Complaint filed against HUD Secretary Ben Carson

Fair-housing advocates filed a lawsuit against the U.S. Department of Housing and Urban Development and HUD Secretary Ben Carson for suspending an Obama-era rule requiring communities to examine and address barriers to racial integration. https://www.washingtonpost.com/business/economy/hud-secretary-ben-carson-to-be-sued-for-suspending-obama-era-fair-housing-rule/2018/05/07/ef72db8a-523c-11e8-a551-5b648abe29ef_story.html

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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,

Civ. Action No. ______
1:18-cv-01076
COMPLAINT

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.

INTRODUCTION
1.

Fifty years ago, Congress enacted the Fair Housing Act, 42 U.S.C. ASSASS 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

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and Urban Development (HUD) aadminister the programs and activities relating to housing and
urban development in a manner affirmatively to further the policies ofa that Act. Id.
ASS 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 granteesamostly local and state government
entitiesato 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 Actas 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 HUDas supervision and with considerable community input), while giving those
jurisdictions flexibility to respond to local conditions. At the Ruleas core is the requirement that
jurisdictions prepare and submit for HUD review an Assessment of Fair Housing (AFH), a
document that includes both the jurisdictionas 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
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challenge HUDas suspension of the AFFH Ruleas requirements as a violation of the
Administrative Procedure Act (APA), 5 U.S.C. ASSASS 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 HUDas 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 documentacalled an Assessment of Fair Housing
(AFH)athat 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
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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 afailed socialist experimentsa such as amandated businga of
schoolchildren. After he became Secretary, HUD began cutting back implementation efforts. For
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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 Ruleas 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 followaa situation that had already proven to result in rampant noncompliance.
9.

HUD had no authority to suspend local governmentsa 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 HUDas 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.
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10.

Additionally, based on the sparse reasoning HUD provided in its three-page

notice, HUDas 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
acceptedaa 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 HUDas 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 Ruleas 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.

HUDas suspension of the AFFH Ruleas requirements is causing irreparable harm

to Plaintiffs and to others in communities across the country. Plaintiffs, organizations with
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purposes that include promoting fair housing, are already having their missions frustrated by
HUDas action and are having to divert scarce resources from other important activities to remedy
the effects of HUDas 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 attorneysa 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 Actas 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. NFHAas 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.
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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. ASS 1331 and 5 U.S.C.

21.

Venue is proper in this District under 28 U.S.C. ASS 1391(b) and 5 U.S.C. ASS 703

ASS 702.

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.

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FACTUAL ALLEGATIONS
A. Overview of the Fair Housing Actas 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 (aKerner Commissiona). In
1967, President Johnson charged the Kerner Commission with studying the causes of recent
urban unrest and recommending solutions. The Kerner Commissionas report, released in
February 1968, found a[p]ervasive discrimination and segregation in employment, education and
housing.a 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
a[f]ederal housing programs must be given a new thrust aimed at overcoming the prevailing
patterns of racial segregation.a 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
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neighborhoods with atruly integrated and balanced living patterns.a 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 aadminister the
programs and activities relating to housing and urban development in a manner affirmatively to
further the policies of this subchapter.a 42 U.S.C. ASS 3608(e)(5). Effective implementation of this
provision is central to the aFair Housing Actas continuing role in moving the Nation toward a
more integrated society.a Tex. Depat of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S.
Ct. 2507, 2525-26 (2015).
25.

As the Fair Housing Actas legislative history and subsequent case law make clear,

this duty to aaffirmatively further fair housinga 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. HUDas duty under the
Fair Housing Act requires it to ado more than simply refrain from discriminating,a 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 amust utilize some institutionalized methoda for assessing local compliance. Similarly,
in NAACP v. Secretary of Housing and Urban Development, the First Circuit held HUD liable
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for its failure to use its authority to aassist in ending discrimination and segregation, to the point
where the supply of genuinely open housing increases.a 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 HUDas annual budget. 1 In Fiscal
Year 2018, that amount is slated to rise to almost $5.5 billion. 2 By far the largest such programa
accounting for about two-thirds of the total, and reaching every corner of the United Statesais
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
a 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 HUDas 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
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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 aentitlement communities,a 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. ASS 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. ASSASS 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 communitiesa
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
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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. ASS 5304(b)(2); see also 24
C.F.R. ASS 570.601. But until the AFFH Ruleas 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.
ASS 3608(e)(5).
34.

In the mid-1990s, HUD finally promulgated regulations requiring each CDBG

grantee to periodically conduct a written aAnalysis of Impediments to Fair Housing Choicea
(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
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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 aappropriate
actionsa 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. ASS 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 Opportunityaa

body co-chaired by former HUD Secretaries Jack Kemp (a Republican) and Henry Cisneros (a
Democrat)areported: aThe current federal system for ensuring fair housing compliance by state
and local recipients of housing assistance has faileda|. 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.a 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 HUDas Regulations to Affirmatively Further Fair
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Housing 7 (2010), available at https://opportunityagenda.org/sites/default/files/201703/2010.03ReformingHUDRegulations.pdf (stating that a[a] range of housing experts, civil rights
groups, and former HUD officials have documented the inadequacy of the current AI process,a
and detailing that testimony).
38.

HUDas 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 acertificationa 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.

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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 aneeds
improvementa or apoor.a 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 Jurisdictionsa 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 HUDas 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 documentsaor, in one case,
an e-mail.

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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 alack time frames for implementing identified
recommendations,a making it impossible ato establish clear accountability.a GAO Report at 31.
Moreover, because HUD never established clear rules as to the most basic substantive and
procedural arequirementsa it meant to imposeae.g., a timeline on which AIs should be
completed, a process for completing them, the documentsa form and contentait 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 awas not well integrated into the planning efforts for
expenditure of funds made by HUD program participants,a and aHUD has not, in a systematic
manner, offered to its program participants the data in HUDas possession that may better help
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them frame their fair housing analysis.a 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 Ruleas 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 TrasviA+-a testified to Congress the next year: aThere, 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.a John D. TrasviA+-a, 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
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the AI regime, federal funding recipients did anot sufficiently promote the effective use of
limited public resources to affirmatively further fair housing.a 78 Fed. Reg. at 43,711.
51.

HUD found that it was required to change course in order to carry out its statutory

mission: aHUD and its grantees have a statutory duty to affirmatively further fair housing. This is
not an administrative requirement that can be waived by HUD.a 80 Fed. Reg. at 42,348
(emphasis added).
52.

HUD explained that it was not seeking to amandate specific outcomesa 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 Westchesteras 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
jurisdictionsa regular planning processes. HUD would review the adequacy of jurisdictionsa
plansabut 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 akey featuresa of the rule). HUD received 1,025 comments on the proposed
rule.

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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 ameaningful
actionsa 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 HUDas plans to issue guidance and technical assistance to
assist with the regulationas 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 ASS 5.154(d). Participants must use the AFH to identify local fair housing issues
and make concrete plans to address themaincluding measurable goals and metrics for
measuring successawith 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. ASS 5.154(d)(7).
56.

Under the AFFH Rule, a funding recipient amust certify that it will take

meaningful actions to further the goals identified in its AFH,a 24 C.F.R. ASS 91.225(a)(1), with
ameaningful actionsa defined as asignificant actions that are designed and can be reasonably
expected to achieve a material positive change that affirmatively furthers fair housing.a 24
C.F.R. ASS 5.152.
57.

In conjunction with this ameaningful actiona requirement, HUD for the first time

provided a regulatory definition of what it means to affirmatively further fair housing. HUD
defined aAFFHa as:
taking meaningful actions, in addition to combating discrimination, that overcome
patterns of segregation and foster inclusive communities free from barriers that
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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. ASS 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 Actas
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 ASS 5.154(d). HUD determined that aprogram participantsa use of an Assessment
Tool to create their AFH will help to ensure that AFHs are developed consistently and will
facilitate objective, consistent reviews.a 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).

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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. ASS 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 HUDas 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 ameaningful community participation,a including through public hearingsa
publicized by ameans designed to reach the broadest audienceaaand through public review of
an initial AFH draft. 24 C.F.R. ASS 5.158(a); see also 80 Fed Reg. at 42,300 (apublic input is a
fundamental and necessary component in the AFH processa). 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. ASS 91.100(a), (e)(1), as well as aany 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.a 24 C.F.R. ASS 91.100(e)(2). This consultation amust occur at various points in
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the fair housing planning process,a including not only with respect to the drafting of the AFH,
but also with respect to implementation of the AFHas goals in the Consolidated Plan. 24 C.F.R. ASS
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.
ASS 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 Ruleas rigorous requirements.
66.

The AFFH Rule requires HUD to review every Assessment of Fair Housing.

HUD must adetermine whether the program participant has met the requirements for providing
its analysis, assessment, and goal setting,a 24 C.F.R ASS 5.162(a). The agency may not aaccept 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,a 24 C.F.R. ASS 5.162(b). An AFH can be
asubstantially incompletea for, among other things, failure to meet the required community
participation and consultation requirements. 24 C.F.R. ASS 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
aprovide guidance on how the AFH should be revised in order to be accepted.a 24 C.F.R.
ASS 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. ASS
5.162(b)(1)(ii)(B).

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67.

The AFFH Rule establishes that each jurisdiction must complete and submit an

AFH every three to five yearsadepending on that jurisdictionas Consolidated Plan submission
scheduleaand 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. ASS 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 Planas substance must then reflect various components of the AFH. See 24 C.F.R. ASS
5.160(a)(1)(i); 80 Fed. Reg. at 42,287; see also 24 C.F.R. ASS 91.105(e)(1)(i) (requiring that
Consolidated Plan hearings include presentation of aproposed strategies and actions for
affirmatively furthering fair housing consistent with the AFHa); 24 C.F.R. ASS 91.215(a)(5)(i)
(CDBG participant must a[d]escribe how the priorities and specific objectives of the
jurisdictiona|will affirmatively further fair housing by setting forth strategies and actions
consistent with the goals and other elements identified in an AFHa).
69.

In order to ensure that HUDas 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 monthsa gap between
the submissions to ensure that, prior to submission of the Consolidated Plan, athe 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.a
80 Fed. Reg. at 42,311. Thus, HUD constructed a schedule that permits it to initially reject
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AFHsaand then work with jurisdictions to improve themaas 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. ASS 91.500(b); see also 80 Fed. Reg. at 42,299. An
accepted AFH is now a requirement for HUDas approval of the Consolidated Plan, 24 C.F.R. ASS
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 awill automatically result in the loss of the CDBG
funds to which the jurisdiction would otherwise be entitled.a 24 C.F.R. ASS 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. ASS 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.
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Those jurisdictions now must make fair housing considerationsaboth identifying fair housing
issues and making plans to overcome themapart of their core planning processes, and HUD will
regularly check their work and help them improve upon it.
C. Secretary Carsonas 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 amandatory businga 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 abased on the history
of failed socialist experiments in this country, entrusting the government to get it right can prove
downright dangerous.a 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.
Theyare not responding to people saying that thereas a problem, theyare 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 a you knowatelling mayors and commissioners that

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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 abelieve[s] in fair housinga but not in aextra
manipulation and cost.a Accordingly, he said about the AFFH Rule: aSo we just have to
reinterpret it, thatas all.a 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. HUDas 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.

HUDas 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 aReinterpreta Obama Housing
Discrimination Rule, Wash. Examiner, July 20, 2017, available at
https://www.washingtonexaminer.com/ben-carson-hud-will-reinterpret-obama-housingdiscrimination-rule
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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 Ruleas requirements was necessary

because, a[b]ased on initial reviews,a the agency concluded that aprogram participants need
additional time and technical assistance to adjust to the new AFFH process and complete AFH
submissions that can be accepted by HUD.a 83 Fed. Reg. at 684.
83.

HUD stated that many program participants were struggling to meet the

requirements of the AFFH rule, asuch as developing goals that could be reasonably expected to
result in meaningful actions[.]a 83 Fed. Reg. at 684-85. Further, HUD said, aprogram
participants struggled to develop metrics and milestones that would measure their progress as
they affirmatively further[] fair housing.a Id. at 685. The result of aprogram participantsa
frequent misunderstanding of how to set clear goals, metrics, and milestones,a HUD stated, was
often anon-accepted AFHs.a Id.

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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 aadditional technical assistance may result in program

participants better understanding their obligations under the AFFH Rule.a 83 Fed. Reg. at 685. It
further stated that aenhancing its technical assistancea would result in fewer resources expended
by program participants abecause they are more likely to submit an initial AFH that can be
accepted by HUD.a 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 aimproving technical assistance for collaborative AFHs will
enable collaborations to more efficiently use their resources to address fair housing issues that
cross jurisdictional boundaries.a 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, atake
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appropriate actions,a and then amaintain records reflecting the analysis and actions,a 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
Ruleas 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 anot sufficiently
promote the effective use of limited public resources to affirmatively further fair housinga).
88.

HUD told local governments they should acontinue to affirmatively further fair

housing as required by the Fair Housing Act. 42 U.S.C. 3608.a 83 Fed. Reg. at 685. It did not go
beyond this bare statutory citationanot even to instruct local governments to follow HUDas
implementing regulations (such as the definition of the AFFH term now found at 24 C.F.R.
ASS 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. ASSASS 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 processawhich HUD now has suspendedathey 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 ineffectiveaand
involves no assistance or enforcement by HUD. It has abdicated oversight and enforcement of
the AFFH statutory requirement for years to come.
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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. ASS 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. ASS 5.162(d) (aIf a program
participant does not have an accepted AFH, HUD will disapprove a consolidated plan.a).
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 Ruleas requirements, purportedly to

improve technical assistance, HUD has not taken any public actions aimed at improving its
technical assistance.
E. HUDas 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 Ruleas 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 Ruleas
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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 HUDas 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 assistanceait 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 HUDas 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, HUDas 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 agencyas 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.

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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 HUDas own failure to assist themaas well as suspicion that

HUD no longer has the will to enforce the AFFH Rule vigorouslyasome 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.

HUDas description of the record before it when suspending the AFFH Ruleas

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 Ruleas already evident benefits. Despite HUDas 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 jurisdictionsa 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 Actas requirements in exchange for
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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 notaby the Hidalgo County Regional Consortium (Hidalgo County) in
Texasais described further in the next section regarding harm to Plaintiffs. That submission was
deeply flawed and was properly rejected; HUDas suspension of the AFFH Rule ended the
process that would have improved it.
104.

Accordingly, what HUD characterizes as a failureathat 17 submissions were

initially rejectedais 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 ASSASS 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
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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 Ruleas 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 cityas 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.
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aeviction prevention projecta 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 Ruleas 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 publicas input in the AFH itself. For
example, Nashville, Tennesseeas 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

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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. HUDas Action Will Harm Plaintiffs If Not Enjoined
111.

Defendantsa 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. Defendantsa
suspension of the AFFH Ruleas core requirements is frustrating Plaintiffsa 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
Defendantsa 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
Defendantsa 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 Ruleas 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
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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 jurisdictionsa compliance.
114.

Since the AFFH Ruleas 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. HUDas suspension of the Ruleas requirements, if not
enjoined, will frustrate Texas Plaintiffsa efforts to ensure fair housing in the communities they
serve.
115.

The efforts of the Texas Plaintiffs, combined with the AFFH Ruleas protections,

have substantially increased the degree of public participation in each communityas AFH
process. The AFFH Ruleas 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
HUDas suspension of the Ruleas 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
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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 Ruleas
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
acolonias,a 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 Ruleas 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 Countyas 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 Ruleas requirements, Texas Plaintiffs spent thousands of

dollars in staff time, materials, and other resources to create the conditions under which fair
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housing finally could come to Hidalgo County. Just when those efforts seemed to be bearing
fruitawith HUD rejecting the Countyas initial submission and requiring it to prepare a revised
submission that reflects an effort to, finally, take its AFFH obligations seriouslyaHUDas 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.

HUDas 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 HUDas 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 HUDas 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
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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 Worthas 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 Worthas 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 Ruleas
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
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Plaintiffsa 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 HUDas action frustrate Texas Plaintiffsa 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 HUDas suspension of the AFH submission requirement and convince local government
program participants to nonetheless take their fair housing obligations seriously. Such actions
include:
aC/

Producing a video to educate the public (including affected grantees) about the impact of
the Rule and granteesa continuing obligation to affirmatively further fair housing
notwithstanding HUDas action;

aC/

Developing a fact sheet for advocates statewide on the effect of HUDas action;

aC/

Responding to continuing requests for information and resources;

aC/

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 HUDas suspension of the AFH submission requirement
on ongoing fair housing obligations; and

aC/

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 Ruleas core
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requirements are suspended. For example, Texas Housersa 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 timesaand requires the County to listen to and address themathese efforts are much
more inefficient, requiring far more of Texas Housersa time and achieving less tangible results.
125.

HUDas unlawful suspension of the AFH process has greatly undermined Texas

Plaintiffsa 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 HUDas
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 HUDas refusal to enforce them. They
consequently have had to cut back on important activities they would be pursuing if not for
HUDas suspension of the AFFH Ruleas 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 HUDas
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
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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 HUDas suspension of the AFFH Ruleas requirements

also limits the Texas Plaintiffsa 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 aheir property,a i.e., land that has been passed down
informally from generation to generation without recorded transactionsacomplicating, among
other things, eligibility for federal benefits for disaster recoveryaand 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 HUDas 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.
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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
HUDas unlawful decision to suspend the AFFH Ruleas requirements. To counteract the effects of
HUDas 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 Actas 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 HUDas Fair Housing Planning Guide had proven inadequate for that task. NFHAas
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
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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, HUDas progress in implementing the AFFH obligation. Its report, published in 2008,
concluded that a[t]he current federal system for ensuring fair housing compliance by state and
local recipients of housing assistance has faileda 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 HUDas 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.

HUDas action, if not enjoined, will diminish the benefits that NFHA derives from

all this work already done and will frustrate the accomplishment of NFHAas mission. NFHA
engages in a variety of activities aimed at advancing fair housing priorities around the country.
The AFFH Ruleas requirements, when in effect, make NFHAas 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
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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 NFHAas ability to achieve fair housing and help its members to do the same.
139.

HUDas abrupt suspension of the AFFH Ruleas requirements has required NFHA

to divert resources to educating and counseling its members, civil rights organizations, and
affordable housing stakeholders about HUDas action and how to achieve fair housing locally
under much more challenging circumstances. Such diversion will continue unless and until
HUDas action is enjoined.
140.

Because of NFHAas 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 HUDas notice and how to promote effective fair housing planning without the AFFH
Ruleas 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 NFHAas 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.

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143.

NFHA has engaged in and will need to continue to engage in individualized

counseling regarding HUDas 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 noticeas impact and the most
effective means for ensuring effective fair housing planning without the AFFH Ruleas
protections. NFHA has had to identify those areas most immediately affected by HUDas actions,
such as where local government program participants submitted AFHs prior to January 5 but did
not receive HUDas 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 Ruleas
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
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circumstances) and then monitoring compliance. Through this work, NFHA plans to blunt, as
best it can, the negative impact of HUDas 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 HUDas action, funding recipients that already were at work on

assessmentsamany of which would have been due not much more than a year from nowahave
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 a 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 awithout observance of procedure required by law.a 5 U.S.C ASS 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 submittedaincluding those already submittedaand either accept them or
work with jurisdictions to generate AFHs that meet the Ruleas 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.

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150.

Without notice-and-comment procedure, HUD has effectively suspended all the

subsidiary requirements of the AFH process, including the AFFH Ruleas 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 Ruleas 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 a Agency Action That is Arbitrary, Capricious or an Abuse
of Discretion
154.

The APA empowers this Court to ahold unlawful and set asidea agency action

that is aarbitrary, capricious, an abuse of discretion or not otherwise in accordance with law.a 5
U.S.C. ASS 706(2)(A).
155.

HUD stated that it was suspending the AFFH Ruleas 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

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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 Ruleas 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 programaa program that
they have voluntarily agreed to implement as a condition of accepting federal fundingadoes 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 Ruleas 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 Ruleas 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 Ruleas 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 processaas the Rule

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specifically contemplates and requires at regular intervals. The intention to revise the
Assessment Tool does not justify HUDas action.
160.

HUDas reasoning ignores key evidence that was before the agency and

improperly focuses on what the agency now perceives to be the Ruleas costs (such as increased
work) without mentioning the benefits flowing from the Rule.
161.

HUDas 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.

HUDas delay of the Rule is arbitrary, capricious, or an abuse of discretion, in

contravention of the APA.
Third Cause of Action
Administrative Procedure Act a Agency Action Not in Accordance with Law
164.

The APA empowers this Court to set aside an agency action that is anot in

accordance with law.a 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 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 granteesa 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.
ASSASS 3608(d), (e)(5). As HUD has stated, where a program participant ahas the ability to create
opportunities outside of the segregated, low-income areas but declines to do so,a 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.

HUDas effective suspension of the AFFH Rule violates the Fair Housing Act, in

contravention of the APA.

53

Case 1:18-cv-01076 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 HUDas 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 Ruleas 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 attorneysa 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 Document 1 Filed 05/08/18 Page 55 of 60

LAWYERSa 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 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 Document 1 Filed 05/08/18 Page 57 of 60

EXHIBIT

A

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 58 of 60
Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices
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) 435a
8363, wrightds@csr.nih.gov.
Name of Committee: Vascular and
Hematology Integrated Review Group,
Hypertension and Microcirculation Study
Section.
Date: February 8a9, 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, 301a408a
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 8a9, 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 20892a7892, 301a755a4335,
greg.shelness@nih.gov.
Name of Committee: Bioengineering
Sciences & Technologies Integrated Review
Group, Nanotechnology Study Section.
Date: February 8a9, 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, 301a806a8065, 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 8a9, 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, 301a537a9986,
macarthurlh@csr.nih.gov.
Name of Committee: Integrative,
Functional and Cognitive Neuroscience
Integrated Review Group, Auditory System
Study Section.
Date: February 8a9, 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 8a9, 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, 301a379a
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 8a9, 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, 301a435a
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 8a9, 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, 301a435a
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 8a9, 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

683

Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 4183,
MSC 7850, Bethesda, MD 20892, 301a435a
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, 301a435a
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, 93.393a93.396, 93.837a93.844,
93.846a93.878, 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. 2018a00052 Filed 1a4a18; 8:45 am]
BILLING CODE 4140a01aP

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FRa5173aNa15]

Affirmatively Furthering Fair Housing:
Extension of Deadline for Submission
of Assessment of Fair Housing for
Consolidated Plan Participants
Office of the Assistant
Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice.
AGENCY:

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:
2529a0054), 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.
SUMMARY:

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 59 of 60
684

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

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 20410a0001. 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 202a708a
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 800a877a8339 (this is

ADDRESSES:

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 202a402a
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 1a800a877a8339.
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 aaAssessment Tool.aa
HUDas 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 participantas 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:
2529a0054), 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. HUDas
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.
HUDas analysis identified several
reasons that merit a delay of AFH
submission deadlines, including
program participantsa 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 Document 1 Filed 05/08/18 Page 60 of 60
Federal Register / Vol. 83, No. 4 / Friday, January 5, 2018 / Notices
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
participantsa 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 participantsa
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
(AFFHaT) and the User Interface
(AFFHaUI). 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 3a5year 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 HUDas 2017 interim guidance for
additional information on collaboration,
specifically the Q&A captioned: aaHow can States
Collaborate with Local Governments or PHAs?aa.
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.

685

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 FarA+-A'as,
Assistant Secretary for Fair Housing and
Equal Opportunity.
[FR Doc. 2018a00106 Filed 1a4a18; 8:45 am]
BILLING CODE 4210a67aP

DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
[Docket No. BOEMa2017a0020]

Outer Continental Shelf Official
Protraction Diagrams MMAA104000
Bureau of Ocean Energy
Management, Interior.
ACTION: Availability of World Geodetic
System Datum of 1984 Outer
AGENCY: