United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
three plaintiffs, an alliance of nonprofit organizations
dedicated to promoting fair housing opportunities plus two
organizations focused on housing opportunities in Texas,
previously sought a preliminary injunction and expedited
motion for summary judgment to require the defendant, the
U.S. Department of Housing and Urban Development
(“HUD”), to rescind administrative action taken
on May 23, 2018 suspending the use of an “Assessment
Tool, ” a version of which was first adopted by the
agency in December 2015. See Pls.' Mot. Prelim.
Injunc. & Exped. Summ. J., ECF No. 19; see also
HUD Notice, Affirmatively Furthering Fair Housing: Withdrawal
of the Assessment Tool for Local Governments (“LG2017
Withdrawal Notice”), 83 Fed. Reg. 23, 922 (May 23,
2018); HUD Notice, Affirmatively Furthering Fair Housing
(AFFH): Responsibility to Conduct Analysis of Impediments
(“AI Reliance Notice”), 83 Fed. Reg. 23, 927 (May
23, 2018). HUD had taken these steps after concluding, based
on operational experience, that the Assessment Tool was
unsustainably costly, see LG2017 Withdrawal Notice,
83 Fed. Reg. at 23, 925, and ultimately ineffective for its
purpose, namely: ensuring HUD grantees were affirmatively
furthering fair housing, id. at 23, 923-25. In this
litigation, HUD both opposed the plaintiffs' motions,
see Defs.' Opp'n Pls.' Mot. Summ. J.,
ECF No. 33, and moved to dismiss the action for lack of
subject matter jurisdiction because no plaintiff had
standing, see Defs.' Mot. Dismiss Pls.' Am.
Compl. (“Defs.' MTD”), ECF No. 38. The Court
granted HUD's motion to dismiss for lack of subject
matter jurisdiction and further held that the plaintiffs
would not have been entitled to the injunctive relief they
sought, even if they had standing. See Nat'l Fair
Hous. All. v. Carson (“NFHA”), 330
F.Supp.3d 14 (D.D.C. 2018).
with a proposed second amended complaint that would add to
the first amended complaint 46 new paragraphs and three new
sections, respectively titled “How the Consolidated
Plan Differs from the Assessment of Fair Housing, ”
Proposed Second Am. Compl., ¶¶ 79-85, ECF No. 48-1,
“The AI Process Under HUD's Notices, ”
id. ¶¶ 112-117, and “Significant
Provisions of the Rule That Are No. Longer in Effect, ”
id. ¶¶ 118-128, the plaintiffs seek,
pursuant to Federal Rules of Civil Procedure 59(e) and
15(a)(2), to set aside the prior decision and restart this
litigation. See Pls.' Mot. Am. J. & Leave
Am. Compl. (“Pls.' Mot.”), ECF No. 48;
Pls.' Mem. Supp. Mot. Am. J. & Leave Am. Compl.
(“Pls.' Mem.”), ECF No. 48. This time around,
rather than seeking expedited summary judgment, the
plaintiffs want to follow the regular course in an
Administrative Procedure Act case by requiring
“submission of HUD's entire administrative record,
” Pls.' Reply Supp. Mot. Am. J. & Leave Am.
Compl. (“Pls.' Reply”) at 6, ECF No. 51, so
that the claims may be resolved on “a fuller record,
” id. at 1. Thus, the plaintiffs' motion
asks the Court to amend its decision only with respect to
whether the plaintiffs have standing, but without challenging
the “denial of Plaintiffs' motion for a preliminary
injunction or expedited summary judgment.” See
Pls.' Mem. at 1 n.1. For the reasons set forth below, the
plaintiffs' motion is denied.
statutory, regulatory, and factual background for this case
were accounted for in the Court's opinion granting the
defendants' motion to dismiss. See NFHA, 330
F.Supp.3d at 24- 37. Still, the background bears repeating
here to some degree as context for why the plaintiffs'
Rule 59(e) motion is denied.
Statutory and Regulatory Framework
Fair Housing Act (“FHA”), 42 U.S.C. § 3601,
et seq., prohibits discrimination based on
“race, color, religion, sex, familial status, or
national origin” in the sale and rental of housing and
other residential real estate-related transactions.
Id. §§ 3604-05. That statute also requires
HUD to “administer the programs and activities relating
to housing and urban development in a manner affirmatively to
further the policies of” fair housing, id.
§ 3608(e)(5), known as the “affirmatively further
fair housing, ” or “AFFH, ” requirement.
The AFFH requirement imposes duties on HUD, Otero v. N.Y.
City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973),
which HUD meets, in part, through grants to State and local
qualify for funds under the largest of these grants, “a
grantee must submit a consolidated plan.” 24 C.F.R.
§ 570.302. A Consolidated Plan operates as (1)
“[a] planning document for the jurisdiction, which
builds on a participatory process among citizens,
organizations, businesses, and other stakeholders”; (2)
“[a] submission for federal funds under HUD's
formula grant programs for jurisdictions”; (3)
“[a] strategy to be followed in carrying out HUD
programs”; and (4) “[a] management tool for
assessing performance and tracking results.”
Id. § 91.1(b). Moreover, grantees, also known
as program participants, must certify that the grant will be
administered to comply with the AFFH requirement. 42 U.S.C.
§ 5304(b)(2) (local government grantees); id.
§ 5306(d)(7)(B) (State grantees); id. §
12705(b)(15) (State and local grantees); id. §
1437c-1(d)(16) (public housing agency grantees).
in the 1990s, HUD required grantees certifying compliance
with the AFFH requirement to undergo a process called
Analysis of Impediments in Fair Housing (“AI”).
See 24 C.F.R. § 91.225(a)(1) (1995). That
process called for grantees to analyze impediments to fair
housing within the relevant jurisdiction, respond
appropriately to those impediments, and maintain relevant
records. Id. Experience proved, however, that the AI
process failed to ensure compliance with the AFFH
requirement. See U.S. Gov't Accountability
Office, Rpt. No. GAO-10-905, Housing and Community Grants:
HUD Needs to Enhance Its Requirements and Oversight of
Jurisdictions' Fair Housing Plans (2010), available
at https://www.gao.gov/assets/320/311065.pdf; U.S.
Dep't of Housing and Urban Development, Office of Policy
Development and Research, Analysis of Impediments Study
(2009), available at
2013, HUD took a significant step toward overhauling the
ineffectual AI process by proposing a rule that would revamp
how HUD enforced grantees' compliance with the AFFH
requirement. See HUD Proposed Rule, Affirmatively
Furthering Fair Housing, 78 Fed. Reg. 43, 710 (July 19,
2013). By July 2015, HUD finalized the new rule, realizing
many of the proposed changes. See HUD Final Rule,
Affirmatively Furthering Fair Housing (“AFFH
Rule”), 80 Fed. Reg. 42, 272 (July 16, 2015).
the AFFH Rule defined “affirmatively further fair
housing” to mean “taking meaningful actions, in
addition to combating discrimination, that overcome patterns
of segregation and foster inclusive communities free from
barriers that restrict access to opportunity based on
protected characteristics.” 24 C.F.R. § 5.152.
More specifically, HUD defined that phrase to mean
“taking meaningful actions that, taken together,
address significant disparities in housing needs and in
access to opportunity, replacing segregated living patterns
with truly integrated and balanced living patterns,
transforming racially and ethnically concentrated areas of
poverty into areas of opportunity, and fostering and
maintaining compliance with civil rights and fair housing
the AFFH Rule required grantees to integrate an Assessment of
Fair Housing (“AFH”) into the planning documents,
such as a Consolidated Plan, required by a grant.
Id. § 5.154(a). AFHs were to be conducted
“[u]sing the Assessment Tool prescribed by HUD, ”
id. § 5.154(d), which were the “forms or
templates and the accompanying instructions provided by HUD
that program participants must use to conduct and submit an
AFH, ” id. § 5.152. AFHs were intended to
compel grantees to study local fair housing concerns,
compliance with fair housing laws and regulations, and
disparities with respect to, among other things, poverty and
housing opportunities based on any protected characteristic.
Id. § 5.154(d)(1)-(2). Additionally, grantees
were to determine the factors contributing to, and goals to
overcome, any identified fair housing disparities.
Id. § 5.154(d)(3)-(4). That accumulated
information would then inform the planning documents a
grantee submitted to HUD. Id. § 5.154(d)(5).
The rule obligated HUD to review completed AFHs for
compliance with the regulations, id. §
5.162(a)(1), and to return any AFH that the agency deemed
“inconsistent with fair housing or civil rights
requirements, ” id. § 5.162(b)(1), or
that was “developed without the required community
participation or the required consultation, ”
id. § 5.162(b)(1)(ii)(A). For any rejected AFH,
HUD committed to providing program participants with reasons
for non-acceptance and an opportunity to revise the AFH.
Id. § 5.162(a)(1), (c). Approval of a
Consolidated Plan would be contingent upon an approved AFH.
Id. § 5.162(d). The AFFH Rule set deadlines for
program participants to complete initial AFHs that depended
on the type of the program participant. Id. §
5.160(a). All deadlines were triggered by HUD's
publication of an Assessment Tool for use by that type of
program participant. Id. § 5.160(a)(1)(ii).
Grantees facing a distant initial deadline were, in the
meantime, obligated to certify compliance with the AFFH
requirement through the AI process. Id. §
the AFFH Rule enhanced the role of community participation in
the development of both AFHs and Consolidated Plans.
Id. § 5.158(a). To ensure “meaningful
community participation” in each, program participants
were instructed to “employ communications means
designed to reach the broadest audience, ” which could
be accomplished through posting summaries of the relevant
documents in “newspapers of general circulation,
” and uploading them to the program participant's
website. Id. The AFFH Rule also reinvigorated the
community participation requirements set out in 24 C.F.R.
§ § 91.105, 91.115, and 91.401, which required
grantees, among other things, to consult with organizations,
and to create a “citizen participation plan, ”
while preparing a Consolidated Plan and, following the AFFH
Rule, an AFH. Id. § 91.105.
the AFFH Rule tightened program participants' record
keeping duties. Id. § 5.168. For example, the
rule compelled grantees to maintain records documenting
“compliance with the consultation and community
participation requirements” and “the actions the
program participant has taken to affirmatively further fair
housing.” Id. § 5.168(a)(2), (3).