UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

IVY BROWN, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 10-2250 (PLF)

)

DISTRICT OF COLUMBIA, )

)

Defendant. )

____________________________________)

OPINION AND ORDER

Plaintiffs have offered in evidence Plaintiffs’ Exhibits 879 (“Pl. Ex. 879” or “OIG 

Report”), a September 2021 report prepared by the District of Columbia Office of the Inspector 

General (“Inspector General”). See Plaintiffs’ Brief Seeking the Admission of Certain Exhibits 

(“Pl. Brief”) [Dkt. No. 427] at 1-6; see also Plaintiffs’ Reply in Support of Their Brief Seeking 

the Admission of Certain Exhibits [Dkt. No. 431]. The District objects to the admission of the 

OIG Report, arguing that it is both irrelevant and inadmissible hearsay. See District’s Response 

to Plaintiffs’ Brief Seeking the Admission of Certain Exhibits [Dkt. No. 430] at 1-4. After 

careful consideration of the OIG Report and the parties’ written and oral arguments, the Court 

concludes that Plaintiffs’ Exhibit 879 should not be admitted in evidence.

I. THE OIG REPORT

 The OIG Report at issue is entitled “Department of Housing and Community 

Development [(“DHCD”)]: DHCD Did Not Effectively and Efficiently Use the Housing 

Production Trust Fund [(“HPTF”)] to Produce Affordable Housing Units for Extremely 
2

Low-Income [(“ELI”)] Households.” Pl. Ex. 879 at 1. The Inspector General issued the OIG 

Report after conducting an audit to assess the “production and preservation of affordable housing 

in the District of Columbia.” Id. at 3.1 In the OIG Report, the Inspector General makes multiple 

factual findings and offers twenty recommendations for DHCD to “identify and address 

noncompliance and control weaknesses.” Id. at 3-4, 12-22. For example, the OIG Report notes

that “DHCD missed its statutory goals for disbursing HPTF resources to produce and preserve 

affordable housing units for ELI households,” improperly allocating $81.7 million in HPTF 

resources to produce and preserve affordable housing units for very-low income (“VLI”) and 

low-income (“LI”) households instead of ELI households. Id. at 3-4, 14-15.2

 The OIG Report 

also notes that DHCD occasionally disbursed additional resources for housing projects without 

ensuring that a commensurate number of additional affordable housing units were built, that 

“monthly rents for some reserved HPTF units improperly exceeded the maximum allowable rent 

limits that DHCD published,” and that in some instances “reserved units set aside for one 

targeted population [e.g., LI households] were utilized by a different targeted population [e.g., 

ELI households].” See id. at 4, 15, 18-20. 

Plaintiffs argue that the OIG Report is relevant to the issues before the Court 

because the District of Columbia defends against plaintiffs’ claims “in part by raising housing 

issues” and because the OIG Report shows “that the District has failed to carry out its mandate 

requiring affordable housing for members of the Plaintiff class.” Pl. Brief at 3. To be sure, the 

1 Page number citations to the OIG Report refer to the pages of the PDF document 

provided to the Court.

2 “According to D.C. Code §§ 42-2802(b-1)(1)-(2), at least 50 percent of the funds 

disbursed from the HPTF during a fiscal year shall be used to fund the creation and preservation 

of affordable housing units for extremely low-income (ELI) households.” Pl. Ex. 879 at 3.
3

District has argued that both named plaintiffs, Ivy Brown and Larry McDonald, have been 

unable to transition to the community not through any fault of the District’s but rather because 

they have been unable to secure adequate, affordable housing. See District’s Trial Memorandum 

(“Def. Trial Memo.”) [Dkt. No. 412] at 2-3; see also Trial Transcript at 603:22-604:10, 719:24-

720:14, 932:6-19 (testimony of Director Laura Newland, explaining that lack of suitable housing 

may justify case closure for individuals receiving transition care assistance from the D.C. 

Department of Aging and Community Living). And, as plaintiffs note, the District has argued 

and “elicited testimony that Plaintiffs’ request for a minimum number of transitions in each of 

the next four years is unreasonable due to an inadequate supply of affordable housing.” Pl. Brief 

at 3; see, e.g., Trial Transcript at 3944:4-24. With that as the rationale for admitting the OIG 

Report in evidence, the first – and most basic – question is whether the OIG Report is relevant to 

the issues on remand.

II. RELEVANCE

A. Legal Standard

“‘Relevant evidence is admissible,’ unless an applicable authority provides 

otherwise, whereas ‘[i]rrelevant evidence is not admissible.’” Democracy Partners, LLC v. 

Project Veritas Action Fund, Civil Action No. 17-1047, 2021 WL 4785853, at *2 (D.D.C. 

Oct. 14, 2021) (alteration in original) (quoting FED. R. EVID. 402). “Evidence is relevant if: (a) it 

has any tendency to make a fact more or less probable than it would be without the evidence; and 

(b) the fact is of consequence in determining the action.” FED. R. EVID. 401. The proponent of

admitting an item of evidence has the initial burden of establishing relevance. See Dowling v. 

United States, 493 U.S. 342, 351 n.3 (1990); United States v. Gonzalez, 507 F. Supp. 3d 137, 

147 (D.D.C. 2020). A court “may exclude relevant evidence if its probative value is 
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substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” FED. R. EVID. 403. “[W]eighing any factors counseling against 

admissibility is a matter first for the district court’s sound judgment.” Bazarian Int’l Fin. 

Assocs., LLC v. Desarrollos Aerohotelco, C.A., 315 F. Supp. 3d 101, 128 (D.D.C. 2018) 

(alteration in original) (quoting Spring/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 

(2008)). The OIG Report‘s relevance therefore turns on whether it – or any portions of it –

proves a “fact of consequence” in the action. FED. R. EVID. 401; see also FED. R. EVID. 401 

advisory committee notes to 1972 proposed rules (“Relevancy is not an inherent characteristic of 

any item of evidence but exists only as a relation between an item of evidence and a matter 

properly provable in the case.”). 

The relevance inquiry is simplified here because the D.C. Circuit has instructed 

that the availability of affordable and accessible housing is a “fact of consequence.” In 

remanding the case to this Court, the court of appeals noted that “[t]he lack of housing is relevant 

to whether the pace of movement from the waiting list is ‘reasonable,’ which, in turn, is relevant 

to whether the District has an ‘adequate Olmstead Plan’ in place.” Brown v. District of 

Columbia, 928 F.3d 1070, 1087 (D.C. Cir. 2019). And as the District noted in its pretrial brief, 

see Def. Trial Memo at 14, the D.C. Circuit also provided that a finding of a lack of available 

housing would likely render plaintiffs’ third provision of their proposed injunction “so costly as 

to be unreasonable.” Brown v. District of Columbia, 928 F.3d at 1085 n.13; see also id. at 1078 

(describing the “fundamental alteration” defense). Thus, to the extent that the OIG Report – or 

any portion of it – tends to prove or disprove a lack of available housing in the District of 

Columbia, it is relevant.
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B. Certain Portions of the OIG Report Are Plainly Irrelevant to the Issues on Remand

A careful review of the OIG Report makes clear that the vast majority of its

findings and recommendations is wholly unrelated to the question before the Court on remand. 

For example, the OIG Report faults DHCD for failing to document certain decisionmaking and 

loan portfolio records, for failing to adopt policies and procedures for DHCD employees’ 

disclosure of potential conflicts of interest, for failing to compare proposed project cash flows to 

actual cash flows, for failing to implement periodic compliance reviews of disbursed loans and 

tenant income eligibility reviews, and for failing to timely collect on outstanding loans. See Pl. 

Ex. 879 at 12-13, 15-21. Although these findings may relate to DHCD’s internal processes and 

its proper administration of the HPTF, they do not make it more or less probable that there is a 

lack of affordable housing in the District of Columbia. 

Even the OIG Report’s major finding – that “DHCD missed its statutory goals for 

disbursing HPTF resources to produce and preserve affordable housing units for ELI 

households,” Pl. Ex. 879 at 3, 14-15 – is only tangentially related to a lack of housing available 

to class members. The HPTF is “a special revenue fund . . . that provides gap financing for 

projects affordable to low and moderate income households.” Housing Production Trust Fund, 

DEP’T OF HOUS. & CMTY. DEV., https://dhcd.dc.gov/page/housing-production-trust-fund (last 

visited Jan. 10, 2022). DHCD administers the HPTF to develop affordable housing in the 

District of Columbia. See 2021-2024 Olmstead Plan [Dkt. No. 406-1] at 11-12. Assuming that 

the findings in the OIG Report are accurate, the fact that DHCD disbursed fewer funds than 

statutorily required to develop housing opportunities for extremely low-income households does 

not help to prove that there is a lack of affordable housing or – most relevant – that there is less 

housing available to plaintiff class members. Indeed, the OIG Report does not speak to the 
6

actual quantity of affordable housing in the District of Columbia at all. Moreover, as the OIG 

Report notes, some ELI households may rent units that are not specifically “set aside” for ELI 

households by using housing vouchers. See Pl. Ex. 879 at 18-20. 

In sum, whether DHCD’s decision to fund some housing projects over others does 

not tend to establish that there is a lack of housing available to class members. Instead, the 

conclusion that there is a lack of available housing depends on a chain of inferences and 

assumptions, including (i) that there are no other new sources of affordable housing for class 

members; (ii) that ELI households are by and large precluded from accessing LI and VLI 

housing units funded by DHCD; and (iii) that the Inspector General’s audit of a limited period of 

time and a single agency is demonstrative of the general availability of affordable and accessible 

housing in the District of Columbia.

Given the above, the Court will exclude without further comment the following 

recommendations and their related findings because they are plainly irrelevant to the issues 

before the Court: Recommendations 1, 3, 4, 7-10, 12-14, and 16-20. See FED. R. EVID. 402. The 

Court now turns to those recommendations and related factual findings in the OIG Report that 

were discussed at trial as being arguably relevant to the issues on remand: Recommendations 2, 

5, 6, 11, and 15. See Trial Transcript at 4002:17-19, 4006:5-16. 

C. Arguably Relevant Portions of the OIG Report

Recommendation 2 provides: “Develop a plan to evaluate DHCD’s current 

selection criteria to better align selection criteria with statutory requirements to produce and 

preserve more units for extremely low-income households.” Pl. Ex. 879 at 14. This 

recommendation is based on the finding that DHCD did not exclusively follow the 

recommendation generated by the application of competitive selection criteria to project 
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proposals when choosing which projects to fund. See id. at 12-13 (noting that for the eight 

housing proposals selected for funding by DHCD in FY 2020, “DHCD selected low-scored 

proposals over higher-scored proposals” in each instance). As the OIG Report notes, this 

departure from the selection criteria was made by the final decisionmaker, who treated the 

“recommendations, scoring, and supporting documentation . . . [as] just some of the evaluative 

factors” used to make the final decision. Id. at 13. According to the OIG Report, “[a]s a result 

of DHCD not following its competitive process to select housing proposals, final housing 

proposal selections were not made based on objective criteria included in the RFP process 

designed to promote accountability and transparency.” Id. Rather than tending to prove a lack 

of affordable housing, this section of the OIG Report merely summarizes a dispute within DHCD 

about whether subjective or objective criteria are ultimately preferable to determine which 

affordable housing projects should be funded. It therefore is irrelevant to the issues on remand, 

and the Court will exclude Recommendation 2 and its related factual findings.

Recommendation 5 provides: “Develop procedures to request and obtain a 

required waiver from the Council [of the District of Columbia] prior to selecting and funding 

projects when proposals received do not meet statutory funding requirements.” Pl. Ex. 879 at 15. 

Recommendation 5 relates to the Inspector General’s major finding, namely, that DHCD did not 

fulfill its statutory obligations to disburse at least 50% of the Housing Production Trust Fund to 

produce housing opportunities for ELI households for four years. See id. at 14. DHCD 

defended this outcome by arguing that it chose not to approve certain project proposals that 

would have satisfied the statutory funding requirement because “[d]oing so would simply 

recreate failed housing policy of old by concentrating deeply affordable units in certain parts of 

the city.” Id. In the Court’s view, this recommendation and the factual findings upon which it is 
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based pertain to the funding of housing development projects, not to the related but attenuated 

issue of the availability of affordable housing in the District of Columbia. As discussed above, 

whether DHCD’s decision to fund certain development projects over others tends to prove that 

there is a general lack of available housing – let alone housing for class members – requires the 

Court to make several assumptions and inferences that are arguably specious. See supra

Section II.B. The Court therefore finds that Recommendation 5 and its underlying factual 

findings are irrelevant. 

Even assuming that Recommendation 5 and the related findings of fact are

relevant, however, their probative value is limited and is substantially outweighed by the danger 

of confusing the issues on remand in this case. See FED. R. EVID. 403. The D.C. Circuit has 

instructed that the availability of housing is relevant to the extent that it is a limiting factor for 

the pace of transitioning class members to the community and insofar as it would make 

plaintiffs’ requested accommodations “so costly as to be unreasonable.” Brown v. District of 

Columbia, 928 F.3d at 1085 n.13; see also id. at 1087. Yet plaintiffs seek to use the OIG Report 

to argue a different point: that the District does not have an effectively working Olmstead plan 

because the District has “fail[ed] to effectively and efficiently use the HPTF to produce 

affordable housing units for extremely low-income households[,] demonstrat[ing] a lack of 

commitment to utilize available resources to build or cause to be built affordable housing for the 

Plaintiff class.” Pl. Brief at 3. This argument is far afield from plaintiffs’ stated claim that the 

District has violated its obligations under Olmstead by failing to provide sufficient outreach and 

transition care assistance – including assistance in finding suitable housing – to nursing home 

residents. See Fourth Amended Complaint [Dkt. No. 162] at ¶ 135. Simply put, it would 

transform plaintiffs’ claim from one about services and support provided to individuals seeking 
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to transition out of nursing homes to one about DHCD’s administration of a housing 

development fund. The Court therefore will exclude Recommendation 5 and its corresponding 

factual findings. 

Recommendation 6 provides: “Develop policies and procedures to ensure 

additional affordable housing units are produced when project funding is increased.” Pl. Ex. 879 

at 15. This recommendation is based on a finding that in some instances “DHCD substantially 

increased the funding amount (after selection based on all submitted proposals) but did not 

comparably increase the number of units being produced or preserved by that proposal.” Id. In 

response, a DHCD official noted that the increase in cost was due to “construction cost increases 

between the application and loan closing dates,” suggesting that the increase of funding was 

necessary to maintain the number of affordable housing units initially proposed. Id. Thus, rather 

than tending to prove a lack of available housing in the District of Columbia, Recommendation 6 

instead seems to address the challenge DHCD faces to accurately estimate the costs of housing 

development when granting project proposals. It therefore is irrelevant and will be excluded.

Recommendation 11 provides: “Recoup from the landlord $114,528 per year in 

unauthorized excess rents.” Pl. Ex. 879 at 19. This recommendation is based on a finding that 

“monthly rents for some reserved HPTF units improperly exceeded the maximum allowable rent 

limits that DHCD published.” Id. at 18 (noting, as an example, that a landlord charged and 

collected higher rents on fourteen of nineteen affordable housing units in an apartment complex). 

Setting aside whether this finding is accurate, see id. at 18-19 (DHCD responding that the 

landlord correctly charged rent from the fourteen households, which were paying using tenantbased housing vouchers), Recommendation 11 pertains to DHCD’s oversight of affordable 
10

housing landlords who have received HPTF funds, not to a lack of affordable housing. It 

therefore is irrelevant and will be excluded.

Recommendation 15 provides: “Develop procedures to ensure units are reserved 

for specific targeted populations and are utilized by their intended population.” Pl. Ex. 879 at 20. 

This recommendation is in response to the Inspector General’s finding that “[l]andlords did not 

always follow annually published income and rent limits when approving tenant residency in 

reserved [HPTF] units.” Id. On occasion, this resulted in individuals from certain income 

classes using units produced for other income classes. Id. (noting instance where an ELI threeperson household resided in a unit reserved for a LI household). Again, this recommendation 

addresses DHCD’s oversight of landlords who operate HPTF-funded housing; it does not 

directly speak to the lack of affordable housing in the District of Columbia and therefore is 

irrelevant. The Court will exclude Recommendation 15 and its underlying factual finding.3

In summary, having canvassed the OIG Report, the Court concludes that the 

factual findings and recommendations are inadmissible under Rules 401, 402, and 403 of the 

Federal Rules of Evidence. The Court also concludes that the remainder of Plaintiffs’ Exhibit 

879, including the OIG Report’s executive summary, cover letter, and appendices are similarly 

inadmissible. The Court therefore will exclude all of Plaintiffs’ Exhibit 879 from evidence.4

3 If anything, Recommendation 15 tends to show that there is more housing 

available for ELI households because they are not limited to ELI housing units. But what little 

probative value Recommendation 15 may have to that end is substantially outweighed by the 

danger of confusing the issues in this case. See FED. R. EVID. 403. 

4 Because the Court finds that the OIG Report is inadmissible under Rules 401, 

402, and 403 of the Federal Rules of Evidence, it need not address the plaintiffs’ argument that 

the OIG Report is admissible under the hearsay exemption for party admissions or the public 

records exception. See FED. R. EVID. 801(d)(2)(D), 803(8)(C). 
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III. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that Plaintiffs’ Exhibit 879 is inadmissible and shall be excluded from 

evidence in this case. 

SO ORDERED.

________________________

PAUL L. FRIEDMAN

United States District Judge

DATE: January 12, 2022 

/s/