Article III of the Constitution limits the jurisdiction of federal courts to ‘actual cases or controversies between proper litigants.’” (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996) (en banc))). “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Absent standing by the plaintiff, the court lacks subject-matter jurisdiction to hear the claim and dismissal is mandatory. See FED. R. CIV. P. 12(h)(3).
27

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 28 of 77
Where the plaintiff’s standing is challenged, the court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). In such cases, the plaintiff bears the burden of “show[ing] a substantial probability that [he or she has] been injured, that the defendant caused [his or her] injury, and that the court could redress that injury.” Carbon Sequestration Council v. EPA, 787 F.3d 1129, 1133 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002)); see also Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). “Each element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (alterations omitted) (quoting Lujan, 504 U.S. at 561). Thus, where the plaintiff’s standing is challenged under Rule 12(b)(1), the court must “accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff’s favor.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Mendoza, 754 F.3d at 1010. In addition, to assure itself of its jurisdiction over a claim, “the district court may consider materials outside the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya’Alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction).
B. Preliminary Injunction for Relief under the APA The APA authorizes any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action,” to seek “judicial review thereof.” 5 U.S.C. § 702. Actions subject to review include “final agency action for which there is no other adequate remedy in a court.” Id. § 704. A “reviewing court shall decide all relevant questions of
28

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 29 of 77
law . . . and determine the meaning or applicability of the terms of an agency action.” Id. § 706. An agency’s “interpretation of its own regulations ‘controls unless plainly erroneous or inconsistent with the regulation.’” Press Commc’ns LLC v. FCC, 875 F.3d 1117, 1121 (D.C. Cir. 2017) (alterations omitted) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)); accord Safari Club Int’l v. Zinke, 878 F.3d 316, 326 (D.C. Cir. 2017) (same). The “court shall [ ] compel agency action unlawfully withheld or unreasonably delayed; and [ ] hold unlawful and set aside agency action, findings, and conclusions found to be,” inter alia, “arbitrary, capricious, . . . or otherwise not in accordance with law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(1)–(2)(A), (D).
“Agency action is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency.’” Mayo v. Reynolds, 875 F.3d 11, 19 (D.C. Cir. 2017) (alteration omitted) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 43 (1983)); see also Safari Club Int’l, 878 F.3d at 325 (noting that “[a] disputed action also may be set aside as arbitrary and capricious if the agency has acted ‘without observance of procedure required by law’” (citing 5 U.S.C. § 706(2)(D))). A court engaged in arbitrary and capricious review “must ‘not substitute its own judgment for that of the agency,’” and “ordinarily uphold[s] an agency’s decision so long as the agency ‘examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.’” Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir. 2017) (alterations omitted) (quoting State Farm, 463 U.S. at 43).
29

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 30 of 77

“A party seeking a preliminary injunction must make a ‘clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.’” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). Whether a plaintiff must show each of the four factors independently, or else may make a sufficiently “strong showing on one factor [to] make up for a weaker showing on another,” remains an open question in the D.C. Circuit. Id. at 7 (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)).8
When a plaintiff moves for a preliminary injunction, the plaintiff’s claims are typically evaluated “under the heightened standard for evaluating a motion for summary judgment.” Food & Water Watch, Inc. v. Vilsack (“FWW”), 808 F.3d 905, 912 (D.C. Cir. 2015). In cases where a moving party has filed only its complaint “and moved for a preliminary injunction contemporaneously,” any challenge to standing must be “evaluated under the motion to dismiss standard,” pursuant to Federal Rule of Civil Procedure 12(b)(1), because “the litigation ha[s] not proceeded past the pleadings stage.” Id. at 913.

8

The Supreme Court, in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), referred to

the four factors conjunctively, indicating that a plaintiff seeking a preliminary injunction “must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (emphasis added).

Winter pointedly rejected the contention that “when a plaintiff demonstrates a strong likelihood of prevailing on the

merits, a preliminary injunction may be entered based only on a ‘possibility’ of irreparable harm,” holding that

“plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an

injunction.” Id. at 21–22 (emphasis in original). The D.C. Circuit repeatedly has observed that “the so-called

‘sliding-scale’ approach to weighing the four preliminary injunction factors” may no longer be viable post-Winter,

but the Circuit has not expressly resolved this question. League of Women Voters, 838 F.3d at 7; see also Pursuing

Am.’s Greatness, 831 F.3d at 505 n.1 (“We need not resolve here any tension in the case law regarding the showing

required on the merits for a preliminary injunction.”); Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (“[I]t

remains an open question whether the ‘likelihood of success’ factor is ‘an independent, free-standing requirement,’

or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a

‘serious legal question’ on the merits. . . . But we have no need to resolve this question here because the remaining

factors do not, in any event, weigh in petitioners’ favor.”); Sherley, 644 F.3d at 392–93 (“[W]e read Winter at least

to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary

injunction.” (internal quotation marks omitted)).

30

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 31 of 77
III. DISCUSSION The plaintiffs’ standing to sue is discussed first, since that is “a threshold, jurisdictional
concept.” Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 194 n.4 (D.C. Cir. 2013). HUD challenges the plaintiffs’ standing in opposing the plaintiffs’ motion for a preliminary injunction, see Defs.’ Opp’n PI at 15–22, and presses this issue in seeking dismissal of the amended complaint, see generally Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’ Mem. MTD”), ECF No. 38-1. As explained below, the plaintiffs have fallen short of adequately alleging organizational standing under Article III.9 For the same reason, New York’s Motion to Intervene is denied for lack of Article III standing. Moreover, even if the plaintiffs had met the threshold hurdle of organizational standing, they would not be entitled to the requested preliminary injunctive relief.
A. The Plaintiffs Do Not Have Standing to Sue For standing, the plaintiffs must establish three elements: (1) an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,” Lujan, 504 U.S. at 560 (citations and internal quotation marks omitted); (2) “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged conduct of the defendant, id.; and (3) that a favorable decision must likely redress the injury, id. at 561; see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Where multiple plaintiffs have brought suit, “to proceed to the merits of [the plaintiffs’] claims,” a court “need only find one party with

9

The D.C. Circuit’s “organizational-standing doctrine and the unwarranted disparity it seems to have

spawned between individuals’ and organizations’ ability to bring suit” has been the focus of pointed concern. FWW,

808 F.3d at 926 (Millett, J., concurring) (“Because the majority opinion properly applies our precedent to keep a bad

jurisprudential situation from getting worse, I concur. But I continue to believe that our organizational standing

doctrine should be revisited in an appropriate case.”).

31

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 32 of 77
standing.” Ams. for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013) (citing Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 310 (D.C. Cir. 2001)). Following a brief summary of the law in this Circuit governing organizational standing, the sufficiency of the plaintiffs’ showing on each of the three requisite standing elements is addressed.
1. Overview of Organizational Standing An organization “can assert standing on its own behalf, on behalf of its members or both.” Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, the plaintiffs rely exclusively on the theory of “organizational standing”—i.e., that they have established standing “in [their] own right.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). For organizational standing, each plaintiff is required, “like an individual plaintiff, to show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.’” Equal Rights Ctr., 633 F.3d at 1138 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). Havens, on which the plaintiffs heavily rely, see Pls.’ Opp’n Defs.’ Mot. Dismiss (“Pls.’ Opp’n MTD”) at 1, ECF No. 40, is particularly instructive as a seminal Supreme Court case on organizational standing as well as a case involving enforcement of rights under the FHA between private parties. There, the Supreme Court considered whether a plaintiff nonprofit organization “whose purpose was to make equal opportunity in housing a reality in the Richmond Metropolitan Area” and whose “activities included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination,” Havens, 455 U.S. at 368 (internal quotation marks and citation omitted), had standing to sue, as an organization “in its own right,” a real estate corporation “alleged to have engaged in ‘racial steering’ violative of” the FHA. Id. at 367, 378. The defendant real estate company had, inter
32

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 33 of 77
alia, incorrectly advised black “testers” that apartments were not available in certain apartment complexes. Id. at 374.10 The Supreme Court determined that, at the pleading stage, the nonprofit organization had sufficiently alleged “suffer[ing] injury in fact” for standing, based on alleged facts that the real estate company’s “steering practices ha[d] perceptibly impaired [the nonprofit’s] ability to provide counseling and referral services for low-and moderate-income homeseekers,” and that “[s]uch concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitute[d] far more than simply a setback to the organization’s abstract social interests.” Id. at 379; see also Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity (“EPIC”), 878 F.3d 371, 378 (D.C. Cir. 2017) (explaining that under Havens, “an organization may establish Article III standing if it can show that the defendant’s actions cause ‘a concrete and demonstrable injury to the organization’s activities’ that is ‘more than simply a setback to the organization’s abstract social interests’” (quoting Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc. (“Feld”), 659 F.3d 13, 25 (D.C. Cir. 2011) (quoting Havens, 455 U.S. at 379))).11
The D.C. Circuit has “establishe[d] two important limitations on the scope of standing under Havens,” EPIC, 878 F.3d at 378 (quoting Feld, 659 F.3d at 25 (citing Havens, 455 U.S. at 379)), with a two-prong inquiry. In determining when an organizational plaintiff has alleged facts sufficient to demonstrate the first element of Article III standing—injury in fact—the D.C.

10

“‘[T]esters’ are individuals who, without an intent to rent or purchase a home or apartment, pose as renters

or purchasers for the purpose of collecting evidence of unlawful steering practices.” Havens, 455 U.S. at 373.

11

The Havens Court expressed some skepticism about the individual plaintiffs, “irrespective of their status as

testers,” claiming standing based on their residency in the area and the alleged “indirect” injury of being “deprived

of the benefits that result from living in an integrated community,” due to the defendant’s “steering of persons other

than the plaintiff.” 455 U.S. at 375. Noting that “[t]his concept of ‘neighborhood’ standing differs from that of

‘tester’ standing,” for which the injury “is a direct one,” the Court pointed out that “[t]he distinction is between

‘third-party’ and ‘first-party’ standing.” Id. For this standing claim for “indirect injury,” the Court directed the

district court to “afford the plaintiffs an opportunity to make more definite the allegations of the complaint,” or “the

claims should be dismissed.” Id. at 378.

33

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 34 of 77
Circuit requires “[f]irst [that] the plaintiff must show that the defendant’s ‘action or omission to act injured the organization’s interest.’” Id. (quoting People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric. (“PETA”), 797 F.3d 1087, 1094 (D.C. Cir. 2015)). This initial inquiry addresses the requirement in Havens that an organizational plaintiff show its services have been “perceptibly impaired,” constituting “far more than simply a setback to the organization’s abstract social interests.” 455 U.S. at 379. The D.C. Circuit has elaborated that an organization’s services have been “perceptibly impaired,” for the purposes of organizational standing, when the plaintiff demonstrates that “a direct conflict” exists “between the defendant’s conduct and the organization’s mission,” Nat’l Treasury Emps. Union v. United States (“NTEU”), 101 F.3d 1423, 1430 (D.C. Cir. 1996) (emphasis in original); see also Elec. Privacy Info. Ctr. v. FAA, 892 F.3d 1249, 1255 (D.C. Cir. 2018); League of Women Voters, 838 F.3d at 8; PETA, 797 F.3d at 1095; Abigail All. for Better Access to Developmental Drugs v. Eschenbach (“Abigail All.”), 469 F.3d 129, 133 (D.C. Cir. 2006), and when “the defendant’s conduct causes an ‘inhibition of [the organization’s] daily operations,’” FWW, 808 F.3d at 919 (quoting PETA, 797 F.3d at 1094); see also Action All. of Senior Citizens of Greater Phila. v. Heckler (“Action All.”), 789 F.2d 931, 938 (D.C. Cir. 1986). In other words, the defendant’s action must be “at loggerheads” with the plaintiffs’ mission-driven activities. NTEU, 101 F.3d at 1429 (internal quotation marks omitted). This “requirement exists because, ‘[i]f the challenged conduct affects an organization’s activities, but is neutral with respect to its substantive mission,’ then it is ‘“entirely speculative” whether the challenged practice will actually impair the organization’s activities.’” PETA, 797 F.3d at 1095 (quoting Feld, 659 F.3d at 25, 27 (quoting NTEU, 101 F.3d at 1430)).
34

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 35 of 77
The second prong of Havens standing requires a plaintiff to “show that it ‘used its resources to counteract [the] harm’” caused by “the defendant’s ‘action or omission to act.’” EPIC, 878 F.3d at 378 (quoting PETA, 797 F.3d at 1094). The plaintiff must demonstrate that it has expended “‘operational costs beyond those normally expended’ to carry out its advocacy mission.” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995)). When a plaintiff alleges “any chain of allegations for standing purposes” under the Havens factors, a court “may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties).” FWW, 808 F.3d 905 at 913 (quoting Arpaio, 797 F.3d at 21 (quoting United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989))).
The D.C. Circuit has “elaborated as to when an organization’s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction.” PETA, 797 F.3d at 1093 (emphasis in original). For instance, “an organization’s diversion of resources to litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for purposes of standing.” Id. (quoting Feld, 659 F.3d 13 at 25); see also Nat’l Taxpayers Union, 68 F.3d at 1434 (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.” (quoting Spann, 899 F.2d at 27)). Nor is standing available “when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” PETA, 797 F.3d at 1093 (quoting Ams. for Safe Access, 706 F.3d at 457), or, relatedly, when the “‘service’ impaired is pure issue-advocacy,” id. at 1093–94 (quoting Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005)); Turlock Irr. Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (finding organization “does not allege impairment of its ability to provide services” when it
35

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 36 of 77
alleges “only impairment of its advocacy”). Making these distinctions can get murky, however, prompting the D.C. Circuit to acknowledge that “many of our cases finding Havens standing involved activities that could just as easily be characterized as advocacy—and, indeed, sometimes are.” Feld, 659 F.3d at 27; see also PETA, 797 F.3d at 1094 n.4.
An organizational plaintiff must, in addition to alleging facts to establish cognizable harm under Havens, satisfy the requirements for alleging the second and third elements of Article III standing—causation and redressability. In a case where “a plaintiff’s asserted injury arises from the Government’s regulation of a third party that is not before the court, it becomes ‘substantially more difficult’ to establish standing.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. (“Nat’l Wrestling”), 366 F.3d 930, 938 (D.C. Cir. 2004) (quoting Lujan, 504 U.S. at 562 (citing Allen v. Wright, 468 U.S. 737, 758 (1984))). “Because the necessary elements of causation and redressability in such a case hinge on the independent choices of the regulated third party, ‘it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.’” Id. (quoting Lujan, 504 U.S. at 562). Thus, “mere ‘unadorned speculation’ as to the existence of a relationship between the challenged government action and the third-party conduct ‘will not suffice to invoke the federal judicial power.’” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976)).
“While the burden of production to establish standing is more relaxed at the pleading stage than at summary judgment, a plaintiff must nonetheless allege ‘general factual allegations of injury resulting from the defendant’s conduct’ (notwithstanding ‘the court presumes that general allegations embrace the specific facts that are necessary to support the claim’).” Nat’l Ass’n of Home Builders, 667 F.3d at 12 (quoting Sierra Club, 292 F.3d at 898–99); see also
36

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 37 of 77
Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.”).
2. Analysis of Plaintiffs’ Organizational Standing The plaintiffs aver that they collectively “have alleged facts that . . . constitute injuries in fact traceable to the Defendants’ actions and redressable by this Court” because HUD’s withdrawal of the LG2017 Tool has “effectively suspend[ed]” the AFFH Rule, thereby frustrating their “abilit[ies] to carry out [their] missions,” making “it harder for [them] to provide core programmatic services,” and requiring them “to divert resources to efforts to counteract the effect of that action.” Pls.’ Opp’n MTD at 1, 5. HUD disputes that withdrawal of this Tool constitutes a suspension of the AFFH Rule and contends that the plaintiffs’ “dissatisfaction with policy choices made by [HUD] in determining how best to administer its block-grant programs for local governments” does not “rise[ ] to the level of an Article III case or controversy.” Defs.’ Reply Supp. Mot. Dismiss (“Defs.’ Reply MTD”) at 1, ECF No. 41. Moreover, in HUD’s view, the plaintiffs’ “litany of complaints about” the manner in which local governments comply with the AFFH statutory requirement “all . . . ‘hinge on the independent choices’ of third parties not before the Court.” Defs.’ Mem. MTD at 20 (quoting Nat’l Wrestling, 366 F.3d at 938). HUD’s position, thus, is that the plaintiffs, who are not themselves regulated entities, “lack a cognizable Article III injury that can properly be traced to HUD and redressed by this Court, and for that reason the Amended Complaint should be dismissed.” Defs.’ Reply MTD at 1. The plaintiffs counter that they do not “claim[ ] harm [ ] based on local governments’ failure to reach particular substantive outcomes,” but rather that their “injury derives directly from HUD’s suspension of concrete requirements for local governments,” and, thus, “requiring HUD to reinstate those requirements—all of which make it much easier for Plaintiffs to do their work
37

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 38 of 77
and advance their missions—would directly redress the injuries that Plaintiffs claim.” Pls.’ Opp’n MTD at 17. This is a close case, but HUD has the more persuasive argument on standing.
a) First Element: Injury in Fact HUD’s acknowledgment of the superiority of the AFH process set out in the AFFH Rule, over the admittedly flawed AI process, in meeting the AFFH statutory requirement, see Mot. Hr’g at 68:25–69:5, does not confer organizational standing on the plaintiffs, even though adoption by the agency of a less effective process may frustrate the plaintiffs’ overarching missions of promoting compliance with the AFFH statutory requirement. A cognizable injury for the purposes of standing is not so simply met; if it were, anyone genuinely interested in promoting steps for affirmatively furthering fair housing could have standing in the instant matter. As the D.C. Circuit has explained, “[s]tanding protects democratic government by requiring citizens to express their generalized dissatisfaction with government policy through the Constitution’s representative institutions, not the courts,” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1278–79 (D.C. Cir. 2012), and “thus helps preserve the Constitution’s separation of powers and demarcates ‘the proper—and properly limited—role of the courts in a democratic society,’” id. at 1279 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). See also FWW, 808 F.3d at 926 (Henderson, J., concurring) (noting that “our circuit has drawn a brightline between private-party suits and suits against the government to compel the state to take, or desist from taking, certain action,” the latter of which “implicate most acutely the separation of powers, which, the Supreme Court instructs, is the ‘single basic idea’ on which the Article III standing requirement is built” (quoting Spann, 899 F.2d at 25–26)). The plaintiffs’ asserted injury must be clearly identified and then assessed under the D.C. Circuit’s two-prong analysis for determining whether an organizational plaintiff has established a cognizable injury under Havens. First, the plaintiffs must show that HUD’s withdrawal of the
38

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 39 of 77
LG2017 Tool and reversion to the AI process “perceptibly impaired a non-abstract interest” of the plaintiffs, see Nat’l Ass’n of Home Builders, 667 F.3d at 12 (internal quotation marks omitted), and “[s]econd, the plaintiff must show that it ‘used its resources to counteract that harm,’” EPIC, 878 F.3d at 378 (quoting PETA, 797 F.3d at 1094).
(1) Withdrawal of the LG2017 Tool does not perceptibly impair the plaintiffs’ missions The plaintiffs allege that they have suffered an injury because “HUD’s suspension of the AFFH Rule impairs their ability to carry out their respective missions,” Pls.’ Opp’n MTD at 5, and because withdrawal of the LG2017 Tool has deprived them of “critical procedural protections that make it far easier to develop and promote local policies that affirmatively further fair housing,” id. at 1. As noted, supra Part I.B.1, the plaintiffs’ overarching missions are to promote fair housing. In particular, NFHA seeks “to promote residential integration and combat discrimination in housing based on race, national origin, disability, and other protected classes covered by federal, state, and local fair housing laws.” Am. Compl. ¶ 16; see also Second Decl. Deborah Goldberg, Vice President of Housing & Special Projects, NFHA (“NFHA Decl.”) (dated June 25, 2018) ¶ 2, ECF No. 37-2. Texas Housers focuses “on expanding housing opportunities for low-income residents of Texas,” Am. Compl. ¶ 17, and has “worked on issues relating to residential segregation and access to fair housing choice throughout Texas,” Second Decl. John Henneberger, Co-Director, Texas Housers (“Texas Housers Decl.”) ¶ 3, ECF No. 196. Finally, Texas Appleseed seeks “to promote social and economic justice for all Texans, including by” helping Texans “recover in the wake of natural disasters,” ensuring “communities are rebuilt to be more resilient,” and ensuring “that all families have the opportunity to live in safe, decent neighborhoods with equal access to educational and economic opportunity.” Am.
39

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 40 of 77
Compl. ¶ 18; see also Second Decl. Madison Sloan, Director of the Disaster Recovery & Fair Housing Project, Texas Appleseed (“Texas Appleseed Decl.”) ¶ 2, ECF No. 19-7.
The plaintiffs contend that HUD’s withdrawal of the LG2017 Tool harmed their ability to carry out these missions because “HUD’s action deprives Plaintiffs of many of the Rule’s procedural protections,” including “the requirements that jurisdictions solicit community participation,” “respond to public comments, and undergo HUD review.” Pls.’ Opp’n MTD at 6. The plaintiffs cite, as examples, four AFFH Rule provisions for this procedural injury assertion: (1) 24 C.F.R. § 5.158, which “describe[es] community participation, consultation, and coordination”; (2) 24 C.F.R. § 91.100(a)(1), which “list[s] the types of organizations with which program participants must consult, including fair housing groups”; (3) 24 C.F.R. § 5.154(d)(6), which “requir[es] program participants to respond to public comments”; and (4) 24 C.F.R. § 5.162, which “provid[es] for HUD review and acceptance or non-acceptance of program participants’ AFH submissions.” Id. The plaintiffs further allege that withdrawal of the LG2017 Tool “hinder[s] Plaintiffs’ ability to obtain the information necessary to monitor and ensure jurisdictions’ compliance with the requirement to affirmatively further fair housing.” Id.12 These arguments fail to recognize that many aspects of the AFFH Rule remain active, even with the withdrawal of the LG2017 Tool, and, in light of these active provisions, HUD’s withdrawal of the Tool does not “perceptibly impair” the plaintiffs’ abilities to carry out their missions,

12

Based on the plaintiffs’ briefing, the defendants conjured that the plaintiffs put forth “three overlapping

theories of Article III standing—informational, procedural, and organizational.” Defs.’ Reply MTD at 2. Plaintiffs’

counsel clarified at the motions hearing that the plaintiffs are not claiming an informational injury, Mot. Hr’g at

37:2–8 (responding to Court’s query whether “[y]ou are not claiming . . . an informational injury; is that right?”

plaintiffs’ counsel stated “Yes”). Instead, the injury claimed by the plaintiffs is that “the deprivation of these

procedural and informational mechanisms are causing plaintiffs’ activities to be perceptibly impaired, and that’s

frustrating their mission. We are not [ ] arguing, specifically, that the denial of the information is, like in a FOIA

case, the harm standing alone.” Id. at 36:13–20; see also Pls.’ Opp’n MTD at 15 (claiming procedural injury).

40

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 41 of 77
League of Women Voters, 838 F.3d at 8, or cause a “direct conflict” with the organizations’ mission[s],” NTEU, 101 F.3d at 1430.
As an initial matter, and as all parties concede, certain key portions of the AFFH Rule remain active, including the definitions of “affirmatively furthering fair housing,” “community participation,” and certain “data,” which all apply when local governments submit their Consolidated Plans to HUD and certify their compliance with the AFFH requirement. See 24 C.F.R. §§ 5.152, 91.225(a)(1); Mot. Hr’g at 14:24–21:24; 61:2–64:11. These new definitions apply to the AIs that local government agencies, as well as other program participants, must complete in lieu of AFHs, see Mot. Hr’g at 61:2–64:11, and, rather than impede the plaintiffs’ missions, these new, more detailed definitions actually aid their missions.
In addition, while the plaintiffs argue that withdrawal of the LG2017 Tool “deprives Plaintiffs” of “the requirement[ ] that jurisdictions solicit community participation,” Pls.’ Opp’n MTD at 6, the AFFH Rule includes new community participation requirements that remain active even without use of the AFH process and Assessment Tools. For example, the new regulation, 24 C.F.R. § 5.158, which the plaintiffs specifically identify as a basis for their injury, see Pls.’ Opp’n MTD at 6, requires that, “[t]o ensure that the AFH, the consolidated plan, and the PHA Plan and any plan incorporated therein are informed by meaningful community participation,” program participants must “employ communications means designed to reach the broadest audience,” including by, inter alia, “publishing a summary of each document in one or more newspapers of general circulation, and by making copies of each document available on the Internet,” 24 C.F.R. § 5.158(a) (emphasis added). Thus, to the extent the plaintiffs argue they have been deprived of any benefit conferred by this regulation, they are mistaken because the provision continues to be active.
41

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 42 of 77
Similarly, § 91.100(a)(1), also cited by the plaintiffs in asserting their injury, continues to require “consult[ation] with other public and private agencies that provide assisted housing, health services, and social services” in the preparation of a Consolidated Plan. 24 C.F.R. § 91.100(a)(1). Despite the fact that local government program participants temporarily have been relieved of the obligation to prepare and submit AFHs, they are still required to submit Consolidated Plans and, in doing so, must continue to solicit community participation. Although the plaintiffs posit that the public participation requirements attendant to the Consolidated Plan process “are not equivalent to those imposed as part of the AFH process that HUD has suspended,” Pls.’ Opp’n MTD at 9–10, the difference is not so great as to “‘perceptibly impair[ ]’ the [plaintiffs’] ability to provide services in order to establish injury in fact.” Turlock Irr. Dist., 786 F.3d at 24 (quoting Equal Rights Ctr., 633 F.3d at 1138–39). The fact that these provisions remain active, despite withdrawal of the LG2017 Tool, indicates that the plaintiffs’ missions have not been “perceptibly impaired” by HUD’s actions.
Given that significant requirements of the AFFH Rule remain intact, the fact that certain other obligations cited by the plaintiffs, including 24 C.F.R. § 5.154(d)(6) (public comments process) and § 5.162 (submission to, and review by, HUD of AFHs), are presently dormant does not translate to the dismantling and suspension of the AFFH Rule in a way that affects the plaintiffs’ mission-driven activities to a degree that is sufficient for showing organizational standing. To be sure, withdrawal of the LG2017 Tool has suspended certain procedures and additional analysis required under the AFFH Rule and resulted in a concomitant loss in the effectiveness of HUD’s enforcement of the AFFH statutory requirement. Yet, even granting that the plaintiffs’ mission has been compromised by HUD’s actions “does not impart standing.” Nat’l Taxpayers Union, 68 F.3d at 1433. Given the continuing opportunities for the plaintiffs to
42

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 43 of 77
participate in the now somewhat more robust AI process (due to the portions of the AFFH Rule that remain active), the extent to which the challenged HUD notices directly conflict or perceptibly impede the plaintiffs’ mission-oriented activities seems difficult to measure, or, in other words, are imperceptible.
This conclusion is bolstered by examination of the plaintiffs’ descriptions of their daily operations, which have not been perceptibly impeded because they remain able to “educate community members and organizations, organize individuals to attend public meetings,” “develop and submit public comments,” and “work with community members and government entities,” Pls.’ Opp’n MTD at 6–7, even without program participants being required to submit an AFH. Indeed, the plaintiffs’ declarations indicate that they have been taking precisely these actions since the withdrawal of the LG2017 Tool. See, e.g., NFHA Decl. ¶¶ 8, 10 (explaining that, after HUD’s withdrawal of the LG2017 Tool, NFHA has been “conducting affirmative outreach to NFHA members” and “provid[ing] extensive comments in response to HUD’s January notice”); Texas Housers Decl. ¶ 17 (noting Texas Housers’ actions after withdrawal of the Tool of “participat[ing] in a number of conference calls with national partners,” “provid[ing] an on line webinar,” and “submit[ing] extensive comments to HUD objecting to the suspension of the rule and the AFH process”). Perhaps most significantly, the plaintiffs can still encourage local government program participants to use the now-withdrawn LG2017 Tool; indeed, the plaintiffs’ declarations reveal that “[t]hree large Regional AFHs in Texas [ ] are proceeding using the AFH assessment process and tool despite HUD’s actions to withdraw the AFH tool.” Texas Appleseed Decl. ¶ 24; see also Texas Housers Decl. ¶ 17 (noting that Texas Housers has “urge[d] local jurisdictions to continue to use the AFH template and HUD data to submit AFHs rather than AIs”).
43

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 44 of 77
Furthermore, although the plaintiffs contend that the LG2017 Tool “require[d]” program participants to engage in community participation efforts, Pls.’ Opp’n MTD at 9, the AFFH Rule indicates that many forms of community participation that the plaintiffs complain are no longer available were not mandatory in the AFH process. See, e.g., AFFH Rule, 80 Fed. Reg. at 42,325 (noting that “consultation with adjacent units of general local government, while encouraged, is not mandatory”) (emphasis added); id. at 42,328 (noting that “HUD already strongly encourages collaboration by program participants”); id. at 42,332 (encouraging, but not requiring, “PHAs to collaborate with relevant entities); id. at 42,339 (noting that, while “[p]rogram participants are encouraged to undertake active outreach efforts” such as “survey[ing] local opinions about diversity,” “the rule does not require it outside of the public participation requirements in the rule”). Given the discretionary nature of these rules, HUD’s withdrawal of LG2017 has not deprived the plaintiffs of such procedural protections.
The plaintiffs also argue that withdrawal of the LG2017 Tool harmed their ability to carry out their missions by relieving HUD of the obligation to review each program participant’s AFH and provide feedback during the process. Pls.’ Opp’n MTD at 6. Although local governments temporarily have been relieved of the obligation to submit AFHs, and HUD temporarily has been relieved of the obligation to review and accept AFHs, HUD continues to review Consolidated Plans. Under an active provision of the AFFH Rule, Consolidated Plans must now include a certification that the participant “will affirmatively further fair housing,” 24 C.F.R. § 5.166(a), and the AFFH Rule includes “[n]ew AFFH certification language at §§ 91.225, 91.325, 91.425, and 903.15(d)(3),” providing “the standard under which HUD will review the validity of AFFH certifications,” AFFH Rule, 80 Fed. Reg. at 42,299. HUD therefore remains engaged in reviewing program participants’ certification efforts, indicating that withdrawal of the LG2017
44

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 45 of 77
Tool did not result in “a direct conflict between the defendant’s conduct and the [plaintiffs’] mission[s].” Abigail All., 469 F.3d at 133.
The plaintiffs primarily invoke two cases to show how they have suffered cognizable harm from HUD’s withdrawal of the LG2017 Tool, but the cases are distinguishable. First, the plaintiffs rely on Action Alliance, 789 F.2d 931 (D.C. Cir. 1986), to argue that HUD’s action “deprive[d] them of regularized ‘access to information and avenues of redress they wish to use in their routine’ activities in furtherance of their missions.” Pls.’ Opp’n MTD at 7 (quoting Action All., 789 F.2d at 937–38). In Action Alliance, the organizational plaintiff asserted that an agency’s elimination of two regulations restricted “a generous flow of information regarding services available to the elderly” that would have “enhance[d] the capacity of [the plaintiff] to refer members to appropriate services.” Action All., 789 F.2d at 937. The D.C. Circuit concluded that the organizational plaintiff had standing, because the plaintiffs had “alleged inhibition of their daily operations” and because “the ultimate relief appellants seek cannot sensibly be viewed as dependent upon the actions of third parties.” Id. at 938. Here, however, the plaintiffs have not established that their daily operations were inhibited. Before withdrawal of the LG2017 Tool, the plaintiffs were engaged in “researching and assessing impediments to fair housing,” “organiz[ing] and conduct[ing] community meetings,” and “train[ing] local residents on the requirements of the AFH rules.” Texas Housers Decl. ¶ 7. After withdrawal of the Tool, the plaintiffs contend that they will have to “meet on an ongoing and regular basis with community groups,” “analyze public records related to governmental expenditures,” and “convene meetings and information sharing activities to keep local affected persons and organizations involved and informed about each of the many fair housing issues that confront the area.” Id. ¶ 14. The plaintiffs’ daily operations therefore do not appear to be tangibly different
45

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 46 of 77
in kind to those occurring before the withdrawal of the LG2017 Tool or to have been “perceptibly impaired” by HUD’s withdrawal of the LG2017 Tool. League of Women Voters, 838 F.3d at 8.
The plaintiffs similarly rely on PETA and argue that they have been “harm[ed] [ ] in similar ways” to the plaintiff in that case. Pls.’ Opp’n MTD at 8. In PETA, the D.C. Circuit concluded that the organization had standing because the U.S. Department of Agriculture’s (“USDA’s”) failure to apply certain animal welfare regulations to birds “perceptibly impaired PETA’s ability to both bring [Animal Welfare Act (‘AWA’)] violations to the attention of the agency charged with preventing avian cruelty and to continue to educate the public.” PETA, 797 F.3d at 1095 (internal quotation marks omitted). Importantly, AWA violations could be brought only if the animal in question fell within the scope of the AWA, which did not include birds, and although the USDA had issued a Notice of Proposed Rulemaking for “avian-specific animal welfare regulations,” id. at 1091, the agency “ha[d] repeatedly set, missed, and then rescheduled deadlines” for the publication of those regulations, id., thereby directly preventing PETA from being able to bring AWA violations to the agency.
Here, however, HUD’s withdrawal of the LG2017 tool has not prevented the plaintiffs from being able to file complaints with HUD, as several of the plaintiffs have done successfully in the past. See, e.g., Texas Appleseed Decl. ¶ 4 (describing the Texas Plaintiffs’ 2009 discrimination complaint against HUD based on Texas’s allegedly inadequate AI); Texas Housers Decl. ¶ 4 (same). Similarly, the plaintiffs here remain able to “continue to educate the public” and to seek “investigatory information” from program participants, rather than directly from HUD. PETA, 797 F.3d at 1095. For example, the plaintiffs may continue to “analyze public records related to governmental expenditures, practices and policies,” Texas Housers
46

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 47 of 77
Decl. ¶ 14, and may even encourage local government program participants to continue using the LG2017 Tool despite HUD’s withdrawal, see Texas Appleseed Decl. ¶ 24 (noting that “[t]hree large Regional AFHs in Texas [ ] are proceeding using the AFH assessment process and tool despite HUD’s actions to withdraw the AFH tool”). Unlike the organization in PETA, then, the plaintiffs remain able to bring an entity’s failure to meet its AFFH obligations to HUD and to educate the public regarding AFFH obligations.
For all the reasons provided, the plaintiffs have not satisfied the first prong of Havens standing, which requires a showing that the plaintiffs’ mission-driven activities were perceptibly impaired.
(2) Withdrawal of the LG2017 Tool has not caused a drain in the plaintiffs’ resources Even if the necessary impairment were established, the plaintiffs have also failed to satisfy the second prong of Havens standing—a showing that they have had to divert resources to counteract the withdrawal of the LG2017 Tool in the form of expending “‘operational costs beyond those normally expended’ to carry out [their] advocacy mission[s].” Nat’l Ass’n of Home Builders, 667 F.3d at 12 (quoting Nat’l Taxpayers Union, 68 F.3d at 1434). The plaintiffs claim that, “[b]y removing the procedural protections and clear accountability structure of the AFFH Rule, HUD has compelled Plaintiffs to divert significant resources to efforts to counteract the effects of suspension.” Pls.’ Opp’n MTD at 12. This claim falls for two main reasons. First, as explained above, the plaintiffs are largely engaged in the same kinds of activities now that they were undertaking before the withdrawal of the LG2017 Tool and even before promulgation of the AFFH Rule, namely, education, research, advocacy, and counseling. For example, the plaintiffs allege that HUD’s withdrawal of the LG2017 Tool has forced them to “put[ ] greater resources into community education efforts, without the benefit of the focused
47

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 48 of 77
AFH process to do it more efficiently.” Id. at 13. The plaintiffs’ argument admits, however, that even without the withdrawal of the Tool, they would be engaged in the same activity— withdrawal of the Tool merely makes their efforts less “efficient[ ].” Id.
The plaintiffs’ declarations further reveal that withdrawal of the LG2017 Tool has not required that they spend more on operational costs. For example, before withdrawal of the LG2017 Tool, Texas Housers “hired researchers, consultants and contractors to develop information and policy solutions around locally specific fair housing issues that could be addressed through the AFH process,” “organized and conducted many small and large community meetings,” and “trained local residents on the requirements of the AFH rules.” Texas Housers Decl. ¶ 7. In these efforts, Texas Housers spent at least $60,000, which represents only part of its work. See id. (providing amounts of money spent on AFH efforts in Fort Worth (“at least $7,000”), Amarillo and Lubbock (“at least $13,000”), and Hidalgo County (“at least $40,000”)). After HUD’s withdrawal of the LG2017 Tool, Texas Housers continues to “participate[ ] in a number of conference calls with national partners,” “provide[ ] an on line webinar,” “communicate with[ ] many jurisdictions in Texas,” and “invest resources in educating local groups.” Id. ¶¶ 17, 22. Now, rather than expend money and resources helping local groups understand and participate in the AFH process, Texas Housers is expending resources encouraging local jurisdictions to continue following the AFH process. In fact, although Texas Housers contends that it will, for instance, “be required to expend additional resources” in Hidalgo County “to secure compliance by HUD,” id. ¶ 14, Texas Housers provides no dollar figure to show an increase in its operational costs over those costs associated with ensuring this jurisdiction fully complied with the AFH process. The other plaintiffs have similarly failed to demonstrate that withdrawal of the LG2017 Tool has caused them to modify the general nature
48

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 49 of 77
of their daily activities or to increase the amount of money they spend on their operational costs. Compare, e.g., NFHA Decl. ¶ 6 (explaining that, after the AFFH Rule was promulgated, NFHA “provided training, technical assistance, and support to NFHA members that were engaging in the community participation process” for AFHs) with id. ¶ 10 (noting that, after withdrawal of the LG2017 Tool, NFHA is “developing written materials to help members continue advocating for effective AFFH activities in their communities and counseling and providing technical support to individual members”). Any shift in the plaintiffs’ focus simply does not amount to the expenditure of “operational costs beyond those normally expended.” Nat’l Taxpayers Union, 68 F.3d at 1434.
In addition, the law is clear that “budgetary choice[s]” do not satisfy the requirements for demonstrating a “consequent drain on resources.” Feld, 659 F.3d at 25. The plaintiffs allege that, after the withdrawal of the LG2017 Tool, they “have had to divert resources to attempt to generate the same local fair housing commitments that the Rule would have required as a matter of law,” Pls.’ Opp’n MTD at 13, and have “been forced to divert resources from planned activities such as events to commemorate the 50th anniversary of the passage of the Fair Housing Act, the publication of its annual trends report, technical assistance to its members regarding equitable disaster recovery, and federal fair lending advocacy,” id. at 14. The plaintiffs made a choice to spend their money on “written materials,” “counseling,” and “technical support” to “continue advocating for effective AFFH activities” after withdrawal of the Tool, rather than to spend that money on publishing an annual trends report or on equitable disaster recovery. NFHA Decl. ¶ 10. The plaintiffs cannot claim to have been injured by this reallocation of funds “simply because [they] chose to spend [their] money” on some programs rather than on others. Equal Rights Ctr., 633 F.3d at 1139. Although the plaintiffs contend that this diversion of resources
49

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 50 of 77
was necessary to counteract HUD’s “unlawful[ ]” action, Pls.’ Opp’n MTD at 13, as discussed above, HUD’s withdrawal of the LG2017 Tool did not cause perceptible harm to the plaintiffs’ abilities to further their missions. The plaintiffs’ diversion of resources to counteract that unestablished harm thus cannot, on its own, satisfy the standing requirements. Accordingly, the plaintiffs have failed to allege all components of an Article III injury in fact and do not have organizational standing in this matter.
b) Second and Third Elements: Causation and Redressability The plaintiffs’ arguments for causation and redressability are entirely premised on the plaintiffs’ theory of injury in fact. In the plaintiffs’ view, their “injury derives directly from HUD’s suspension of concrete requirements for local governments,” and, thus, “[a]n order requiring HUD to reinstate those requirements—all of which make it much easier for Plaintiffs to do their work and advance their missions—would directly redress the injuries that Plaintiffs claim.” Id. at 17. As explained above, since HUD’s withdrawal of the LG2017 Tool did not cause a cognizable injury under the theory of organizational standing that the plaintiffs put forth, the plaintiffs’ causation and redressability arguments cannot hold. In any event, when injury in fact is not established, causation and redressability need not be considered. Even assuming, however, the plaintiffs could establish that HUD’s withdrawal of the LG2017 Tool caused a cognizable injury, any theories of causation and redressability that the plaintiffs assert would be too speculative because redress would largely be premised on the actions of third parties. The plaintiffs, obviously, are not HUD grantees, nor are they required to prepare an AFH or use the LG2017 Tool. Defs.’ Mem. MTD at 10. As the D.C. Circuit has noted, “courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third-party conduct.” Nat’l Wrestling, 366 F.3d at 940; see also Arpaio, 797 F.3d at 20 (“We have required ‘substantial evidence of a causal
50

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 51 of 77
relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.’” (quoting Nat’l Wrestling, 366 F.3d at 941)); Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007). In National Wrestling, the plaintiffs, who were “membership organizations representing the interests of collegiate men’s wrestling coaches, athletes, and alumni,” Nat’l Wrestling, 366 F.3d at 935, challenged an interpretive rule promulgated by the Department of Education, which laid out three ways in which the Department would assess whether educational institutions had complied with Department regulations requiring such institutions to select sports and levels of competition to “effectively accommodate the interests and abilities of members of both sexes,” id. at 934–35 (internal quotation marks omitted).
The D.C. Circuit found causation and redressability lacking in National Wrestling because “nothing but speculation suggests that schools would act any differently than they do with the [challenged interpretive rule] in place” since “[s]chools would remain free to eliminate or cap men’s wrestling teams and may in some circumstances feel compelled to do so to comply with the statute and the [previous Department] Regulations.” Id. at 940. Further, the court found that “other reasons unrelated to the challenged legal requirements [e.g., moral considerations, budget constraints] may continue to motivate schools to take such actions.” Id. From this analysis, and a comprehensive review of the case law, the National Wrestling court concluded that “it is purely speculative whether a decision in appellants’ favor would alter the process by which schools determine whether to field certain sports teams.” Id. at 944.
Similarly here, even with the LG2017 Tool in place, local governments may still not engage in all the activities that the plaintiffs assert are necessary for those entities to affirmatively further fair housing. For instance, the Hidalgo County Consortium was obligated
51

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 52 of 77
to complete and submit an AFH to HUD, but the Consortium failed to engage with certain populations, including colonias, to the plaintiffs’ satisfaction. See Pls.’ Mem. Supp. Renewed Mot. Preliminary Injunction & for Summ. J. (“Pls.’ Mem. PI”) at 36–37, ECF No. 19-11. In fact, as even the plaintiffs note, “[i]n essence, the Hidalgo AFH had all of the same problems that prior AIs had, either because Hidalgo County was not attentive to the new requirements, or thought that HUD wouldn’t enforce them.” Texas Appleseed Decl. ¶ 16. While this example makes plain that the LG2017 Tool—or any Assessment Tool under the AFFH Rule—is no panacea, the plaintiffs contend that “HUD’s withdrawal of the AFH places additional barriers in the way of convincing” jurisdictions such as Hidalgo County “to conduct a fair housing assessment that complies with their statutory obligation to AFFH.” Id. ¶ 19. At this point, however, given the uncertainty surrounding the effect of the AFH process, as it has thus far existed, whether reinstatement of the LG2017 Tool would result in any greater efforts of HUD grantees to comply with their statutory obligations under the AFFH requirement is too speculative. See LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,924 (explaining that 63 percent of AFHs originally submitted were not acceptable).
Moreover, it is worth noting that the reasoning at the heart of National Wrestling is not unique and has been applied in numerous other cases from this Circuit and in the Supreme Court to conclude that a plaintiff lacks standing. See, e.g., Allen, 468 U.S. at 758; Simon, 426 U.S. at 40–46; Warth, 422 U.S. at 507; Renal Physicians, 489 F.3d at 1276–78; Crete Carrier Corp. v. EPA, 363 F.3d 490, 493–94 (D.C. Cir. 2004); Fla. Audubon Soc’y, 94 F.3d at 669–71; Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 416–19 (D.C. Cir. 1994); see also Arpaio, 797 F.3d at 27–28 (finding arguments for causation “overly speculative” where the “injury rest[ed] on the behavior of third parties” and “[t]he link between” the government programs at issue and the
52

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 53 of 77
future actions of third parties was “too attenuated and susceptible to intervening factors”); Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 176 (D.C. Cir. 2012) (finding alleged injury “speculative at best” where it “depend[ed] upon the acts of third parties not before the court”); CSPAN v. FCC, 545 F.3d 1051, 1054–57 (D.C. Cir. 2008) (concluding that plaintiffs lacked standing to challenge regulation imposed on third-party market participants where causation and redressability were “speculative”).
The exceptions to this line of cases further illuminate the insufficiency of the plaintiffs’ showing regarding standing. In two cases from this Circuit—Tozzi v. U.S. Department of Health & Human Services, 271 F.3d 301 (D.C. Cir. 2001), and Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986)—the Court of Appeals found causation and redressability despite the fact that the challenged agency actions regulated third parties not before the court. As the Circuit recognized in National Wrestling, however, both of those cases contained “record[s] [that] presented substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Nat’l Wrestling, 366 F.3d at 941. For example, in Tozzi, the plaintiffs, who were manufacturers of PVC plastic that contained the chemical dioxin, challenged a decision by the U.S. Department of Health and Human Services to add dioxin to the category of “known” carcinogens. See id. (discussing Tozzi). The court found standing based on the introduction of “affidavits and other record evidence demonstrating that municipalities and health care organizations opted to phase out their use of PVC plastic as a direct result of the Secretary’s decision.” Id. (citing Tozzi, 271 F.3d at 308–09). Similarly, Block involved a challenge by a group of film distributors to a decision of the Department of Justice to classify certain films as “political propaganda.” Block, 793 F.2d at 1306–07. The court concluded that the plaintiffs had established causation and redressability
53

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 54 of 77
based on “the recitation of instances in which potential customers declined to take the film because of the classification,” as well as based on “the affidavits of potential customers” stating that they would have purchased the films but for the government’s classification. Id. at 1308.
In this case, the plaintiffs point to evidence that, but for HUD’s withdrawal of the LG2017 Tool, particular jurisdictions would have engaged in the more rigorous analysis outlined under the AFFH Rule for the AFH process. For instance, several local government agencies in Hidalgo County, Corpus Christi, and Fort Worth prepared deficient AFHs and, without the LG2017 Tool in place and the HUD submission requirement, these jurisdictions have no incentive to work on improving their AFHs and thus will submit equally deficient AIs. See Texas Housers Decl. ¶¶ 14–16; Texas Appleseed Decl. ¶¶ 15–21. The same evidence of the deficient AFHs, however, demonstrates that, even with the LG2017 Tool in place, these jurisdictions fell short of complying with HUD guidance and requirements. See, e.g., Texas Appleseed Decl. ¶ 16 (discussing Hidalgo County Consortium’s failure to “consider and accept or reject any of the comments [the plaintiffs] submitted” on its AFH); id. (explaining Hidalgo county’s failure to “examine neighborhood level segregation and disparities in access to opportunity” in its AFH); Texas Housers Decl. ¶ 15 (noting Fort Worth’s failure to “address important civil rights issues” in its AFH); id. ¶ 16 (providing that Corpus Christi’s AFH “barely acknowledged massive housing loss, extended displacement, and infrastructure impacts caused by Hurricane Harvey just a few months earlier”). This evidence does not readily suggest, let alone establish, that reinstatement of the LG2017 Tool will result in compliance with AFFH Rule requirements by these or other program participants. See, e.g., LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,924 (providing that 63 percent of AFHs originally submitted were not
54

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 55 of 77
acceptable). For these reasons, the plaintiffs’ submissions have not demonstrated that this case falls within the exceptions to National Wrestling.
* * * For these reasons, the plaintiffs have failed to allege facts sufficient to satisfy any of the three elements of Article III standing as organizational plaintiffs challenging HUD’s two May notices withdrawing the LG2017 Tool for local government agencies and directing compliance with the prior AI process. Essentially, the plaintiffs in this case have asked this Court to undo HUD’s choice among alternative mechanisms for overseeing local government agencies’ compliance with a particular component of agency-administered grant programs, while the statutory requirement remains intact, the agency rule remains at least in part effective, and the plaintiffs’ mission-driven activities, though more challenging, continue unimpeded. The Court is without jurisdiction to micromanage agency choices on program implementation when the plaintiffs bringing suit lack a cognizable injury to their mission of having program participants fulfill an important statutory requirement more effectively and also do not have a cognizable injury that is caused by the challenged agency action or fully redressable, even if that agency action were ordered reversed. B. The Plaintiffs Are Not Entitled to a Preliminary Injunction The plaintiffs have failed to meet the threshold hurdle of showing organizational standing under the Rule 12(b)(1) standard. Had this showing been made, the plaintiffs would nonetheless not be entitled to the preliminary injunctive relief they seek under the heightened standard for resolving motions for preliminary injunctions, as explained below.
1. The Plaintiffs Have Not Established a Likelihood of Success on the Merits In addressing their likelihood of success on the merits, the plaintiffs assert two claims: first, that withdrawal of the LG2017 Tool required notice-and-comment rulemaking procedures,
55

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 56 of 77
and second, that withdrawal of that Tool was arbitrary or capricious. See Pls.’ Mem. PI at 14– 15. The plaintiffs have not established a likelihood of success on the merits of either argument.
a) Withdrawal of the LG2017 Tool Did Not Require Notice-andComment Procedures
The plaintiffs first contend that they are likely to succeed on the merits because HUD’s notices in May 2018 “effectively suspended the AFFH Rule without observing the notice-andcomment procedures that the APA requires.” Id. at 17. HUD counters that the APA’s noticeand-comment requirements do not apply to the AFH Assessment Tools, which HUD argues are more properly described as “information-collection devices governed by the Paperwork Reduction Act.” Defs.’ Opp’n PI at 23. HUD has the better argument.
The APA generally requires a federal agency to engage in notice-and-comment procedures when promulgating “legislative” or “substantive” rules. Mendoza, 754 F.3d at 1021; 5 U.S.C. § 553(b). Specifically, a “notice of proposed rule making” must be “published in the Federal Register” and notify the public of “the time, place, and nature of public rule making proceedings”; “the legal authority under which the rule is proposed”; and “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(1)–(3). “[A]n agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked and may not alter such a rule without notice and comment.” Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (alterations and internal quotation marks omitted). Notably, “an order delaying [a] rule’s effective date” is “tantamount to amending or revoking a rule.” Id. at 6; see also Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 194 (2d Cir. 2004) (“[A]ltering the effective date of a duly promulgated standard could be, in substance, tantamount to an amendment or rescission of the standard[ ].”); Envtl. Def. Fund, Inc. v. EPA,
56

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 57 of 77
716 F.2d 915, 920 (D.C. Cir. 1983) (“[S]uspension or delayed implementation of a final regulation normally constitutes substantive rulemaking under APA § 553.”).
If a rule is more properly classified as an “information collection” mechanism, however, that rule is not subject to APA notice-and-comment procedures and instead falls under the ambit of the Paperwork Reduction Act (“PRA”), 44 U.S.C. § 3501, et seq., which seeks to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons resulting from the collection of information by or for the Federal Government.” Id. § 3501(1). Under the PRA, an agency is required to submit any proposed collection of information to the OMB for review and approval. See id. § 3507(a)(1)(C). “Collection of information” is defined as “obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency” that call for either “answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States,” or “answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.” Id. § 3502(3)(A)(i)–(ii); see also Action All. of Senior Citizens of Greater Phila. v. Sullivan, 930 F.2d 77, 79 (D.C. Cir. 1991). The Supreme Court has explained that “[t]ypical information collection requests include tax forms, Medicare forms, financial loan applications, job applications, questionnaires, compliance reports, and tax or business records,” Dole v. United Steelworkers of Am., 494 U.S. 26, 33 (1990), and the D.C. Circuit has concluded that “[t]o come within this definition the [device in question] must impose a ‘reporting requirement’ on applicants,” Benkelman Tel. Co. v. FCC, 220 F.3d 601, 607 (D.C. Cir. 2000) (quoting Saco River Cellular, Inc. v. FCC, 133 F.3d 25, 33 (D.C. Cir. 1998)).
57

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 58 of 77
Once such an information-collection rule is forwarded to OMB, OMB can “approve, disapprove, or ‘instruct the agency to make substantive or material change,’” CTIA-The Wireless Ass’n v. FCC, 530 F.3d 984, 987 (D.C. Cir. 2008) (quoting 44 U.S.C. § 3507(e)(1)), and must “provide at least 30 days for public comment prior to making a decision,” 44 U.S.C. § 3507(b). OMB approval of an information collection may not exceed three years, 44 U.S.C. § 3507(g), but the PRA does not otherwise impose any requirements on the withdrawal of an informationcollection rule, see id. §§ 3506–07.
The plaintiffs argue that, by withdrawing the LG2017 Tool, HUD “alter[ed] the substantive requirements imposed by regulation, without undertaking notice-and-comment rulemaking.” Pls.’ Mem. PI at 20. This argument assumes that the Assessment Tools are “legislative” or “substantive” rules subject to the APA’s notice-and-comment requirements. Here, however, the Assessment Tools are more properly classified as “information collection devices” governed by the requirements of the PRA, rather than the APA. HUD explained that the “Assessment Tool aides [sic] program participants in their analysis by providing a series of questions about fair housing issues and contributing factors and providing menus for several responses to certain questions.” AFFH Rule, 80 Fed. Reg. at 42,347. The Assessment Tools are thus essentially “questionnaires,” which the Supreme Court has noted are “[t]ypical information collection requests.” United Steelworkers, 494 U.S. at 33. Rather than “effect[ing] a substantive change in existing law or policy,” Mendoza, 754 F.3d at 1021, the Assessment Tools are “meant to aid program participants in determining if and where conditions exist that may restrict fair housing choice and access to opportunity,” AFFH Rule, 80 Fed. Reg. at 42,282, and to “guide[ ] program participants in considering access to public transportation, quality schools and jobs, exposure to poverty, environmental health hazards, and the location of deteriorated or abandoned
58

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 59 of 77
properties when identifying where fair housing issues may exist,” id. (emphasis added). The Assessment Tools also impose reporting requirements on applicants, given that once OMB has approved an Assessment Tool, the relevant program participants are then required to submit an AFH using the Assessment Tool and HUD data. See 24 C.F.R. § 5.154(d); Benkelman Tel., 220 F.3d at 607 (noting that an information-collection rule “must impose a ‘reporting requirement’ on applicants”) (internal quotation marks omitted).
Moreover, the AFFH Rule itself specifies that the Assessment Tools were intended to be information-collection devices subject to the requirements of the PRA, not the APA. See AFFH Rule, 80 Fed. Reg. at 42,276 (“[T]he burden imposed by the Assessment Tool and additional Assessment Tools issued by HUD must, in accordance with the Paperwork Reduction Act, be renewed for approval by the Office of Management and Budget (OMB) every 3 years.”); id. at 42,352 (noting that HUD published its first notice under the PRA on September 26, 2014, and that “[t]he Assessment Tool is undergoing the required notice and solicitation of public comment process required by the Paperwork Reduction Act”). The AFFH Rule and the corresponding regulations clarify that “the Assessment Tool will be subject to periodic notice and opportunity to comment in order to maintain the approval of the Assessment Tool as granted by the Office of Management and Budget (OMB) under the PRA.” Id. at 42,353; see also 24 C.F.R. § 5.152. Given the definition of “Assessment Tools” as “forms or templates and the accompanying instructions provided by HUD that program participants must use to conduct and submit an AFH,” 24 C.F.R. § 5.152, HUD properly determined that the Assessment Tools were subject to the requirements of the PRA, rather than the APA.
Nevertheless, even assuming the plaintiffs are somehow correct that the withdrawal of the LG2017 Tool is governed by the APA’s notice-and-comment requirements, the plaintiffs’
59

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 60 of 77
argument fails. The plaintiffs’ argument rests on the contention that, “by withdrawing the Assessment Tool that makes completion of an AFH possible,” HUD “effectively suspended the AFFH Rule without observing the notice-and-comment procedures that the APA requires.” Pls.’ Mem. PI at 17; see also Clean Air Council, 862 F.3d at 9 (“[A]n agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked and may not alter such a rule without notice and comment.” (alterations and internal quotation marks omitted)). This premise is incorrect—withdrawal of the LG2017 Tool did not suspend the AFFH Rule. Although the AFFH Rule and the Assessment Tool are related, the AFFH Rule remains in effect despite the withdrawal of the LG2017 Tool. For example, as discussed above, the new definitions promulgated in the AFFH Rule remain active, as do the new provisions requiring recordkeeping, community participation, and certification. See 24 C.F.R. §§ 5.152, 5.158, 5.166, 5.168. These provisions address several of the primary concerns voiced in the GAO 2010 Report and highlighted in the preamble to the AFFH Rule. See GAO 2010 Report at summary page, 32–33. Although the provisions specifically relating to development, submission, and revision of AFHs are dormant until a new Assessment Tool is published, other provisions in the AFFH Rule remain active and binding on program participants. Withdrawal of the LG2017 Tool thus did not amount to a wholesale withdrawal or suspension of the AFFH Rule.
In addition, HUD’s May 2018 notice withdrawing the LG2017 Tool made clear that, pursuant to 24 C.F.R. § 5.160(a)(3), until a “revised and approved Local Government Assessment Tool” is issued, each program participant must “continue to provide the AFFH certification with its Consolidated Plan, in accordance with the requirements that existed prior to August 17, 2015.” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,926. HUD explained that it was “immediately seeking comment on ways to make the Local Government Assessment Tool
60

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 61 of 77
workable and effective,” id., and that local government program participants would be required to submit a first AFH “not less than 9 months following the future publication of a revised and approved Local Government Assessment Tool,” id. The AFFH Rule thus remains active, and the deadline for program participants to submit their AFHs will be automatically reimposed, pursuant to the Rule, upon HUD’s issuance of a revised and OMB-approved Assessment Tool. Indeed, local government program participants are now in the same position as the other program participants for which HUD has not yet published an applicable Assessment Tool.
The plaintiffs also contend that “HUD erroneously relies on [24 C.F.R.] § 5.160(a)(1)(ii) to authorize its suspension of the Rule.” Pls.’ Reply Mem. Supp. Mot. PI (“Pls.’ Reply PI”) at 3, ECF No. 37. That regulatory provision provides that a program participant need not submit a first AFH submission until at least nine months after an applicable Assessment Tool has been published. 24 C.F.R. § 5.160(a)(1)(ii). The AFFH Rule thus acknowledged and anticipated that Assessment Tools would be approved and published at different times and that an approved Tool might not be published for every type of program participant when the AFH submission requirements began to take effect for some types. See U.S. DEP’T OF HOUSING AND URBAN DEVELOPMENT, AFFH RULE GUIDEBOOK 17 (Dec. 15, 2015), available at https://www.hudexchange.info/resources/documents/AFFH-Rule-Guidebook.pdf. In addition, because Assessment Tools must “maintain the approval of” OMB, 24 C.F.R. § 5.152, which approval may last for no longer than three years, see 44 U.S.C. § 3507(g), the AFFH Rule evidently contemplated that certain Tools would lapse and repeatedly would be assessed and evaluated.
In the plaintiffs’ view, however, “§ 5.160(a)(1)(ii) was added to ensure adequate transition time for entities whose Assessment Tools were published after the one used by
61

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 62 of 77
‘entitlement jurisdictions’” like local governments. Pls.’ Reply PI at 5. Nothing in that provision, however, limits its applicability to only future Assessment Tools. Indeed, as of the issuance of the AFFH Rule on July 16, 2015, no Local Government Assessment Tool had yet been published—LG2015 was not published until December 31, 2015. See generally LG2015 Tool Announcement, 80 Fed. Reg. at 81,840; Pls.’ Reply PI at 5. Thus, withdrawal of the LG2017 Tool merely placed local government program participants on the same footing as the other types of program participants, for which HUD had never issued an applicable Assessment Tool. Accordingly, the plaintiffs have not established a likelihood of success on their claim that HUD’s withdrawal of the LG2017 Tool was invalid for failing to follow APA notice-andcomment procedures.
b) Withdrawal of the LG2017 Tool Was Not Arbitrary or Capricious The plaintiffs next contend that HUD’s withdrawal of the LG2017 Tool, “an action that renders the AFFH Rule inoperative for local jurisdictions,” was arbitrary and capricious. Pls.’ Mem. PI at 21–35. HUD correctly asserts, as explained supra Part III.A, that the AFFH Rule remains operative and responds that it acted reasonably in withdrawing LG2017 given the high AFH failure rate and the costs HUD would have been required to expend to assist program participants in submitting compliant AFHs. See Defs.’ Opp’n PI at 27–38. Again, HUD has the better argument.13 “One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016); see also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (“The

13

To reiterate, the relevant action here is HUD’s withdrawal of the LG2017 Tool through the two May

notices—not a wholesale suspension of the AFFH Rule for local governments. Thus, only the withdrawal of the

LG2017 Tool is evaluated under the arbitrary-and-capricious standard.

62

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 63 of 77
requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result.”). An agency therefore “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Encino Motorcars, 136 S. Ct. at 2125 (quoting State Farm, 463 U.S. at 43). “Where the agency has failed to provide a reasoned explanation, or where the record belies the agency’s conclusion, [the court] must undo its action.” Cty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (internal quotation marks and citation omitted).
In examining an agency’s decision, however, a court “must ‘not substitute its own judgment for that of the agency.’” Mayo v. Reynolds, 875 F.3d 11, 19–20 (D.C. Cir. 2017) (alterations omitted) (quoting State Farm, 463 U.S. at 43). Rather, an agency’s decision ordinarily will be upheld “so long as the agency ‘examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.’” Animal Legal Def. Fund, 872 F.3d at 611 (alterations omitted) (quoting State Farm, 463 U.S. at 43). HUD has provided adequate reasoning for its decision to withdraw the LG2017 Tool, and accordingly, the plaintiffs have failed to establish a likelihood of success on this argument.
The plaintiffs present three primary reasons why HUD’s decision to withdraw the LG2017 Tool allegedly was arbitrary and capricious. First, the plaintiffs argue that “HUD failed to adequately explain why its professed concerns justified its decision to withdraw the AFH Assessment Tool.” Pls.’ Mem. PI at 22 (capitalization omitted). Second, the plaintiffs contend that “HUD ignored the benefits of ongoing implementation of the AFFH Rule.” Id. at 30 (capitalization omitted). Finally, the plaintiffs assert that HUD’s action was “contrary to the Fair Housing Act.” Id. at 32 (capitalization omitted). The plaintiffs’ critical appraisal of HUD’s
63

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 64 of 77
reasons for withdrawing the LG2017 Tool raises legitimate concerns but, ultimately, falls short of establishing that the reasons HUD provided are arbitrary or capricious.
The plaintiffs first contend that HUD failed to adequately explain its decision to withdraw the LG2017 Tool because it did not explain why the low acceptance rate of initial AFH submissions was problematic, id. at 22, why HUD’s expenditure of resources made the LG2017 Tool unworkable, id. at 24, how purported deficiencies in the Tool caused these problems, id. at 26, and why these problems could not be fixed by a measure short of withdrawing the Tool, id. at 27. Many of these concerns speak for themselves. In withdrawing the LG2017 Tool, HUD explained that, between October 2016 and December 2017, HUD had “received, reviewed, and issued initial decisions on 49 AFHs submitted by local government program participants,” but that, of these submissions, “a significant proportion of program participants had difficulty completing or understanding how to use the Tool to complete acceptable AFHs.” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,923. Only 37 percent of the initial submissions were “determined to be acceptable on initial submission,” and another 28 percent of the submissions “were accepted only after the program participants submitted revisions and additional information in the form of addendums in response to HUD’s technical assistance.” Id. at 23,923–24. HUD explained that “[t]he high failure rate from the initial round of submissions” and “the level of technical assistance HUD provided to this initial round of 49 AFHs” impacted its decision because that assistance “cannot be scaled up to accommodate the increase in the number of local government program participants with AFH submission deadlines in 2018 and 2019.” Id. at 23,923. The low acceptance rate was especially problematic because HUD had issued the LG2017 Tool in an attempt to “clearly convey[ ] the analysis of fair housing issues and contributing factors that program participants must undertake” to submit a compliant AFH,
64

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 65 of 77
LG2017 Announcement, 82 Fed. Reg. at 4,390, but the low acceptance rate of initial submissions indicated that the LG2017 Tool was not conveying the analysis and factors as “clearly” as HUD intended.
HUD also explained why its expenditure of resources to assist program participants rendered the LG2017 Tool unworkable. Given that this Tool was expected to “guid[e] program participants to produce meaningful AFHs,” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,922, the fact that HUD was required to expend considerable resources to assist participants was in direct conflict with the goal of simplifying the AFH process. In promulgating the AFFH Rule, HUD had estimated “resource costs to HUD of $9 million annually” across all types of program participants, including states, PHAs, and local governments. AFFH Rule, 80 Fed. Reg. at 42,273. In reviewing the limited use of the LG2017 Tool alone, however, HUD estimated that it had spent “over $3.5 million on technical assistance for the initial round of 49 AFH submissions” from local governments, LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,925, and noted that the number of such submissions was slated to increase exponentially, with “104 local government program participants [ ] scheduled to submit AFHs to HUD” in 2018, while at least 682 AFHs were expected in 2019. Id.; see also HUD Decl. ¶ 35. In fact, HUD spent $109,815.08 on direct technical assistance only to the City of Philadelphia and the Philadelphia Housing Authority, see HUD Decl. ¶ 19, over $300,000 on direct technical assistance for the first 49 AFH submissions, id. ¶ 26, and nearly $1.5 million on regional trainings, id. ¶ 24. Thus, HUD concluded that “[t]he level of technical assistance provided to the initial 49 participants could not be extended to these numbers of AFHs due in 2018 and 2019.” LG 2017 Withdrawal Notice, 83 Fed. Reg. at 23,925.
HUD also explained that it would not be able to “scale up” this assistance to accommodate that increase, because HUD staffers are required to “communicate with program
65

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 66 of 77
participants” and must assess AFHs on a case-by-case basis. Id. at 23,925; Defs.’ Opp’n PI at 32–33. While the plaintiffs contend that “[t]he bulk of HUD’s expenditures have been for onetime start-up costs or for trainings not primarily attended by representatives of the initial 49 submissions,” Pls.’ Reply PI at 10, HUD explained that these costs would have to be repeated in the creation of Assessment Tools for other program participants, including for states and PHAs. Defs.’ Opp’n PI at 30–33. Moreover, although HUD “expected that, particularly at the beginning, a number of jurisdictions would need additional feedback,” Pls.’ Reply PI at 8 (quoting Pls.’ Mot. PI, Ex. 5, Second Decl. Janet Hostetler (“Second Hostetler Decl.”) ¶ 10, ECF No. 19-5), HUD reasonably determined that this amount of feedback was unworkable given the anticipated increase in submissions in 2018 and 2019, and that its money could instead be used to further fair housing in other, potentially more effective, ways.
Although the plaintiffs contend that potentially high costs in 2019 did not justify withdrawing the tool in 2018, Mot. Hr’g at 33:18–35:4, 91:7–14, HUD was not obligated to keep in place a system that, in the agency’s view, drained its financial and personnel resources while it simultaneously expended resources working to remedy the defects in the Tool. The plaintiffs’ criticism here evidences a strong policy difference with HUD about resource allocation, rather than a showing that HUD made an arbitrary or capricious policy choice. See Heckler v. Chaney, 470 U.S. 821, 842 (1985) (concluding that an agency’s action “that is based on valid resourceallocation decisions will generally not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (internal quotation marks omitted)); Nat’l Trust for Historic Pres. v. Blanck, 938 F. Supp. 908, 925 (D.D.C. 1996) (“[T]he APA does not permit this Court to substitute its judgment for that of the agency with respect to resource allocations, so
66

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 67 of 77
long as those allocations are not arbitrary or capricious, an abuse of discretion or contrary to law.” (citing Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 415 (1971))).
HUD’s withdrawal notice also explained how the Tool’s deficiencies created these problems: as just one example, the questions in the LG2017 Tool “vaguely incorporate[d] by reference” certain existing requirements in the Consolidated Plan regulations but “d[id] not explicitly state the specific requirements or ask that program participants explain how they met these specific requirements.” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,924. HUD specified “at least seven different categories of critical problems with the Local Government Assessment Tool,” including such problems as “[i]nadequate community participation,” “insufficient use of local data and knowledge,” “lack of regional analysis,” and “inadequate responses due to duplication of questions.” Id. The LG2017 Withdrawal Notice then provided a detailed explanation of each of these seven broad categories, concluding that “this summary of issues describes the basis for HUD’s determination that the Assessment Tool is ineffective and unduly burdensome on program participants.” Id. Finally, regarding possible approaches short of withdrawing the Tool, HUD explained that “[w]ithdrawal and revision of the Assessment Tool will also conserve HUD’s limited resources, allowing HUD to use those limited resources more effectively to help program participants produce meaningful improvements in the communities they serve.” Id. at 23,926. Although the plaintiffs have identified several steps that they allege HUD could have taken, see Pls.’ Reply PI at 15, HUD has adequately explained why HUD believed withdrawing the LG2017 Tool was justified.
The plaintiffs next argue that HUD “ignored the benefits already accruing from the AFH process.” Pls.’ Mem. PI at 30; Pls.’ Reply PI at 16. As HUD explains, however, the withdrawal of the LG2017 Tool “was motivated in part by a concern that HUD’s inability to provide
67

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 68 of 77
sufficient technical assistance in 2018 and 2019 would mar any progress made.” Defs.’ Opp’n PI at 38 (citing LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,925–26). HUD further explained that “uncertainty” regarding “how to submit an acceptable AFH” would lead to “uncertainty regarding the status of [participants’] HUD-funded programs,” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,926, such that withdrawing the Tool entirely was the most effective way of eliminating that uncertainty. Moreover, as explained above, although the plaintiffs characterize the withdrawal of the LG2017 Tool as “an unexplained 180 degree turn away from precedent,” Pls.’ Mem. PI at 30 (internal quotation marks and alterations omitted), the AFFH Rule remains in effect, albeit in a diminished form, and HUD has not indicated abandonment of Assessment Tools altogether. Rather, HUD concluded that withdrawing the LG2017 Tool and soliciting comments for further improvements to “make it more effective in assisting program participants” was the best way to affirmatively further fair housing. LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,926. Indeed, the LG2017 Withdrawal Notice explains that the participants’ AFH deadlines will be triggered once a replacement Tool is published, and that the participants are required to “continue to comply with existing, ongoing legal obligations to affirmatively further fair housing (legal obligations which AFHs were merely intended to help participants plan to fulfill).” Id. HUD thus was not reversing its position but rather taking an action that it perceived would better further the AFFH Rule in the long term. Again, the plaintiffs’ disagreement with HUD’s policy choice concerning the need for further improvements to the LG2017 Tool to continue its deployment does not render this agency decision arbitrary or capricious.
Finally, the plaintiffs contend that “[b]y reverting to a failed regulatory system that HUD has already found to be inadequate, HUD is failing to carry out its affirmative duties under the Fair Housing Act.” Pls.’ Mem PI. at 32; see also Pls.’ Reply PI at 16–18. The plaintiffs are
68

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 69 of 77
correct that, in withdrawing the LG2017 Tool, HUD instructed local government program participants to “conduct an analysis of impediments [ ] to fair housing choice,” which is the process that existed prior to the promulgation of the AFFH Rule. AI Reliance Notice, 83 Fed. Reg. at 23,927. The FHA does not define, however, the precise methods by which HUD is obligated to affirmatively further fair housing and does not require HUD to adopt certain procedures over others. Indeed, as HUD notes, program participants “have an independent obligation to affirmatively further fair housing, regardless [of] whether they conduct an AFH or an AI.” Defs.’ Opp’n PI at 39 (citing 42 U.S.C. §§ 12705(b)(15), 1437c-1(d)(16), 5304(b)(2), 5306(d)(7)(B)).
In support of this argument, the plaintiffs offer several cases to show that “courts have consistently found” that “the Fair Housing Act imposes on HUD a duty to provide a strong system of oversight and accountability that ensures recipients of federal funds actually take meaningful steps to affirmatively further fair housing.” Pls.’ Mem. PI at 32 (citing Shannon, 436 F.2d at 819–21; NAACP, 817 F.2d at 158; Thompson v. U.S. Dep’t of Hous. & Urban Dev., 348 F. Supp. 2d 398 (D. Md. 2005)). Neither Shannon nor NAACP discusses the AI process, however. In Shannon, the plaintiffs alleged that “HUD had no procedures for consideration of and in fact did not consider [the] effect on racial concentration” resulting from a proposed apartment project. Shannon, 436 F.2d at 811. The Third Circuit concluded that, although HUD may exercise “broad discretion to choose between alternative methods of achieving the national housing objectives,” id. at 819, HUD must nevertheless exercise that discretion “within the framework of the national policy against discrimination in federally assisted housing” and must consider “social factors” including race discrimination, id. The court did not address the efficacy of the AI process in particular, however.
69

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 70 of 77
Similarly, in NAACP, the plaintiffs alleged that “HUD had failed to enforce constitutional and statutory proscriptions against discrimination in Federally-assisted programs.” NAACP, 817 F.2d at 151 (internal quotation marks omitted). The First Circuit concluded that HUD must “do more than simply refrain from discriminating (and from purposely aiding discrimination by others),” id. at 155, and must instead “take seriously its minimal Title VIII obligation to evaluate alternative courses of action in light of their effect upon open housing,” id. at 157. NAACP also did not address the AI process specifically, but rather concluded that courts must “decide whether, over time, HUD’s pattern of activity reveals a failure to live up to its obligation.” Id. at 158.
In Thompson, the District of Maryland did consider the AI process in addressing a challenge in which the plaintiffs alleged that Baltimore City had discriminated against residents of public housing units on the basis of race. Thompson, 348 F. Supp. 2d at 404. In concluding that the federal defendants had “fail[ed] adequately to consider regional approaches to ameliorate racial segregation in public housing in the Baltimore Region,” id. at 524, the court analyzed Baltimore City’s AI and HUD’s review of the AI, but the court did not conclude that the AI process itself was to blame. Rather, the court focused on HUD’s inappropriately narrow focus on “rearranging Baltimore’s public housing residents within the Baltimore City limits,” rather than on “the effect of its policies on the racial and socioeconomic composition of the surrounding area” and on “regional approaches to promoting fair housing opportunities for African-American public housing residents in the Baltimore Region.” Id. at 409. Thus, while Shannon, NAACP, and Thompson each fault HUD for failing to “live up to its statutory mandate” to affirmatively further fair housing and consider race discrimination, id., those cases do not hold that the AI process itself is an improper method of fulfilling that obligation. HUD has “broad
70

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 71 of 77
discretion to choose between alternative methods of achieving the national housing objectives set forth in the several applicable statutes,” Shannon, 436 F.2d at 819, and the Court may not substitute its judgment for HUD’s in determining the best way of doing so.
Thus, contrary to the plaintiffs’ assertions, the agency “adequately explain[ed] why [HUD’s] professed concerns justified its decision to withdraw the AFH Assessment Tool.” Pls.’ Mem. PI at 22 (capitalization omitted), engaged in reasoned decisionmaking, and did not act contrary to the Fair Housing Act. Accordingly, even had the plaintiffs had organizational standing, they would not have shown a likelihood of success on their claim that HUD’s action was arbitrary or capricious.
2. Risk of Irreparable Harm “The party seeking a preliminary injunction must make two showings to demonstrate irreparable harm.” League of Women Voters, 838 F.3d at 7. “First, the harm must be ‘certain and great,’ ‘actual and not theoretical,’ and so ‘imminent that there is a clear and present need for equitable relief to prevent irreparable harm.’” Id. at 7–8 (alteration omitted) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). “Second, the harm ‘must be beyond remediation.’” Id. at 8 (quoting Chaplaincy, 454 F.3d at 297). As discussed supra Part III.A.2, an organizational party establishes such harm if the “actions taken by [the defendant] have ‘perceptibly impaired’ the [organization’s] programs.” Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (quoting Havens, 455 U.S. at 379). “If so, the organization must then also show that the defendant’s actions ‘directly conflict with the organization’s mission.’” League of Women Voters, 838 F.3d at 8 (quoting NTEU, 101 F.3d at 1430). The plaintiffs contend that “HUD’s unlawful withdrawal of the Assessment Tool, suspension of the AFH process, and reversion to the AI process is causing, and absent an
71

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 72 of 77
injunction will continue to cause, irreparable harm” to the plaintiffs. Pls.’ Mem. PI at 35. As discussed above, however, the plaintiffs have failed to show even a substantial likelihood of standing—rather, they have failed to establish Article III standing because they have failed to establish an injury in fact. Without an injury in fact, the plaintiffs have not suffered the higher threshold of “irreparable harm” that is required for a preliminary injunction. League of Women Voters, 838 F.3d at 7.
3. Balance of Equities and Public Interest The third and fourth factors that courts consider in determining whether a preliminary injunction is warranted are “a balance of the equities in [the plaintiffs’] favor, and accord with the public interest.” Id. at 6 (quoting Pursuing Am.’s Greatness, 831 F.3d at 505). In evaluating these factors, courts must “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). The plaintiffs argue that both the balance of the equities and the public interest support their request for preliminary relief, contending that “[a] preliminary injunction would not harm HUD,” Pls.’ Mem. PI at 44, because “[t]here is generally no public interest in the perpetuation of an unlawful agency action,” id. (internal quotation marks omitted; alteration in original), and because the AFFH Rule has provided “substantial benefit not only for program participants but also for the communities they serve and the United States as a whole,” id. at 45 (internal quotation marks omitted). Again, the plaintiffs have not suffered an injury as a result of HUD’s actions. By contrast, although the plaintiffs contend that “[a] preliminary injunction would not harm HUD,” id. at 44, requiring HUD to leave the LG2017 Tool in place and provide assistance to the local governments required to submit AFHs would require the expenditure of potentially millions of dollars that could otherwise be directed toward improving the Assessment Tool or
72

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 73 of 77
other federal housing priorities. See Defs.’ Opp’n PI at 43. HUD would also have to “make substantial reallocations of resources to maintain the necessary involvement in AFH reviews,” id. (citing HUD Decl. ¶¶ 32–35), as failure to provide adequate assistance to local governments might “run the risk of endangering their receipt of federal funds should HUD prove unable to guide them through the AFH process using the defective tool,” id. at 43–44. Finally, although the plaintiffs are correct that “[t]here is generally no public interest in the perpetuation of unlawful agency action,” Pls.’ Mem. PI at 44 (quoting League of Women Voters, 838 F.3d at 12), HUD’s actions in withdrawing the LG2017 Tool were not unlawful, as discussed above. Accordingly, the plaintiffs, even if they had standing, would not have met their burdens of showing that the balance of equities and consideration of the public interest support the injunctive relief they seek.
C. New York State’s Motion to Intervene Federal Rule of Civil Procedure 24 states that the Court “must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” FED. R. CIV. P. 24(a)(2). To intervene as a matter of right under Rule 24(a), “(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant’s interests.” Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)); see also Aref v. Holder, 774 F. Supp. 2d 147, 171 (D.D.C. 2011). If a movant does not meet the requirements to intervene as a matter of right, intervention may nonetheless be allowed, pursuant
73

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 74 of 77
to Rule 24(b), if the movant “has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1)(B).
For either intervention as a matter of right or permissive intervention, however, the movant must establish Article III standing. See Deutsche Bank, 717 F.3d at 193 (“It is [ ] circuit law that intervenors must demonstrate Article III standing.”); Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731–32 (D.C. Cir. 2003) (“[I]n addition to establishing its qualification for intervention under Rule 24(a)(2), a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution.”). New York has failed to do so.
New York contends that HUD’s withdrawal of the LG2017 Tool causes injury to the State’s proprietary interests because that action “will make it more difficult for New York’s local jurisdictions to analyze barriers to fair housing choices or identify meaningful actions to address these barriers,” NYS’s Mem. at 4, but this purported injury is speculative. While New York contends that its state housing authority “reviews and relies upon the data and analyses that local jurisdictions submit to HUD” and is therefore harmed by HUD’s withdrawal of this Assessment Tool, id. at 6, the State is free to require submissions of its own. Indeed, HUD’s responses to comments on the AFFH Rule indicate that many other avenues remain open to States seeking to affirmatively further fair housing. For example, state housing finance agencies must still use Qualified Allocation Plans (“QAPs”) to “establish the criteria by which applicants will be awarded low-income housing tax credits.” AFFH Rule, 80 Fed. Reg. at 42,326. Although commenters requested that QAPs be included in the AFH process, HUD rejected this proposal and encouraged “innovative approaches by States to encourage state housing finance agencies to
74

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 75 of 77

affirmatively further fair housing through benefits and incentives.” Id. New York thus remains able to use QAPs, among other processes, to further its fair-housing goals.14
Moreover, New York is not a local government entitled to use the LG2017 Tool; rather, New York claims that its alleged interest arises because “its own ability to comply with the Fair Housing Act is undermined by HUD’s suspension and withdrawal of its fair-housing guidance for local governments.” NYS’s Reply Supp. Mot. Intervene (“NYS’s Reply”) at 2, ECF No. 36. The fear that local governments’ AIs will be less “robust” or “complete” than the AFHs that they would have been required to submit with the LG2017 Tool in place is hardly a concrete and particularized injury. See NYS’s Mem. at 6. Local governments are still required to submit AIs and, under the provisions of the AFFH Rule that remain active, are required to fulfill enhanced recordkeeping, certification, and community participation standards. See 24 C.F.R. §§ 5.158, 5.166, 5.168. Indeed, 24 C.F.R. § 570.490(b) requires States to “establish recordkeeping requirements for units of general local government receiving CDBG funds that are sufficient to facilitate reviews and audits of such units,” thereby authorizing States to impose such recordkeeping requirements as they see fit. In addition, given the low success rate of the first round of AFH submissions, New York has no assurances that the local governments’ AFHs would have been more helpful than the AIs will be.
New York also contends that “HUD’s recent actions also directly injure the State’s parens patriae interests,” NYS’s Mem. at 7, thereby causing injury to the State’s “quasisovereign interests,” NYS’s Reply at 4–7. Generally, “a State does not have standing as parens

14

New York explained, at the motions hearing, that using QAPs in place of the AFH process would be

“inadequate . . . compared to the AFHs” because some areas of the State “don’t have low income housing” and

because the State “do[es]n’t necessary award [low-income housing tax credits] every year, or even [every] five

years.” Mot. Hr’g at 84:12–19. Even recognizing that some parts of the State may not award low-income housing

tax credits, however, New York provided no reason why local government program participants that do award such

credits could not use QAPs to help further fair housing. See AFFH Rule, 80 Fed. Reg. at 42,326 (encouraging states

to explore “innovative approaches” to furthering fair housing).

75

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 76 of 77
patriae to bring an action against the Federal Government.” Md. People’s Counsel v. FERC, 760 F.2d 318, 320 (D.C. Cir. 1985) (alteration omitted). New York points to a line of district court cases, primarily in New York district courts, that have “allowed States to bring suits parens patriae against the federal government where enforcement of a federal right is sought, rather than the avoidance of a federal statute.” New York v. Sebelius, No. 07-cv-1003, 2009 WL 1834599, at *12 (N.D.N.Y. June 22, 2009); see also Massachusetts v. EPA, 549 U.S. 497, 520 n.20 (2007) (recognizing a “critical difference between allowing a State ‘to protect her citizens from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do)” (quoting Georgia v. Pa. R. Co., 324 U.S. 439, 447 (1945))). Although the D.C. Circuit has recognized that “the state, under some circumstances, may sue in that capacity for the protection of its citizens,” City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (D.C. Cir. 2002) (quoting Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)), the Circuit has yet to elaborate on what those circumstances include and has not recognized the distinction between enforcement suits and avoidance suits. Cf. Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 477 (D.C. Cir. 2009) (noting that “only the United States, and not the states, may represent its citizens and ensure their protection under federal law in federal matters” (citing Mellon, 262 U.S. at 485–86)).
Assuming parens patriae standing were available, New York has not satisfied its burden of showing “[a] quasi-sovereign interest” that is “sufficiently concrete to create an actual controversy between the State and the defendant.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). New York contends that “[t]he inevitable delays to fairhousing reforms caused by HUD’s actions will substantially injure New York’s quasi-sovereign interests in the health and well-being of its residents,” NYS’s Mem. at 7, which includes “a
76

Case 1:18-cv-01076-BAH Document 47 Filed 08/17/18 Page 77 of 77
state’s interest in eradicating discrimination in all its forms,” id. HUD made clear in promulgating the AFFH Rule, however, that the final rule “is a planning rule, not a rule directed to the enforcement of the duty to affirmatively further fair housing.” AFFH Rule, 80 Fed. Reg. at 42,313. New York has not established how withdrawing the LG2017 Tool harms its interest in lessening discrimination, especially given the enhanced AFFH certification, recordkeeping, and community participation requirements that remain in effect even without a published Assessment Tool. Accordingly, New York has failed to establish standing and the State’s motion to intervene is denied.15 IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss, ECF No. 38, for lack of standing is granted, and the plaintiffs’ Motion for a Preliminary Injunction, ECF No. 19, is consequently denied. The State of New York’s Motion to Intervene, ECF No. 24, is also denied for lack of standing. An appropriate Order accompanies this Memorandum Opinion.
Date: August 17, 2018
__________________________ BERYL A. HOWELL Chief Judge

15

In certain cases, “even if [a] court lacks jurisdiction over [an] action brought by [the] original parties, [an]

intervenor may continue suit if it provides an independent jurisdictional basis.” Aeronautical Radio, Inc. v. FCC,

983 F. 2d 275, 283 (D.C. Cir. 1993) (citing Simmons v. ICC, 716 F.2d 40, 46 (D.C. Cir. 1983)). Given New York’s

lack of standing, however, no such independent jurisdictional basis is present here. See id. at 283–84 (finding no

“independent jurisdictional basis” when intervenor failed to “satisfy the requirements of Article III standing”).

77

 
 Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, et al.,
Plaintiffs,
v.
BENJAMIN C. CARSON, SR., M.D., in his official capacity as Secretary of Housing and Urban Development, et al.,
Defendants.

Civil Action No. 18-1076 Chief Judge Beryl A. Howell

MEMORANDUM OPINION The three plaintiffs, an alliance of nonprofit organizations dedicated to promoting fair housing opportunities plus two organizations focused on housing opportunities in Texas, previously sought a preliminary injunction and expedited motion for summary judgment to require the defendant, the U.S. Department of Housing and Urban Development (“HUD”), to rescind administrative action taken on May 23, 2018 suspending the use of an “Assessment Tool,” a version of which was first adopted by the agency in December 2015. See Pls.’ Mot. Prelim. Injunc. & Exped. Summ. J., ECF No. 19; see also HUD Notice, Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments (“LG2017 Withdrawal Notice”), 83 Fed. Reg. 23,922 (May 23, 2018); HUD Notice, Affirmatively Furthering Fair Housing (AFFH): Responsibility to Conduct Analysis of Impediments (“AI Reliance Notice”), 83 Fed. Reg. 23,927 (May 23, 2018). HUD had taken these steps after concluding, based on operational experience, that the Assessment Tool was unsustainably costly, see LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,925, and ultimately ineffective for its purpose, namely: ensuring HUD grantees were affirmatively furthering fair housing, id. at

1

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 2 of 17
23,923–25. In this litigation, HUD both opposed the plaintiffs’ motions, see Defs.’ Opp’n Pls.’ Mot. Summ. J., ECF No. 33, and moved to dismiss the action for lack of subject matter jurisdiction because no plaintiff had standing, see Defs.’ Mot. Dismiss Pls.’ Am. Compl. (“Defs.’ MTD”), ECF No. 38. The Court granted HUD’s motion to dismiss for lack of subject matter jurisdiction and further held that the plaintiffs would not have been entitled to the injunctive relief they sought, even if they had standing. See Nat’l Fair Hous. All. v. Carson (“NFHA”), 330 F. Supp. 3d 14 (D.D.C. 2018).
Now, with a proposed second amended complaint that would add to the first amended complaint 46 new paragraphs and three new sections, respectively titled “How the Consolidated Plan Differs from the Assessment of Fair Housing,” Proposed Second Am. Compl., ¶¶ 79–85, ECF No. 48-1, “The AI Process Under HUD’s Notices,” id. ¶¶ 112–117, and “Significant Provisions of the Rule That Are No Longer in Effect,” id. ¶¶ 118–128, the plaintiffs seek, pursuant to Federal Rules of Civil Procedure 59(e) and 15(a)(2), to set aside the prior decision and restart this litigation. See Pls.’ Mot. Am. J. & Leave Am. Compl. (“Pls.’ Mot.”), ECF No. 48; Pls.’ Mem. Supp. Mot. Am. J. & Leave Am. Compl. (“Pls.’ Mem.”), ECF No. 48. This time around, rather than seeking expedited summary judgment, the plaintiffs want to follow the regular course in an Administrative Procedure Act case by requiring “submission of HUD’s entire administrative record,” Pls.’ Reply Supp. Mot. Am. J. & Leave Am. Compl. (“Pls.’ Reply”) at 6, ECF No. 51, so that the claims may be resolved on “a fuller record,” id. at 1. Thus, the plaintiffs’ motion asks the Court to amend its decision only with respect to whether the plaintiffs have standing, but without challenging the “denial of Plaintiffs’ motion for a preliminary injunction or expedited summary judgment.” See Pls.’ Mem. at 1 n.1. For the reasons set forth below, the plaintiffs’ motion is denied.
2

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 3 of 17
I. BACKGROUND The statutory, regulatory, and factual background for this case were accounted for in the
Court’s opinion granting the defendants’ motion to dismiss. See NFHA, 330 F. Supp. 3d at 24– 37. Still, the background bears repeating here to some degree as context for why the plaintiffs’ Rule 59(e) motion is denied.
A. Statutory and Regulatory Framework The Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq., prohibits discrimination based on “race, color, religion, sex, familial status, or national origin” in the sale and rental of housing and other residential real estate–related transactions. Id. §§ 3604–05. That statute also requires HUD to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of” fair housing, id. § 3608(e)(5), known as the “affirmatively further fair housing,” or “AFFH,” requirement. The AFFH requirement imposes duties on HUD, Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973), which HUD meets, in part, through grants to State and local governments. To qualify for funds under the largest of these grants, “a grantee must submit a consolidated plan.” 24 C.F.R. § 570.302. A Consolidated Plan operates as (1) “[a] planning document for the jurisdiction, which builds on a participatory process among citizens, organizations, businesses, and other stakeholders”; (2) “[a] submission for federal funds under HUD’s formula grant programs for jurisdictions”; (3) “[a] strategy to be followed in carrying out HUD programs”; and (4) “[a] management tool for assessing performance and tracking results.” Id. § 91.1(b). Moreover, grantees, also known as program participants, must certify that the grant will be administered to comply with the AFFH requirement. 42 U.S.C. § 5304(b)(2) (local
3

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 4 of 17
government grantees); id. § 5306(d)(7)(B) (State grantees); id. § 12705(b)(15) (State and local grantees); id. § 1437c-1(d)(16) (public housing agency grantees).
Beginning in the 1990s, HUD required grantees certifying compliance with the AFFH requirement to undergo a process called Analysis of Impediments in Fair Housing (“AI”). See 24 C.F.R. § 91.225(a)(1) (1995). That process called for grantees to analyze impediments to fair housing within the relevant jurisdiction, respond appropriately to those impediments, and maintain relevant records. Id. Experience proved, however, that the AI process failed to ensure compliance with the AFFH requirement. See U.S. GOV’T ACCOUNTABILITY OFFICE, RPT. NO. GAO-10-905, HOUSING AND COMMUNITY GRANTS: HUD NEEDS TO ENHANCE ITS REQUIREMENTS AND OVERSIGHT OF JURISDICTIONS’ FAIR HOUSING PLANS (2010), available at https://www.gao.gov/assets/320/311065.pdf; U.S. DEP’T OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF POLICY DEVELOPMENT AND RESEARCH, ANALYSIS OF IMPEDIMENTS STUDY (2009), available at http://www.documentcloud.org/documents/365748-hud-reportingcompliance-report.html.
In 2013, HUD took a significant step toward overhauling the ineffectual AI process by proposing a rule that would revamp how HUD enforced grantees’ compliance with the AFFH requirement. See HUD Proposed Rule, Affirmatively Furthering Fair Housing, 78 Fed. Reg. 43,710 (July 19, 2013). By July 2015, HUD finalized the new rule, realizing many of the proposed changes. See HUD Final Rule, Affirmatively Furthering Fair Housing (“AFFH Rule”), 80 Fed. Reg. 42,272 (July 16, 2015).
First, the AFFH Rule defined “affirmatively further fair housing” to mean “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity
4

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 5 of 17
based on protected characteristics.” 24 C.F.R. § 5.152. More specifically, HUD defined that phrase to mean “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.” Id.
Second, the AFFH Rule required grantees to integrate an Assessment of Fair Housing (“AFH”) into the planning documents, such as a Consolidated Plan, required by a grant. Id. § 5.154(a). AFHs were to be conducted “[u]sing the Assessment Tool prescribed by HUD,” id. § 5.154(d), which were the “forms or templates and the accompanying instructions provided by HUD that program participants must use to conduct and submit an AFH,” id. § 5.152. AFHs were intended to compel grantees to study local fair housing concerns, compliance with fair housing laws and regulations, and disparities with respect to, among other things, poverty and housing opportunities based on any protected characteristic. Id. § 5.154(d)(1)–(2). Additionally, grantees were to determine the factors contributing to, and goals to overcome, any identified fair housing disparities. Id. § 5.154(d)(3)–(4). That accumulated information would then inform the planning documents a grantee submitted to HUD. Id. § 5.154(d)(5). The rule obligated HUD to review completed AFHs for compliance with the regulations, id. § 5.162(a)(1), and to return any AFH that the agency deemed “inconsistent with fair housing or civil rights requirements,” id. § 5.162(b)(1), or that was “developed without the required community participation or the required consultation,” id. § 5.162(b)(1)(ii)(A). For any rejected AFH, HUD committed to providing program participants with reasons for non-acceptance and an opportunity to revise the AFH. Id. § 5.162(a)(1), (c). Approval of a Consolidated Plan would be contingent upon an
5

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 6 of 17
approved AFH. Id. § 5.162(d). The AFFH Rule set deadlines for program participants to complete initial AFHs that depended on the type of the program participant. Id. § 5.160(a). All deadlines were triggered by HUD’s publication of an Assessment Tool for use by that type of program participant. Id. § 5.160(a)(1)(ii). Grantees facing a distant initial deadline were, in the meantime, obligated to certify compliance with the AFFH requirement through the AI process. Id. § 5.151.
Third, the AFFH Rule enhanced the role of community participation in the development of both AFHs and Consolidated Plans. Id. § 5.158(a). To ensure “meaningful community participation” in each, program participants were instructed to “employ communications means designed to reach the broadest audience,” which could be accomplished through posting summaries of the relevant documents in “newspapers of general circulation,” and uploading them to the program participant’s website. Id. The AFFH Rule also reinvigorated the community participation requirements set out in 24 C.F.R. § § 91.105, 91.115, and 91.401, which required grantees, among other things, to consult with organizations, and to create a “citizen participation plan,” while preparing a Consolidated Plan and, following the AFFH Rule, an AFH. Id. § 91.105.
Fourth, the AFFH Rule tightened program participants’ record keeping duties. Id. § 5.168. For example, the rule compelled grantees to maintain records documenting “compliance with the consultation and community participation requirements” and “the actions the program participant has taken to affirmatively further fair housing.” Id. § 5.168(a)(2), (3). Inadequate recordkeeping had been one reason that HUD’s pre-2015 regime had not secured compliance with the AFFH requirement.
6

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 7 of 17
Fifth, the AFFH Rule revised many of the provisions governing Consolidated Plans to match those applicable to AFHs. See, e.g., id. § § 91.105 (citizen participation plans), 91.205 (housing and homeless needs assessment), 91.215 (strategic plan), 91.220 (action plan), 91.225 (certifications).
HUD published an Assessment Tool for local government program participants in December 2015, see HUD Notice, Affirmatively Furthering Fair Housing Assessment Tool: Announcement of Final Approved Document, 80 Fed. Reg. 81,840 (Dec. 31, 2015), initiating local government program participants’ duty to submit an AFH, 24 C.F.R. § 5.160(a)(1)(ii). HUD issued a new version of the same tool in 2017. HUD Notice, Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the Assessment Tool for Local Governments, 82 Fed. Reg. 4,388 (Jan. 13, 2017). HUD never fully implemented an Assessment Tool for any type of program participant other than local governments, which consequently were the only type of program participant ever required to complete an AFH.
According to a HUD notice issued in January 2018, the local government Assessment Tool and the AFH process had bugs. See HUD Notice, Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83 Fed. Reg. 683 (Jan. 5, 2018). The first 49 AFHs HUD received suggested that, “local government program participants need additional time and technical assistance from HUD to adjust to the new AFFH process and complete acceptable AFH submissions.” Id. at 685. At that time, HUD solicited comments for improving the Assessment Tool local governments had been using. Id.
In May 2018, however, HUD pulled the plug on Assessment Tools, withdrawing the 2017 version altogether because, the agency explained, “HUD has become aware of significant
7

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 8 of 17
deficiencies in the Tool impeding completion of meaningful assessments by program participants,” such that the Tool “is inadequate to accomplish its purpose of guiding program participants to produce meaningful AFHs.” LG2017 Withdrawal Notice, 83 Fed. Reg. at 23,922. Local governments’ difficulty with the Assessment Tool had been an unexpected drain on HUD’s resources. Id. at 23,925–96. The same day, in a separate notice, HUD announced that due to the withdrawal of the Assessment Tool, program participants would once again establish compliance with the AFFH requirement by conducting an AI. AI Reliance Notice, 83 Fed. Reg. at 23,927.
The two May 2018 notices did not completely jettison the AFFH Rule. Rather, the Rule’s definition of affirmatively furthering fair housing, see 24 C.F.R. § 5.152, and its recordkeeping requirements, see id. § 5.168, remained. Similarly, program participants were not relieved of the duty to “certify that they will affirmatively further fair housing when required by statutes and regulations governing HUD programs,” id. § 5.166, or certify that they “will take no action that is materially inconsistent with [their] obligation to affirmatively further fair housing,” id. § 91.225(a)(1), consistent with that phrase’s new definition. Moreover, even without the Assessment Tool, program participants still were beholden to the AFFH Rule’s heightened community participation standard for Consolidated Plans. See id. § 5.158. Program participants also retained access to data HUD used to implement the AFFH Rule. AI Reliance Notice, 83 Fed. Reg. at 23,927. Finally, HUD left open that it might return insufficient AI submissions and request additional documentation to confirm a program participant is taking steps to affirmatively further fair housing. Id. at 23,927–28.
8

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 9 of 17
B. The Instant Litigation The plaintiffs instituted this action on May 8, 2018, Compl., ECF No. 1, but amended the complaint on May 29, 2018 to challenge HUD’s two May 2018 notices, Am. Compl, ECF No. 18. In the plaintiffs’ view, the two notices constituted unlawful agency action because they effectively suspended the AFFH Rule without notice-and-comment procedures and because the withdrawal of the Assessment Tool was arbitrary and capricious. The plaintiffs moved for preliminary injunctive relief, pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1, and expedited summary judgment for an order that HUD rescind the May 2018 notices and reinstate the Assessment Tool for local governments. See Pls.’ Mot. Prelim. Injunc. & Exped. Summ. J. The defendants, on the other hand, moved, under Federal Rule of Civil Procedure 12(b), to dismiss the case entirely due to the plaintiffs’ lack standing. See Defs.’ MTD. The Court dismissed the action because no plaintiff had standing. As discussed in the accompanying opinion, the standing analysis applicable to an organization suing on its own behalf has a familiar framework: the organization must establish an injury, causation, and redressability. NFHA, 330 F. Supp. 3d at 40. The Supreme Court, in Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982), described a unique way in which an organization might be injured: when the challenged action “‘perceptibly impaired a non-abstract interest’ of the plaintiffs,” NFHA, 330 F. Supp. 3d at 44 (quoting Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir 2011)), forcing them to “use[] . . . resources to counteract that harm,” id. (quoting Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017)).
9

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 10 of 17
The plaintiffs argued that they had pleaded facts demonstrating that sort of injury. For perceptible impairment, the plaintiffs contended that HUD, by suspending the AFFH Rule, had deprived them of procedural protections that fostered their ability to promote policies affirmatively furthering fair housing, as is each plaintiff’s mission. Id. at 44–45. The plaintiffs, however, overstated the effect of the LG2017 Withdrawal Notice, which, while retiring the Assessment Tool, left other elements of the AFFH Rule in place so that the plaintiffs’ missiondrive work was not perceptibly impaired. Id. at 45–46. For example, the AFFH Rule’s more rigorous definition of “affirmatively furthering fair housing” and its heightened community engagement requirements still bound grantees submitting Consolidated Plans. Id. Although, following the LG2017 Withdrawal Notice, HUD would no longer review AFHs, HUD still would review Consolidated Plans for compliance with these new standards. Id. at 47. Beyond that, some of the withdrawn components of the AFFH Rule were not mandatory to begin with. Id.
Two cases—Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler (“Action Alliance”), 789 F.2d 931 (D.C. Cir. 1986) and People for the Ethical Treatment of Animals v. U.S. Department of Agriculture (“PETA”), 797 F.3d 1087 (D.C. Cir. 2015)—that, the plaintiffs maintained, demonstrated how the LG2017 Withdrawal Notice impaired each plaintiff’s mission were distinguishable. NFHA, 330 F. Supp. 3d at 48–49. Unlike the organizational plaintiff in Action Alliance, here “the plaintiffs’ daily operations . . . do not appear to be tangibly different in kind to those occurring before the withdrawal of the LG2017 Tool or to have been ‘perceptibly impaired’ by HUD’s withdrawal of the LG2017 Tool.” Id. at 48 (quoting League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016)). Nor did PETA help the plaintiffs because, unlike the plaintiff there, “HUD’s withdrawal of the LG2017
10

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 11 of 17
tool has not prevented the plaintiffs from being able to file complaints with HUD” and the plaintiffs “remain able to ‘continue to educate the public’ and to seek ‘investigatory information’ from program participants, rather than directly from HUD.” Id. at 49 (quoting PETA, 797 F.3d at 1095).
As for actions to counteract the purported harm, by the plaintiffs’ own account, their mission-driven activities were similar before and after HUD’s notices, even if the efficiency of their efforts has been hampered. Id. at 49. Further, review of the plaintiffs’ declarations did not show that the plaintiffs’ operational costs had increased. Id. at 49–50. Finally, in the absence of any harm attributable to the LG2017 Withdrawal Notice, the plaintiffs’ alleged diversion of money reflected only budgetary choices. Id. at 50.
Without a cognizable injury, the plaintiffs’ positions on causation and redressability, which were linked to their theory of injury, crumbled. Id. at 50–51. Independently, the plaintiffs’ arguments about causation and redressability were too speculative given that third parties, rather than the plaintiffs, were the objects of HUD’s challenged notices, introducing doubt as to whether ordering HUD to retract the notices would produce the plaintiffs’ desired result. Id. at 51–53.
The plaintiffs now seek to alter that judgment, pursuant to Federal Rule of Civil Procedure 59(e), and then to amend the complaint a second time, pursuant to Federal Rule of Civil Procedure 15(a). Pls.’ Mot. at 1. This motion is ripe for resolution. II. LEGAL STANDARD
Altering or amending a judgment under Federal Rule of Civil Procedure 59(e) “is an extraordinary remedy which should be used sparingly,” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller, Federal Practice &
11

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 12 of 17
Procedure § 2810.1 (3d ed. 2012)), as a “limited exception to the rule that judgments are to remain final,” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). A Court “may grant a motion to amend or alter a judgment under three circumstances only: (1) if there is an ‘intervening change of controlling law’; (2) if new evidence becomes available; or (3) if the judgment should be amended in order to ‘correct a clear error or prevent manifest injustice.’” Id. (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Whether to grant a Rule 59(e) motion is within the District Court’s discretion. Mohammadi, 782 F.3d at 17.
Absent a demonstrated intervening change of controlling law or new evidence, the law is well-settled that litigants may not use Rule 59(e) either to repeat unsuccessful arguments or to assert new but previously available arguments. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). As the Supreme Court observed, “Rule 59(e) permits a court to alter or amend a judgment, but it may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Id. (internal quotation marks and citation omitted); see also Messina v. Krakower, 439 F.3d 755, 759 (D.C. Cir. 2006) (finding no error in denying Rule 59(e) motion where “motion did nothing more than rely on the same arguments that [the movant] originally made”) (internal quotation marks and citation omitted).
When a Rule 59(e) motion seeks review of dismissal of a complaint, and is accompanied by a proposed amended complaint that purports to cure the deficiency prompting the original dismissal, the proper procedure requires the plaintiffs first to “satisfy Rule 59(e)’s more stringent standard,” before Federal Rule of Civil Procedure “15(a)’s liberal standard for granting leave to amend governs,” Firestone, 76 F.3d at 1208; see also Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015) (noting that “[a]s a technical matter, the District Court lacked authority to rule
12

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 13 of 17
on the merits of the Rule 15(a) motion because it did not modify its final judgment dismissing those cases.”). III. DISCUSSION
The plaintiffs do not contend that an intervening change of controlling law has occurred since the Court’s judgment or that new evidence has become available. Instead, the plaintiffs seek to amend the final judgement to “correct . . . errors and prevent manifest injustice.” Pls.’ Mem. at 8. The supposed error is that the judgment rests on “factual conclusions that are inconsistent with the complaint.” Id. at 9. According to the plaintiffs, the Court repeated that error several times over, such as by concluding “that the AI process now is materially different from the one followed prior to August 17, 2015,” id. at 9–10, “that the community participation requirements of the Consolidated Plans process could make up for the loss of such requirements in the now-suspended AFH Process,” id. at 10, that HUD’s “Consolidated Plan process in fact involves . . . meaningful review of compliance with AFFH obligations,” id. at 12, that the “Plaintiffs failed to allege the sort of diversion of resources to counteract HUD’s action that contribute to standing,” id. at 16, and “that jurisdictions will not comply” with the AFH process “such that Plaintiffs would not benefit from the reinstatement of the AFH process,” id. at 18.
The plaintiffs’ argument, however, attempts to recast as “factual conclusions” the Court’s review of the regulatory regime in place after HUD’s contested actions. Critically, the plaintiffs’ purported injury was losing procedural protections created under the AFFH Rule once HUD retired the Assessment Tool and AFH process. Those lost protections included “‘the requirements that jurisdictions solicit community participation,’ ‘respond to public comments, and undergo HUD review.’” NFHA, 330 F. Supp. 3d at 45 (quoting Pls.’ Opp’n Defs.’ MTD at 6, ECF No. 40). Each protection assisted the plaintiffs in realizing their missions. Yet, the Court
13

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 14 of 17
explained, the Assessment Tool and AFH process were just parts of the extensive reform brought on by the AFFH Rule. Even without the Assessment Tool and AFH, “certain key portions of the AFFH Rule remain active, including definitions of ‘affirmatively furthering fair housing,’ ‘community participation,’ and certain ‘data,’ which all apply when local governments submit their Consolidated Plans to HUD and certify their compliance with the AFFH requirement.” Id. Indeed, despite the May 2018 notices, “the community participation, consultation, and coordination requirements stated in § 5.158 remain active insofar as they require participants to ‘ensure that the AFH, the consolidated plan, and the PHA Plan and any plan incorporated therein are informed by meaningful community participation.’” NFHA, 330 F. Supp. 3d at 34 (quoting 24 C.F.R. § 5.158). Since the AFFH Rule’s community participation obligations still apply to Consolidated Plans, grantees still must consult with the broadest possible audience while developing those plans. Id. Additionally, HUD’s notices did not retreat from the definition of “affirmatively further fair housing” supplied by the AFFH Rule. Id. Nor have the AFFH Rule’s record keeping requirements been abandoned. Id.
After surveying the legal landscape following the May 2018 notices, the Court noted that “even without an Assessment Tool in place, program participants, including local government agencies, remain bound by key definitional, recordkeeping, and enhanced certification components of the AFFH Rule, and, importantly, to complying with the AFFH statutory requirement.” Id. at 35. Given all of the AFFH Rule that remained, “the fact that certain other obligations cited by the plaintiffs, including 24 C.F.R. § 5.154(d)(6) (public comments process) and § 5.162 (submission to, and review by, HUD of AFHs), are presently dormant does not translate to the dismantling and suspension of the AFFH Rule in a way that affects the plaintiffs’ mission-driven activities to a degree that is sufficient for showing organizational standing.” Id.
14

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 15 of 17
at 46. Accordingly, the plaintiffs did not demonstrate that HUD’s May 2018 notices impaired an identifiable interest of the plaintiffs, and thus failed to plead facts establishing the first piece of organizational injury. That judgment was not premised on factual conclusions but rather on a legal assessment of the existing regulatory regime after HUD’s contested actions.
Similarly, in the absence of harm attributable to HUD’s action, the plaintiffs’ alleged reallocation of funds—the second piece of organizational injury—was simply a budgetary choice rather than a step to counteract perceptible impairment of mission-drive activities. Id. at 50. Consequently, the plaintiffs had not pleaded facts to meet their burden for this aspect of organizational injury either.
As to causation and redressability, the Court explained that because “[t]he plaintiffs’ arguments for causation and redressability are entirely premised on the plaintiffs’ theory of injury in fact” and because “HUD’s withdrawal of the LG2017 Tool did not cause cognizable injury under the theory of organizational standing that the plaintiffs put forth, the plaintiffs’ causation and redressability arguments cannot hold.” Id. at 50–51. Here, too, the Court did not engage in fact finding.
At bottom, the changes in the regulatory landscape brought about by HUD’s withdrawal of the Assessment Tool were too inconsequential to establish that the plaintiff’s mission-driven activities were cognizably impaired. Without that showing, the plaintiffs could not meet their pleading burden for any component of standing.
Separately, the plaintiffs insist that the legal conclusion that some aspects of the AFFH Rule remain effective is clearly wrong because HUD stated in the AI Reliance Notice that, following withdrawal of the Assessment Tool, program participants must certify compliance with the AFFH requirement “in accordance with the requirements that existed prior to August
15

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 16 of 17

17, 2015.” Pls.’ Mem. at 9 (quoting AI Reliance Notice, 83 Fed. Reg. at 23,927). The plaintiffs ignore the next sentence of the same notice, which clarifies HUD’s directive. Any grantee, to be eligible, must “certify that it will affirmatively further fair housing, which means that it will conduct an . . . AI to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.” AI Reliance Notice, 83 Fed. Reg. at 23,927. While a grantee must again establish compliance with the AFFH requirement by conducting an AI, the AI Reliance Notice does not walk back changes to the AFFH requirement itself. Importantly, following the AFFH Rule, the AFFH requirement is more rigorous relative to its pre-2015 counterpart. Also, the AI Reliance Notice does not undermine the AFFH Rule’s more stringent record keeping requirement, which ensures that HUD will have access to the resources needed to investigate compliance with the remaining parts of the AFFH Rule, such as enhanced community participation obligations. For those reasons, continued application of certain pieces of the AFFH Rule fits with the AI Reliance Notice and, as HUD has acknowledged, “the revived AI process is not the same process operating prior to the AFFH Rule.” NFHA, 330 F. Supp. 3d at 35.
Finally, the plaintiffs again argue that the outcome here must follow those reached in Action Alliance and PETA. Pls.’ Mem. at 12–15. Yet, the Court’s prior opinion already addressed why neither case dictates the outcome that the plaintiffs prefer. NFHA, 330 F. Supp. 3d at 48–49. A motion under Rule 59(e) is not the vehicle for renewing arguments about the effect of those two cases as the rule “permits a court to alter or amend a judgment, but . . . may not be used to relitigate old matters . . . .” Exxon, 554 U.S. at 485, n.5 (internal quotation marks and citation omitted).1

1

After briefing on the plaintiffs’ Rule 59(e) motion was completed, another judge of this court issued an

opinion determining that, under the same D.C. Circuit precedent relied on in this case, an organizational plaintiff had

16

Case 1:18-cv-01076-BAH Document 55 Filed 08/26/19 Page 17 of 17
As the plaintiffs acknowledge, “a court cannot permit an amendment unless the plaintiff first satisfies Rule 59(e)’s more stringent standard for setting aside that judgment.” Pls.’ Mem. at 8 (quoting Ciralksy v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004)); see also Ciralsky, 355 F.3d at 673 (“Since the court declined to set aside the judgment under Rule 59(e), it properly concluded that [plaintiff’s] motion to amend under Rule 15(a) was moot.”). Since the plaintiffs’ Rule 59(e) motion is denied, the plaintiffs’ complaint remains dismissed with prejudice and their Rule 15(a)(2) motion for leave to amend is denied as moot. IV. CONCLUSION
A motion to amend the judgment is an “extraordinary remedy,” Mohammadi, 782 F.3d at 17, and plaintiffs seeking reconsideration based on clear error must, therefore, meet a very high bar. The plaintiffs’ disagreement with the Court’s decision does not clear that bar. The plaintiffs’ motion to amend the judgement is therefore denied. An order will be entered contemporaneously with this Memorandum Opinion.
Date: August 26, 2019
__________________________ BERYL A. HOWELL Chief Judge
standing to bring its lawsuit. See Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, 358 F. Supp. 3d 66, 77–84 (D.D.C. 2019) (citing Action Alliance and PETA as the relevant “binding precedent”). The plaintiffs furnished a copy of that opinion to the Court as supplemental authority for their Rule 59(e) motion, claiming that the decision “is relevant to the motion’s adjudication, as Plaintiffs contend that they have pleaded facts that, if taken as true, establish similar harm.” See Pls.’ Suppl. Authority Supp. Mot. Am. J & Leave Am. Compl. at 2, ECF No. 53. While the plaintiffs see similarities between National Women’s Law Center and this case, they make no effort to explain why that opinion is relevant to the resolution of a Rule 59(e) motion, which may be granted only if “there is an ‘intervening change of controlling law’; (2) if new evidence becomes available; or (3) if the judgment should be amended in order to ‘correct a clear error or prevent manifest injustice.’” Leidos, 881 F.3d at 217 (quoting Firestone, 76 F.3d at 1208). National Women’s Law Center does not advance the ball as to any of the three bases.
17