UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE

1101 Vermont Ave NW, Suite 710

Washington, DC 20005,

TEXAS LOW INCOME HOUSING

INFORMATION SERVICE

1800 W 6th Street

Austin, TX 78703,

and

TEXAS APPLESEED

1609 Shoal Creek, Suite 201

Austin, TX 78701,

Plaintiffs,

BEN CARSON, Secretary of the U.S.

Department of Housing and Urban

Development, in his official capacity,

451 7th Street SW,

Washington, DC 20410,

and

U.S. DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT,

451 7th Street SW,

Washington, DC 20410,

Defendants.

Civ. Action No. ______

COMPLAINT

INTRODUCTION

1. Fifty years ago, Congress enacted the Fair Housing Act, 42 U.S.C. §§ 3601, et

seq. That Act is best known for barring a variety of forms of housing discrimination. Less

attention has been paid to its requirement that the Secretary of the U.S. Department of Housing

1:18-cv-01076

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and Urban Development (HUD) “administer the programs and activities relating to housing and

urban development in a manner affirmatively to further the policies of” that Act. Id.

§ 3608(e)(5). Although this Affirmatively Furthering Fair Housing (AFFH) requirement was of

great importance to Congress in enacting the Act, for decades, HUD inadequately enforced it.

The agency has permitted more than 1,200 grantees—mostly local and state government

entities—to collectively accept billions of dollars in federal housing funds annually without

requiring them to take meaningful steps to address racial segregation and other fair housing

problems that have long plagued their communities.

2. Recognizing that the AFFH requirement had not been adequately enforced, HUD

in 2015 promulgated through notice-and-comment rulemaking the AFFH Rule, a regulation

requiring covered cities and counties around the country to take meaningful action to address

longstanding segregation and otherwise effectuate the Fair Housing Act’s unrealized purposes.

The AFFH Rule creates a rigorous process to ensure that recipients of federal housing funds

identify local fair housing problems and then commit to taking concrete steps to correct them

(under HUD’s supervision and with considerable community input), while giving those

jurisdictions flexibility to respond to local conditions. At the Rule’s core is the requirement that

jurisdictions prepare and submit for HUD review an Assessment of Fair Housing (AFH), a

document that includes both the jurisdiction’s diagnosis of fair housing impediments and a plan

to overcome them.

3. In January 2018, HUD abruptly announced that it was suspending for years the

requirement that jurisdictions prepare AFHs and submit them for HUD review, effectively

suspending the Rule itself. Plaintiffs National Fair Housing Alliance (NFHA), Texas Low

Income Housing Information Service (Texas Housers), and Texas Appleseed bring this suit to

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challenge HUD’s suspension of the AFFH Rule’s requirements as a violation of the

Administrative Procedure Act (APA), 5 U.S.C. §§ 500, et seq.

4. Before it promulgated the AFFH Rule, HUD engaged in little enforcement of this

important provision of the Fair Housing Act, permitting its grantees to virtually ignore it. Even

after a number of federal courts articulated the breadth of HUD’s obligations under the AFFH

statutory provision, HUD required jurisdictions only to certify that, every few years, they

analyzed barriers to fair housing in their communities, made gestures in the direction of solving

them, and memorialized this analysis in their own files (never reviewed by HUD). As both HUD

and the Government Accountability Office found, putting local jurisdictions on the honor system

was ineffective. When pressed, many jurisdictions could not produce any documentation

supporting their certifications; others had prepared documents that made no concrete promises or

otherwise did not translate into action on the ground to address fair housing concerns. A False

Claims Act suit against Westchester County, New York revealed that the County had certified

compliance for years without ever assessing whether racial segregation was a problem, let alone

committing to addressing the barriers to integration that were well known to exist in

Westchester.

5. In response to these revelations, in 2009, HUD began an exhaustive, six-year

process of crafting a more effective AFFH enforcement regime, culminating in the promulgation

of the AFFH Rule in 2015. This Rule requires every covered jurisdiction to develop, submit for

HUD review, and implement a planning document—called an Assessment of Fair Housing

(AFH)—that includes concrete plans to address local fair housing issues. It requires jurisdictions

to provide wide notice and solicit public comment about fair housing problems in various

communities; to consult with fair housing groups and other interested entities; and to encourage

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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 “failed socialist experiments” such as “mandated busing” 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 Rule’s requirement that local

governments complete and submit AFHs. It delayed that requirement until the next submission

date for each grantee that occurs after October 31, 2020. Consequently, most recipients of federal

housing funds will not have to complete or submit an AFH until at least 2024. In the

announcement, HUD also stated that it would not review the AFHs that jurisdictions had already

submitted and would not require revision and resubmission of rejected AFHs. Put simply, HUD

abandoned the AFFH Rule and left local governments once more without regulatory supervision,

guidance as to what constitutes compliance with the statutory AFFH requirement, or any

required process to follow—a situation that had already proven to result in rampant non-

compliance.

9. HUD had no authority to suspend local governments’ and its own regulatory

duties in this manner. The AFFH Rule specifically provides that federal housing money may not

continue to flow to jurisdictions without an AFH that HUD has approved. Yet HUD’s action

permits exactly that result for most jurisdictions in the country. Meanwhile, by abandoning the

AFH process, HUD has effectively excused jurisdictions and itself from a host of non-

discretionary 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-and-

comment proceedings.

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

notice, HUD’s action was arbitrary and capricious. HUD stated that it based its decision on the

fact that it rejected 17 of the first 49 initially submitted AFHs. It said that complying with the

AFFH Rule was proving to require (unspecified amounts of) work for both HUD and for local

governments and that HUD could improve its technical assistance with the benefit of more time.

HUD did not explain how these facts support excusing local governments from further

compliance with the Rule, and they do not. The Rule is supposed to require that local

governments and HUD spend time ensuring that concrete action is taken to affirmatively further

fair housing rather than (as too often occurred in the past) paying only perfunctory attention to

that statutory requirement. HUD is supposed to reject inadequate AFHs. Indeed, most of the

jurisdictions whose AFHs were initially rejected soon submitted an improved AFH that HUD

accepted—a fact HUD did not acknowledge in the notice. Thus, what HUD characterizes as a

reason to suspend compliance with the Rule is, in fact, evidence that HUD’s enforcement of the

Rule was working exactly as intended.

11. By returning to the dysfunctional, pre-AFFH Rule regime that HUD itself

concluded did not work, HUD also is violating its statutory duty under the Fair Housing Act to

ensure that federal funds are used to affirmatively further fair housing. Decades of experience

have shown that, left to their own devices, local jurisdictions will simply pocket federal funds

and do little to further fair housing objectives. When suspending the AFFH Rule’s requirements,

HUD made no attempt to reconcile its action with its own prior finding in the administrative

record that the Rule is necessary or to explain why history will not repeat itself.

12. HUD’s suspension of the AFFH Rule’s requirements is causing irreparable harm

to Plaintiffs and to others in communities across the country. Plaintiffs, organizations with

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purposes that include promoting fair housing, are already having their missions frustrated by

HUD’s action and are having to divert scarce resources from other important activities to remedy

the effects of HUD’s action.

13. Plaintiffs bring this action seeking preliminary and permanent injunctive relief,

including a ruling that the January 2018 Notice constitutes unlawful agency action, an order that

HUD rescind the January 2018 Notice and take all necessary steps to implement and enforce the

AFFH Rule, and attorneys’ fees and costs and all other appropriate relief.

14. Fifty years after the passage of the Fair Housing Act, it is well past time that HUD

carries out its statutory duty to ensure that jurisdictions that take federal housing funds fulfill

their end of the bargain and affirmatively further fair housing. HUD failed for decades to require

local jurisdictions to take meaningful action with respect to racially segregated communities and

other obvious impediments to fair housing. It finally created a regulatory scheme to ensure that

jurisdictions receiving federal funds effectuate the Act’s requirements, but now has unlawfully

abandoned it. Judicial intervention is necessary to vindicate the rule of law and to bring fair

housing to communities that have been deprived of it for too long.

PARTIES

15. The National Fair Housing Alliance (NFHA) is a national, nonprofit, public

service organization incorporated under the laws of the Commonwealth of Virginia with its

principal place of business in Washington, DC. NFHA is a nationwide alliance of private,

nonprofit, fair housing organizations, including organizations in 28 states. NFHA’s mission is to

promote residential integration and combat discrimination in housing based on race, national

origin, disability, and other protected classes covered by federal, state, and local fair housing

laws.

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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. § 1331 and 5 U.S.C.

§ 702.

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

because the claims arose in the District, Defendants reside in this District, and a substantial part

of the events giving rise to this action occurred in the District.

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FACTUAL ALLEGATIONS

A. Overview of the Fair Housing Act’s AFFH Provisions and Historical Context

22. HUD sends billions of dollars in federal funds each year to state and local

jurisdictions, and those communities regularly certify both that they do not discriminate and that

they are taking affirmative steps to further fair housing. But until recently, the agency has largely

neglected to require those communities to do anything meaningful to fulfill those promises. HUD

thus failed, until the promulgation of the AFFH Rule at issue in this case, to give appropriate

force to a central part of the Fair Housing Act. That law does not simply bar overtly

discriminatory actions, but also requires that federal funds are spent in ways that ameliorate

(rather than exacerbate) long-standing patterns of residential segregation.

23. The AFFH requirement, like much else in the Fair Housing Act, arose from the

findings of the National Advisory Committee on Civil Disorders (“Kerner Commission”). In

1967, President Johnson charged the Kerner Commission with studying the causes of recent

urban unrest and recommending solutions. The Kerner Commission’s report, released in

February 1968, found “[p]ervasive discrimination and segregation in employment, education and

housing.” Report of the National Advisory Commission on Civil Disorders: Summary of Report,

at 9 (1968), https://www.hsdl.org/?view&did=35837. It noted that federal money was being

spent in ways that contributed to this segregation and recommended, among other things, that

“[f]ederal housing programs must be given a new thrust aimed at overcoming the prevailing

patterns of racial segregation.” Id. at 24.

24. When Congress enacted the Fair Housing Act weeks later, in the immediate

aftermath of the assassination of Dr. Martin Luther King, Jr. and in response to the

recommendations of the Kerner Commission, it sought to replace racially segregated

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neighborhoods with “truly integrated and balanced living patterns.” Trafficante v. Metro. Life

Ins. Co., 409 U.S. 205, 211 (1972) (citing 114 Cong. Rec. 3422, statement of FHA sponsor

Senator Walter Mondale). Consistent with this legislative purpose, in addition to barring

discrimination in housing, the FHA also imposed on HUD the obligation to “administer the

programs and activities relating to housing and urban development in a manner affirmatively to

further the policies of this subchapter.” 42 U.S.C. § 3608(e)(5). Effective implementation of this

provision is central to the “Fair Housing Act’s continuing role in moving the Nation toward a

more integrated society.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S.

Ct. 2507, 2525-26 (2015).

25. As the Fair Housing Act’s legislative history and subsequent case law make clear,

this duty to “affirmatively further fair housing” requires HUD to address segregation and other

barriers to fair housing not just in its own policies and practices, but also in its oversight of its

state and local jurisdictions and other entities that receive HUD grants. HUD’s duty under the

Fair Housing Act requires it to “do more than simply refrain from discriminating,” NAACP v.

Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987). Rather, HUD

also must ensure that the Fair Housing Act powers affirmative movement towards integration in

communities around the country, as Congress intended.

26. Since soon after the passage of the Fair Housing Act, federal courts have

recognized that HUD must adopt processes to ensure that local governments administering

federal housing programs abide by this congressional mandate. In Shannon v. U.S. Department

of Housing and Urban Development, 436 F.2d 809, 821 (3rd Cir. 1970), the court concluded that

HUD “must utilize some institutionalized method” for assessing local compliance. Similarly,

in NAACP v. Secretary of Housing and Urban Development, the First Circuit held HUD liable

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for its failure to use its authority to “assist in ending discrimination and segregation, to the point

where the supply of genuinely open housing increases.” 817 F.2d at 155.

27. In response to these and other rulings, HUD adopted only modest measures that

barely staunched the flow of federal funds to projects and entities that failed to further fair

housing objectives. For more than two decades, the agency neglected to adopt any system for

ensuring that fair housing concerns were taken seriously by the many cities, towns, and counties

that collectively receive billions of dollars every year through the Community Development

Block Grant (CDBG) and HOME Investment Partnership (HOME) programs, notwithstanding

that the Fair Housing Act obligates all such grantees to affirmatively further fair housing and

obligates HUD to ensure that they do.

28. In Fiscal Year 2017, HUD distributed $4.615 billion in federal grants devoted to

housing block grant programs, accounting for about a tenth of HUD’s annual budget.

In Fiscal

Year 2018, that amount is slated to rise to almost $5.5 billion.

By far the largest such program—

accounting for about two-thirds of the total, and reaching every corner of the United States—is

the CDBG program, which provides annual block grants to approximately 1,210 grantees, mostly

units of state and local government. Id.; see also Community Development Block Grant Program

– CDBG, U.S. Department of Housing & Urban Development (last accessed May 4, 2018),

http://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs.

29. The CDBG program, which began with the Housing and Community

Development Act of 1974, is one of HUD’s longest continuously running funding programs.

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.

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/notes-

from-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 “entitlement communities,” include the principal cities of

Metropolitan Statistical Areas (MSAs); other metropolitan cities with populations of at least

50,000; and qualified urban counties with populations of at least 200,000 (excluding the

population of entitled cities).

30. Entitlement communities have discretion to develop their own programs and

funding priorities, so long as they use CDBG funds consistent with certain statutory objectives,

such as benefitting low- and moderate-income persons. 42 U.S.C. § 5304(b)(3). They may, for

example, use CDBG funds to rehabilitate affordable housing; acquire land for new affordable

housing development; improve infrastructure and public facilities in low- and moderate-income

areas; or foster economic development that creates jobs for low- and moderate-income workers.

31. Each CDBG recipient must develop a document called a Consolidated Plan every

three to five years and submit it to HUD for review and approval. See 24 C.F.R. §§ 570.302,

91.200-91.230. The Consolidated Plan sets out community development priorities and multiyear

goals based on housing and community development needs, housing and economic market

conditions, and available resources. CDBG recipients also submit to HUD each year Annual

Action Plans, which summarize the specific actions and activities planned and the federal and

non-federal resources that will be used. HUD uses these submissions to monitor communities’

use of CDBG funds to achieve the goals of the CDBG program.

32. The majority of local governments participating in the CDBG program are on a

five-year cycle and renewed their Plans most recently in 2014 or 2015. Thus, they are due to

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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. § 5304(b)(2); see also 24

C.F.R. § 570.601. But until the AFFH Rule’s promulgation, they were not required to submit to

HUD any fair housing equivalent of the Consolidated Plan, i.e., a detailed explanation of planned

activities and how they will conform to the AFFH requirement. Until the mid-1990s, HUD

required its grantees merely to sign a bare certification that they complied with the 42 U.S.C.

§ 3608(e)(5).

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

grantee to periodically conduct a written “Analysis of Impediments to Fair Housing Choice”

(AI). Grantees were instructed to identify impediments to fair housing choice, take appropriate

actions to overcome the effects of any such impediments, and maintain records reflecting the

analyses and actions taken.

35. This system was virtually toothless. HUD did not require the grantees to submit

their AIs to HUD for review or approval, and the AIs themselves had no required format or

goals. HUD required grantees only to certify that they had conducted an AI and were taking

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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 “appropriate

actions” to overcome these impediments, and did not adopt a system for compliance review. At

best, AIs were paper exercises in the planning of fair housing policy that sat on municipal

shelves and never translated into actual policy; at worst, meaningful assessments of fair housing

problems and solutions never appeared, even on paper.

36. HUD conducted almost no oversight of this process. It did not review AIs and,

except for publishing a non-binding Fair Housing Planning Guide in 1996, did not provide any

technical assistance to grantees. It imposed no consequences when a grantee failed to produce or

update an AI or to take the actions described in an AI. With HUD failing to meaningfully

oversee its grantees in accordance with 42 U.S.C. § 3608, jurisdictions around the country

routinely skirted their AI obligations and falsely certified their compliance with even these weak

requirements.

37. In 2008, the National Commission on Fair Housing and Equal Opportunity—a

body co-chaired by former HUD Secretaries Jack Kemp (a Republican) and Henry Cisneros (a

Democrat)—reported: “The current federal system for ensuring fair housing compliance by state

and local recipients of housing assistance has failed…. HUD requires no evidence that anything

is actually being done as a condition of funding and it does not take adverse action if

jurisdictions are directly involved in discriminatory actions or fail to affirmatively further fair

housing.” National Commission on Fair Housing and Equal Opportunity, The Future of Fair

Housing: Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008),

available at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf.

See also The Opportunity Agenda, Reforming HUD’s Regulations to Affirmatively Further Fair

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Housing 7 (2010), available at https://opportunityagenda.org/sites/default/files/2017-

03/2010.03ReformingHUDRegulations.pdf (stating that “[a]

range of housing experts, civil rights

groups, and former HUD officials have documented the inadequacy of the current AI process,”

and detailing that testimony).

38. HUD’s countenancing of rampant non-compliance with the AFFH mandate came

to a head in a False Claims Act case brought against Westchester County, New York. In that

case, a whistleblower organization alleged that the County had defrauded the United States for

years by continually certifying to HUD its compliance with the Fair Housing Act, even as it was

deliberately concentrating affordable housing for families in a small number of heavily African-

American and Latino communities and distributing CDBG funds to overwhelmingly white

suburbs that refused to allow the development of affordable housing. United States ex rel. Anti-

Discrimination Ctr. of Metro N.Y., Inc., v. Westchester Cty., N.Y., 495 F. Supp. 2d 375 (S.D.N.Y.

2007); 668 F. Supp. 2d 548 (S.D.N.Y. 2009)

39. The Westchester case publicly exposed the failings of the AI process and the

annual “certification” process. On summary judgment, the district court found that the County

could produce no evidence that it even evaluated race-based impediments to fair housing, let

alone did anything about them, while annually certifying compliance and accepting more than

$50 million in federal housing funds during the relevant years. 668 F. Supp. 2d at 562.

40. Following the Westchester decisions, HUD took a closer look at what its grantees

were doing in exchange for billions of dollars of federal funds every year. It engaged in a series

of hearings, listening sessions, and internal reports, and it concluded that the AI process was not

working.

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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 “needs

improvement” or “poor.” HUD found that only 20 percent of AIs committed jurisdictions to

doing anything on a set timeframe. See U.S. Department of Housing and Urban Development,

Office of Policy Development and Research, Analysis of Impediments Study (2009).

42. At the same time, the Government Accountability Office (GAO) was undertaking

a detailed review of the AI process. It released its conclusions in a 2010 report to Congress,

GAO-10-905, Housing and Community Grants: HUD Needs to Enhance Its Requirements and

Oversight of Jurisdictions’ Fair Housing Plans (2010), available at

https://www.gao.gov/assets/320/311065.pdf (GAO Report).

43. The GAO Report highlighted the weaknesses of the AI process and urged HUD to

reform the system of fair housing oversight of HUD grantees. The report found that many

jurisdictions, lacking any oversight or accountability, failed to make minimal efforts to comply

even with the lax requirements of the AI system.

44. For example, the GAO found that 29 percent of jurisdictions had not completed

an AI within the last five years, as recommended by HUD’s Fair Housing Planning Guide, while

11 percent had not done so within the last 10 years; for another 6 percent the date of completion

could not be determined. Since the purpose of an AI was to be a planning document for a 5-year

period, these jurisdictions effectively had no operative AI at all. Many jurisdictions could not

produce a document labeled an AI, and others produced perfunctory documents—or, in one case,

an e-mail.

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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 “lack time frames for implementing identified

recommendations,” making it impossible “to establish clear accountability.” GAO Report at 31.

Moreover, because HUD never established clear rules as to the most basic substantive and

procedural “requirements” it meant to impose—e.g., a timeline on which AIs should be

completed, a process for completing them, the documents’ form and content—it was virtually

impossible for HUD field offices to participate meaningfully in the process and ensure

compliance even if they wanted to do so. Id. at 25.

46. By the time the GAO Report was issued, HUD had begun the process of

formulating the AFFH Rule, and the GAO Report contained specific recommendations that the

Rule largely incorporated. In particular, the GAO Report recommended that HUD establish

standards and a common format for grantees to use in their planning documents; that grantees be

required to include time frames for completing promised actions; and that grantees be required to

submit these documents to HUD for comprehensive review on a regular basis. GAO Report at

32-33.

47. Based on the GAO Report, a vast record of rulemaking comments, and its own

experience, HUD concluded that the AI process did not work. That was for myriad reasons;

among other things, the AI drafting process “was not well integrated into the planning efforts for

expenditure of funds made by HUD program participants,” and “HUD has not, in a systematic

manner, offered to its program participants the data in HUD’s possession that may better help

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them frame their fair housing analysis.” Final Rule: Affirmatively Furthering Fair Housing, 80

Fed. Reg. 42,272, 42,275 (July 16, 2015) (AFFH Rule).

B. HUD AFFH Rulemaking

48. In 2009, in response to the growing and uncontroverted evidence that it was

failing to ensure that federal housing dollars were spent in ways consistent with the AFFH

obligation, HUD began formulating a better system. The regulation that HUD formally proposed

in 2013 and promulgated as a final rule in 2015 was the product of a comprehensive process of

outreach and study that informed the Rule’s eventual design. 80 Fed. Reg. 42,272; GAO Report

at 29.

49. For example, in July 2009, HUD held a listening conference in which more than

600 people participated, both in person and remotely. As Assistant Secretary for Fair Housing

John Trasviña testified to Congress the next year: “There, fair housing and civil rights groups,

mayors, counties, and states all voiced their desire for HUD to amend its regulations to provide

more concrete, specific information about how to develop a meaningful plan for affirmatively

furthering fair housing.” John D. Trasviña, Assistant Secretary for Fair Housing and Equal

Opportunity, U.S. Department of Housing and Urban Development, Statement before the

Subcommittee on Housing and Community Opportunity, Committee on Financial Services, U.S.

House of Representatives, Hearing on H.R. 476 Housing Fairness Act of 2009 (Jan. 20, 2010),

available at https://financialservices.house.gov/media/file/hearings/111/trasvina_-_hud.pdf.

50. After several years of gathering information, HUD published its proposed AFFH

Rule on July 19, 2013. 78 Fed. Reg. 43,710 (July 19, 2013). It acknowledged that the problems

revealed by the GAO, advocates, stakeholders, and program participants regarding the existing

AI process required it to develop a new regime for AFFH enforcement. It determined that, under

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the AI regime, federal funding recipients did “not sufficiently promote the effective use of

limited public resources to affirmatively further fair housing.” 78 Fed. Reg. at 43,711.

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

mission: “HUD and its grantees have a statutory duty to affirmatively further fair housing. This is

not an administrative requirement that can be waived by HUD.” 80 Fed. Reg. at 42,348

(emphasis added).

52. HUD explained that it was not seeking to “mandate specific outcomes” for

jurisdictions. 78 Fed. Reg. at 43,711. Rather, the AFFH Rule would structure decision-making

processes in ways that ensured that local fair housing concerns would be heard, considered, and

ultimately acted upon on a regular basis, with HUD review of the resulting product providing

accountability. It would no longer be possible for jurisdictions to fail to produce an AI

altogether, or to produce one that entirely ignored fair housing concerns (as Westchester’s had),

without HUD detecting and remedying the violation.

53. To accomplish this, the AFFH Rule introduced the Assessment of Fair Housing,

or AFH, as the core planning and oversight tool that integrates fair housing considerations into

jurisdictions’ regular planning processes. HUD would review the adequacy of jurisdictions’

plans—but it would also assist them, in a variety of ways, rather than leaving them at sea as to

how to comply with their obligation to affirmatively further fair housing. HUD committed to

providing participants with national data and meaningful direction, including clear standards to

follow and ample technical support. 78 Fed. Reg. at 43,714; see also 80 Fed. Reg. at 42,275

(reiterating these “key features” of the rule). HUD received 1,025 comments on the proposed

rule.

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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 “meaningful

actions” to further fair housing. The final rule also provided for a staggered AFH submission

schedule, to reduce the burden on HUD and program participants and give smaller participants

extra time to prepare. It described HUD’s plans to issue guidance and technical assistance to

assist with the regulation’s rollout.

55. The AFFH Rule provides for a consistent template (the AFH) that participants

must complete, engage the public in reviewing, and submit to HUD for oversight at regular

intervals. 24 C.F.R § 5.154(d). Participants must use the AFH to identify local fair housing issues

and make concrete plans to address them—including measurable goals and metrics for

measuring success—with public input and HUD review. While the initial AFHs are an exercise

in goal-setting, subsequent AFHs must review progress toward these goals, such that the process

provides a cycle of accountability. 24 C.F.R. § 5.154(d)(7).

56. Under the AFFH Rule, a funding recipient “must certify that it will take

meaningful actions to further the goals identified in its AFH,” 24 C.F.R. § 91.225(a)(1), with

“meaningful actions” defined as “significant actions that are designed and can be reasonably

expected to achieve a material positive change that affirmatively furthers fair housing.” 24

C.F.R. § 5.152.

57. In conjunction with this “meaningful action” requirement, HUD for the first time

provided a regulatory definition of what it means to affirmatively further fair housing. HUD

defined “AFFH” as:

taking meaningful actions, in addition to combating discrimination, that overcome

patterns of segregation and foster inclusive communities free from barriers that

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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. § 5.152.

58. Thus, the regulation guarantees performance of the statutory duty to affirmatively

further fair housing by requiring meaningful steps towards achieving the Fair Housing Act’s

ambitious goals. Those steps may vary widely from jurisdiction to jurisdiction, depending on

local conditions and needs, but the constant is that every jurisdiction must take meaningful steps

towards addressing its own barriers to fair housing.

59. Following its promulgation of the AFFH Rule, HUD issued an Assessment Tool

(as required by the rule) to standardize the AFH process. The Assessment Tool was separately

subject to public notice and comment under the Paperwork Reduction Act and is to be updated at

regular intervals. In preparing their AFHs, local governments must use the Assessment Tool,

which organizes all the required elements of an AFH into a template for simpler preparation and

review. 24 CFR § 5.154(d). HUD determined that “program participants’ use of an Assessment

Tool to create their AFH will help to ensure that AFHs are developed consistently and will

facilitate objective, consistent reviews.” 80 Fed. Reg. at 42,311.

60. After several rounds of comments and revisions, the current version of the

Assessment Tool went into effect in January 2017 and is slated to remain in effect until January

31, 2020. Affirmatively Furthering Fair Housing: Announcement of Renewal of Approval of the

Assessment Tool for Local Governments, 82 Fed. Reg. 4,388 (Jan. 13. 2017).

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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. § 5.154(d)(2), (3).

62. To facilitate this detailed analysis, the Rule provides for HUD to publicly issue a

variety of maps and provide data customized for each participant. Much of this information has

been posted on HUD’s website. For each participating jurisdiction, a user can see patterns of

residential segregation by race, national origin, and disability; the location of affordable housing;

and details such as transit, job proximity, and school proficiency. These maps and data are

available at https://egis.hud.gov/affht/.

63. The AFFH Rule provides that, in preparing the AFH, the funding recipient must

provide for “meaningful community participation,” including through public hearings—

publicized by “means designed to reach the broadest audience”—and through public review of

an initial AFH draft. 24 C.F.R. § 5.158(a); see also 80 Fed Reg. at 42,300 (“public input is a

fundamental and necessary component in the AFH process”). The jurisdiction also must consult

with a number of designated community organizations, including but not limited to fair housing

organizations, see 24 C.F.R. § 91.100(a), (e)(1), as well as “any organizations that have relevant

knowledge or data to inform the AFH and that are sufficiently independent and representative to

provide meaningful feedback to a jurisdiction on the AFH, the consolidated plan, and their

implementation.” 24 C.F.R. § 91.100(e)(2). This consultation “must occur at various points in

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the fair housing planning process,” including not only with respect to the drafting of the AFH,

but also with respect to implementation of the AFH’s goals in the Consolidated Plan. 24 C.F.R. §

91.100(e)(3).

64. The completed AFH must include a summary of comments received, and

explanations as to why any recommended changes to the draft AFH were not accepted. 24 C.F.R.

§ 5.154(d)(6).

65. Once a funding recipient has prepared and submitted an AFH, the Rule

specifically contemplates and requires an iterative process between HUD and funding recipients.

It calls on HUD not simply to pass judgment on AFHs, but to help funding recipients improve

them and meet the AFFH Rule’s rigorous requirements.

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

HUD must “determine whether the program participant has met the requirements for providing

its analysis, assessment, and goal setting,” 24 C.F.R § 5.162(a). The agency may not “accept an

AFH if HUD finds that the AFH or a portion of the AFH is inconsistent with fair housing or civil

rights requirements or is substantially incomplete,” 24 C.F.R. § 5.162(b). An AFH can be

“substantially incomplete” for, among other things, failure to meet the required community

participation and consultation requirements. 24 C.F.R. § 5.162(b)(1)(ii)(A). If HUD does not

accept an Assessment, it must specify the reasons the Assessment has not been accepted and

“provide guidance on how the AFH should be revised in order to be accepted.” 24 C.F.R.

§ 5.162(b)(2). If an Assessment fails to meet any required element, HUD must deem it

incomplete and require revision, even if other elements are complete. 24 C.F.R. §

5.162(b)(1)(ii)(B).

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

AFH every three to five years—depending on that jurisdiction’s Consolidated Plan submission

schedule—and do so in a way that integrates fair housing concerns into the Consolidated Plan

that CDBG recipients already prepare on a similar schedule. 24 C.F.R. § 5.160.

68. Each CDBG recipient must complete and submit an AFH ahead of its

Consolidated Plan schedule, so that financial and other commitments to implement the AFHs can

be included in the next Consolidated Plan. Both the process of developing the Consolidated Plan

and the Plan’s substance must then reflect various components of the AFH. See 24 C.F.R. §

5.160(a)(1)(i); 80 Fed. Reg. at 42,287; see also 24 C.F.R. § 91.105(e)(1)(i) (requiring that

Consolidated Plan hearings include presentation of “proposed strategies and actions for

affirmatively furthering fair housing consistent with the AFH”); 24 C.F.R. § 91.215(a)(5)(i)

(CDBG participant must “[d]escribe how the priorities and specific objectives of the

jurisdiction…will affirmatively further fair housing by setting forth strategies and actions

consistent with the goals and other elements identified in an AFH”).

69. In order to ensure that HUD’s review could be rigorous, HUD considered and

rejected a proposal that a funding recipient submit an AFH at the same time as its proposed

Consolidated Plan. HUD reasoned that it was necessary to build in several months’ gap between

the submissions to ensure that, prior to submission of the Consolidated Plan, “the affected

communities would have already had the opportunity to review and comment on the AFH, HUD

will have the opportunity to identify any deficiencies in the AFH, and the program participant

will have the opportunity to correct any deficiencies, prior to incorporation of the AFH into the

consolidated plan or PHA Plan, such that funding to program participants will not be delayed.”

80 Fed. Reg. at 42,311. Thus, HUD constructed a schedule that permits it to initially reject

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AFHs—and then work with jurisdictions to improve them—as part of the routine process rather

than as extraordinary event that seriously endangers federal funding.

70. The Consolidated Plan that follows must include fair housing elements that have

been approved in the AFH. See 24 C.F.R. § 91.500(b); see also 80 Fed. Reg. at 42,299. An

accepted AFH is now a requirement for HUD’s approval of the Consolidated Plan, 24 C.F.R. §

5.162(d), which in turn is a prerequisite for funding by the CDBG program. The AFFH Rule

gives HUD only limited authority to excuse non-compliance with these requirements; if any

jurisdiction fails to submit a Consolidated Plan that includes an approved AFH by August 16 of

the federal fiscal year in question, that failure “will automatically result in the loss of the CDBG

funds to which the jurisdiction would otherwise be entitled.” 24 C.F.R. § 5.162(d)(1) (emphasis

added).

71. HUD set the dates for submission and review of AFHs on a staggered schedule,

such that only a minority of jurisdictions must submit AFHs prior to 2019. The AFFH Rule

requires jurisdictions to submit their first AFH by 270 calendar days before the beginning of

their next CDBG program year. 24 C.F.R. § 5.160(a)(1). For most CDBG jurisdictions, this

schedule requires that jurisdictions submit AFHs between 2019 and early October 2020.

Additionally, HUD postponed until 2019 the date by which any jurisdiction receiving an award

of $500,000 or less was required to make a submission. See 81 Fed. Reg. 73,129 (Oct. 24, 2016).

Thus, HUD structured the schedule of submissions such that 2017 and 2018 would be used as

learning years in which both HUD and early-submitting jurisdictions (none of which are small

jurisdictions) gained expertise with the process.

72. The AFFH Rule makes concrete what had been a largely theoretical statutory

obligation to affirmatively further fair housing for jurisdictions that accept federal housing funds.

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Those jurisdictions now must make fair housing considerations—both identifying fair housing

issues and making plans to overcome them—part of their core planning processes, and HUD will

regularly check their work and help them improve upon it.

C. Secretary Carson’s Public Opposition to the AFFH Rule

73. Secretary Carson has been outspoken in opposing the AFFH Rule, before and

after he was nominated to his position.

74. In an article published in 2015, Secretary Carson criticized the AFFH Rule at

length, equating it to “mandatory busing” of schoolchildren. Ben S. Carson, Experimenting With

Failed Socialism Again, Wash. Times, July 23, 2015, available at

https://www.washingtontimes.com/news/2015/jul/23/ben-carson-obamas-housing-rules-try-to-

accomplish-/. He condemned both the AFFH Rule and a Supreme Court decision recognizing

that the Fair Housing Act bars disparate impact discrimination, stating that “based on the history

of failed socialist experiments in this country, entrusting the government to get it right can prove

downright dangerous.” Id.

75. In his confirmation hearing, Secretary Carson reiterated his hostility to the AFFH

Rule. In response to a question from Senator Sherrod Brown regarding his 2015 article, Secretary

Carson said:

As you probably know, that Act says that we want people who are receiving HUD

grants to look around and see if they find anything that looks like discrimination

and then we want them to come up with a solution on how to solve the problem.

They’re not responding to people saying that there’s a problem, they’re saying go

and look for a problem and then give us a solution. And what I believe to be the

case is we have people sitting around their desks in Washington D.C. deciding on

how things should be done – you know—telling mayors and commissioners that

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you need to build this place right here and you need to put these kinds of people at

it.

76. In an interview after being confirmed, Secretary Carson said in response to a

question about these prior statements that he “believe[s] in fair housing” but not in “extra

manipulation and cost.” Accordingly, he said about the AFFH Rule: “So we just have to

reinterpret it, that’s all.”

77. Since Secretary Carson took office, HUD has provided no new guidance and has

stopped providing the same level of technical support that it previously offered to jurisdictions

preparing AFHs.

D. HUD’s January 5, 2018 Suspension of the AFFH Rule

78. Without providing advance notice or opportunity for comment, on January 5,

2018, HUD published a three-page notice in the Federal Register abruptly suspending the key

requirements of the AFFH Rule. See Affirmatively Furthering Fair Housing: Extension of

Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83

Fed. Reg. 683 (Jan. 5, 2018) (attached as Exhibit A).

79. HUD’s notice announced that no local government would be required to submit

AFHs until the next scheduled submission date that falls after October 31, 2020, nor would HUD

review AFHs submitted to it until after that date. 83 Fed. Reg. at 684.

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.c-

span.org/video/?421258-1/hud-secretary-nominee-ben-carson-testifies-confirmation-

hearing&start=2552.

Joseph Lawler & Al Weaver, Ben Carson: HUD Will “Reinterpret” Obama Housing

Discrimination Rule, Wash. Examiner, July 20, 2017, available at

https://www.washingtonexaminer.com/ben-carson-hud-will-reinterpret-obama-housing-

discrimination-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 Rule’s requirements was necessary

because, “[b]ased on initial reviews,” the agency concluded that “program participants need

additional time and technical assistance to adjust to the new AFFH process and complete AFH

submissions that can be accepted by HUD.” 83 Fed. Reg. at 684.

83. HUD stated that many program participants were struggling to meet the

requirements of the AFFH rule, “such as developing goals that could be reasonably expected to

result in meaningful actions[.]” 83 Fed. Reg. at 684-85. Further, HUD said, “program

participants struggled to develop metrics and milestones that would measure their progress as

they affirmatively further[] fair housing.” Id. at 685. The result of “program participants’

frequent misunderstanding of how to set clear goals, metrics, and milestones,” HUD stated, was

often “non-accepted AFHs.” Id.

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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 “additional technical assistance may result in program

participants better understanding their obligations under the AFFH Rule.” 83 Fed. Reg. at 685. It

further stated that “enhancing its technical assistance” would result in fewer resources expended

by program participants “because they are more likely to submit an initial AFH that can be

accepted by HUD.” Id. HUD did not explain how it would enhance its technical assistance

capabilities, nor did it acknowledge that it had failed to deploy all the technical assistance

resources already available to it. Nor, finally, did it explain why enhancing its technical

assistance required delaying the submission of the next round of AFHs at all, let alone for years.

It did say, cryptically, that it did not accept one regional AFH that was submitted collaboratively

by 19 program participants and that “improving technical assistance for collaborative AFHs will

enable collaborations to more efficiently use their resources to address fair housing issues that

cross jurisdictional boundaries.” Id. Once again, it did not explain how it intended to improve

technical assistance for collaboratively prepared AFHs, nor why such improvements required

effectively suspending the Rule for years.

86. HUD also stated that it could use the additional time to improve the Assessment

Tool. 83 Fed. Reg. at 685. It did not explicitly claim that this point justified or required its

suspension of the Rule.

87. While the AFH process is suspended, HUD told local governments to resort to the

failed AI process, i.e., prepare an Analysis of Impediments without HUD assistance, “take

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appropriate actions,” and then “maintain records reflecting the analysis and actions,” without

submitting anything for HUD review. 83 Fed. Reg. at 685. HUD did not explain why it now

believed this process would be effective; indeed, it did not even acknowledge that the AFFH

Rule’s basic premise was that the AI process had failed to ensure that federal funds were used to

affirmatively further fair housing, as the Fair Housing Act requires. See, e.g., 78 Fed. Reg. at

43,711 (finding that, under the AI regime, federal funding recipients did “not sufficiently

promote the effective use of limited public resources to affirmatively further fair housing”).

88. HUD told local governments they should “continue to affirmatively further fair

housing as required by the Fair Housing Act. 42 U.S.C. 3608.” 83 Fed. Reg. at 685. It did not go

beyond this bare statutory citation—not even to instruct local governments to follow HUD’s

implementing regulations (such as the definition of the AFFH term now found at 24 C.F.R.

§ 5.152) or its own guidance. Nor did it tell local governments to carry out the critical

community participation and consultation provisions of the AFFH Rule, 24 C.F.R. §§ 5.158 and

5.162(b)(1)(ii)(A), which require substantially more of local governments than the previous

HUD regulations governing the production of an AI. Because those regulatory requirements are

procedurally linked to the AFH process—which HUD now has suspended—they are effectively

suspended as well. HUD said nothing to suggest that local governments must comply with them,

nor is it obvious how they apply when it is no longer mandatory that funding recipients prepare

an AFH for HUD review.

89. Thus, HUD has instructed local governments to revert to the same pre-AFFH

Rule Analysis of Impediments process that HUD itself has determined is ineffective—and

involves no assistance or enforcement by HUD. It has abdicated oversight and enforcement of

the AFFH statutory requirement for years to come.

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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. § 5.162(a).

92. HUD did not identify any legal authority permitting it to distribute federal

housing funds based solely on a certification that a jurisdiction complied with the pre-AFFH

Rule requirements, notwithstanding that the AFFH Rule bars HUD from approving a

Consolidated Plan in the absence of an accepted AFH. See 24 C.F.R. § 5.162(d) (“If a program

participant does not have an accepted AFH, HUD will disapprove a consolidated plan.”).

93. Although it failed to take comments before acting, HUD said it would accept

comments on its action until March 6, 2018. 83 Fed. Reg. at 685. Almost all of the comments

HUD received criticized its action as unwarranted and unlawful. Nonetheless, HUD has given no

indication that it will rescind its suspension of the AFFH Rule.

94. Since issuing its notice suspending the AFFH Rule’s requirements, purportedly to

improve technical assistance, HUD has not taken any public actions aimed at improving its

technical assistance.

E. HUD’s Experience with the First Set of AFH Submissions Provided No Reason

to Suspend the Rule

95. Not only did HUD thus lack legal authority to suspend the AFFH Rule’s core

requirements, the evidence before it did not support suspending the Rule at all, let alone for

years. That some municipalities failed in their initial submissions to meet the Rule’s

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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 HUD’s current

technical assistance is inadequate, that is because HUD under Secretary Carson has cut back on

its technical assistance offerings to local jurisdictions and has stopped issuing technical guidance

on new developments to its own staff. It is not more time that HUD needs to offer enhanced

technical assistance—it is the willingness to take the task seriously.

96. Even before promulgating the AFFH Rule, HUD began taking steps to prepare

jurisdictions for complying with it. Since at least Fiscal Year 2012, Congress has appropriated

significant funds for HUD’s technical assistance efforts, and much of that money has been

devoted to the implementation of the Affirmatively Furthering Fair Housing Rule.

97. HUD and its agents have designed regional, multi-day trainings delivered around

the country for participating jurisdictions; drafted guidance on how to use the AFH tool; and

answered questions submitted through the HUD Exchange website. At one point, HUD’s agents

even provided direct, on-site assistance to multiple program participants. HUD staff prepared and

published the AFFH Rule Guidebook, while HUD staff and the agency’s technical assistance

contractors answered questions from program participants by phone or e-mail.

98. All of this changed in 2017. Despite funding appropriated by Congress for

technical assistance and the availability of a highly trained team of technical assistance

providers, HUD has willfully and systematically underutilized technical assistance resources

available to it.

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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-A-

Question portal.

100. In large part due to HUD’s own failure to assist them—as well as suspicion that

HUD no longer has the will to enforce the AFFH Rule vigorously—some jurisdictions submitted

inadequate AFHs that properly required rejection. Where HUD has initially rejected an AFH, it

has often done so because the jurisdiction failed to include even the basic components of a

functional AFH. For example, municipalities whose AFHs were rejected ignored segregation in

an entire section of their jurisdiction (notwithstanding maps that should have made such

segregation obvious); failed to include any metrics or milestones to measure improvements in

fair housing; failed to analyze the data HUD had provided to the jurisdiction; and/or failed to

consider housing barriers for key constituents, such as persons residing in public housing.

101. HUD’s description of the record before it when suspending the AFFH Rule’s

requirements also is incomplete in a way that makes its analysis unreasonable. HUD focuses

only on the additional work that HUD and local jurisdictions are required to do to implement the

AFFH Rule and entirely ignores the Rule’s already evident benefits. Despite HUD’s less than

robust efforts to make the Rule work, the AFH submissions it received before suspending the

Rule demonstrate that, on balance, the Rule was vastly improving jurisdictions’ commitment to

fair housing, which in turn was providing tangible benefits for individuals.

102. As HUD acknowledged, most of the 49 submissions it received cleared the high

bar the AFFH Rule sets even in their first submission. Thus, 32 of the 49 jurisdictions were

immediately on the path to finally meeting the Fair Housing Act’s requirements in exchange for

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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 not—by the Hidalgo County Regional Consortium (Hidalgo County) in

Texas—is described further in the next section regarding harm to Plaintiffs. That submission was

deeply flawed and was properly rejected; HUD’s suspension of the AFFH Rule ended the

process that would have improved it.

104. Accordingly, what HUD characterizes as a failure—that 17 submissions were

initially rejected—is in fact a success, because those jurisdictions were properly required to

improve their inadequate AFHs. This is precisely how the Rule was written to work: HUD

review, individualized feedback, and AFH revision by participants are all explicitly

contemplated. See 24 CFR §§ 5.162(a) and (b). After decades in which participants had operated

without oversight, it was to be expected that many participants would need assistance to meet a

new level of accountability. And by and large they have, eventually, met the challenge.

105. One study of the 28 AFHs submitted to HUD between October 2016 and July

2017 (that is, the majority of the 49 on which HUD based its decision) compared those

submissions to the AIs previously prepared by the same participants, and found striking

improvements. Whereas the AIs contained nebulous goals, the AFHs contained more concrete

ones. See Justin Steil & Nicholas Kelly, Survival of the Fairest? An Analysis of Affirmatively

Furthering Fair Housing Compliance (Sep. 15, 2017) (working paper for The Future of Housing

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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.

106. For example, Paramount, California committed to making (by explicit deadlines)

specific amendments to its zoning ordinance to make its housing more inclusive, such as

allowing group homes for people with disabilities in residential zones. New Orleans, Louisiana

promised to increase homeownership by Section 8 voucher recipients by 10 percent annually.

Chester County, Pennsylvania committed to creating 200 new affordable rental units in high

opportunity neighborhoods across the county by 2021. El Paso County, Colorado similarly

promised to assist in the development of 100 publicly supported affordable housing units in areas

of opportunity. All of these commitments can be monitored and their success measured.

107. A representative success story is the AFH which Philadelphia completed and

HUD approved. In accordance with the AFFH Rule’s community participation requirements,

Philadelphia conducted a survey in both English and Spanish (receiving more than 5,000

responses, including more than 900 from residents of high-poverty neighborhoods), conducted

focus groups around the city, took comments on an initial (weak) draft AFH, and otherwise made

far greater effort than it ever had to learn about barriers to fair housing in its own communities.

The substantive results were striking. For example, the city’s final AFH identified widespread

evictions in neighborhoods where predominantly racial minorities live as a substantial barrier to

fair housing. It committed the city to taking concrete steps in response, including creating an

Submitted AFHs can be viewed at: https://furtheringfairhousing.mit.edu/assessment-fair-

housing-city.

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“eviction prevention project” pursuant to which lawyers and advocates will represent those

facing unjust eviction.

108. These outcomes are exactly the sort of concrete, locally driven commitments to

fair housing that were rarely made under the AI regime and that the AFFH Rule was intended to

promote, assist, and require. And they were made with greater community input, thanks to the

AFFH Rule’s requirements in that regard.

109. One study, which was submitted to HUD in response to its call for comments on

the suspension of the Rule, found that the AFH process in virtually all cases provided a greater

level of public engagement than the AI process had. That meant, for example, more public

meetings and notice provided in more places and media (as well as in more languages) to ensure

that more members of the public were aware of the process and had the opportunity to

participate. It also meant greater acknowledgment of the public’s input in the AFH itself. For

example, Nashville, Tennessee’s AFH spent 107 pages detailing public comments received and

its response to them; it had devoted nine pages of its AI to such topics. See Furman Center

Comment Letter, available at https://www.regulations.gov/document?D=HUD-2018-0001-0036

(last visited Apr. 26, 2018).

110. As HUD stated in the Final Rule, the extent to which the AFFH Rule increases

burden on program participants was expected to depend on how seriously those jurisdictions

took their AFFH obligations all along. See 80 Fed. Reg. at 42,273. HUD fully expected that

those jurisdictions that had flouted their obligations for years would face some increased burden

when finally made to comply. It estimated that participating jurisdictions overall would incur

compliance costs of about $25 million, while HUD itself would incur about $9 million in

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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. HUD’s Action Will Harm Plaintiffs If Not Enjoined

111. Defendants’ unlawful actions have caused Plaintiffs to suffer irreparable and

ongoing injury for which there is no adequate remedy at law. These unlawful actions will

continue to cause injury to Plaintiffs unless and until injunctive relief is granted. Defendants’

suspension of the AFFH Rule’s core requirements is frustrating Plaintiffs’ missions. In response,

Texas Appleseed and Texas Housers (Texas Plaintiffs) have had to divert resources they were

planning to devote to other activities critical to their missions to remedying the effects of

Defendants’ action in municipalities around Texas. NFHA, meanwhile, has had to divert

resources to assisting its members around the country in similar efforts to combat the effects of

Defendants’ action.

1. Harm to Texas Plaintiffs

112. Both Texas Plaintiffs contributed to the development of the AFFH Rule

(including by submitting comments) and have devoted considerable resources to ensuring that it

is implemented properly in Texas. They have relied heavily on the AFH Rule’s requirements,

which ensure that local jurisdictions take fair housing seriously rather than continuing to

perpetuate the patterns of residential racial segregation and discriminatory use of federal funds

that historically have plagued much of Texas.

113. For example, since 2008, the Texas Plaintiffs have devoted substantial time and

resources (including filing multiple complaints with HUD) to requiring state and local

governments to spend federal disaster relief money in ways that are non-discriminatory and

affirmatively further fair housing. They have played a large role in the creation of an AI for the

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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 jurisdictions’ compliance.

114. Since the AFFH Rule’s promulgation, the Texas Plaintiffs have devoted resources

to the development of effective AFHs in a number of communities and regions. In particular,

they have provided substantial input into the development of municipal AFHs in Fort Worth,

Corpus Christi, and League City. They also have helped organize community members and

assisted in the development of a regional AFH in the Hidalgo County region, covering 19

jurisdictions and housing authorities. They have spent thousands of dollars in staff time and

resources in various Texas communities, providing public education to municipalities, planners,

and attorneys. These efforts have begun to pay dividends in large part because of specific

protections that the AFFH Rule provides. HUD’s suspension of the Rule’s requirements, if not

enjoined, will frustrate Texas Plaintiffs’ efforts to ensure fair housing in the communities they

serve.

115. The efforts of the Texas Plaintiffs, combined with the AFFH Rule’s protections,

have substantially increased the degree of public participation in each community’s AFH

process. The AFFH Rule’s requirements have amplified the ability of individuals, grassroots

groups, and advocacy groups like Texas Plaintiffs to identify, publicly articulate, and force

jurisdictions to grapple with local fair housing problems that previously went unaddressed. If

HUD’s suspension of the Rule’s requirements is not enjoined, Texas Plaintiffs will be required to

repeat and redouble their efforts to ensure fair housing in the communities they serve, because

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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 Rule’s

procedural and substantive requirements.

116. As one illustration, the Texas Plaintiffs devoted substantial resources to ensuring

that, when Hidalgo County prepared its AFH (as one of the first AFH submitters in Texas),

community participation was more robust. Among other things, they prepared a lengthy

comment letter advising County officials to provide multiple forums in which interested

residents could participate, ensured that materials were prepared in Spanish, and saw to it that

notice and opportunity to participate was given to the predominantly Latino population living in

“colonias,” i.e., plots of land outside incorporated cities that often lack infrastructure such as

water, sewage, electricity, and paved roads. Hidalgo County historically has ignored the needs of

the people living there (even as it takes federal funds and certifies AFFH compliance), but the

AFFH Rule’s requirements provide a mechanism for the Texas Plaintiffs to force the county to

consider those needs.

117. The AFH that Hidalgo County submitted to HUD in 2017 nonetheless was

deficient. It failed, among other things, to grapple with the publicly stated needs of colonias

residents or to engage with the comments Texas Plaintiffs and others provided. Texas Plaintiffs

sent HUD a letter alerting the agency to these problems, and on December 12, 2017, HUD

rejected the submitted AFH, requiring the County to submit a revised one by March 12, 2018.

Hidalgo County’s AFH thus is one of the 17 initially rejected submissions upon which HUD

relies as a reason to suspend the Rule.

118. Relying on the AFFH Rule’s requirements, Texas Plaintiffs spent thousands of

dollars in staff time, materials, and other resources to create the conditions under which fair

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housing finally could come to Hidalgo County. Just when those efforts seemed to be bearing

fruit—with HUD rejecting the County’s initial submission and requiring it to prepare a revised

submission that reflects an effort to, finally, take its AFFH obligations seriously—HUD’s action

endangers this progress. Now HUD will not require Hidalgo County to make a compliant

submission, although it already has found that Hidalgo County has not made a sufficient

commitment to affirmatively further fair housing.

119. HUD’s abdication of its statutory responsibility, if not enjoined, will require

Texas Housers and Texas Appleseed to expend considerable additional resources to bring fair

housing to Hidalgo County without HUD’s assistance and without the procedural rights the

AFFH Rule provides them. The County, no longer needing HUD approval, now has no incentive

to meaningfully improve its rejected AFH or otherwise address the housing needs that have

plagued many of its residents for too long. That means that Texas Plaintiffs will have to expend

considerable resources making fair housing a reality in Hidalgo County that they would not have

to expend if HUD were enforcing the requirements of the AFFH Rule.

120. Similarly, in the City of Corpus Christi, which also had an AFH due on January 4,

2018, the Texas Plaintiffs consulted extensively with local advocates, encouraged HUD to offer

the City an extension of time to incorporate changes based on the devastating impact of

Hurricane Harvey on the City and surrounding region, and submitted comments on the AFH. The

City declined the extension and submitted an AFH that barely acknowledged massive housing

loss, extended displacement, and infrastructure impacts caused by one of the costliest disasters in

U.S. history. Because of HUD’s unlawful action, HUD will not review that defective AFH,

leaving the City with no obligation to improve it and no incentive otherwise to make concrete

plans to address fair housing concerns in disaster relief. The Texas Plaintiffs therefore will have

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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 Worth’s AFH coming due, Texas Housers hired an

employee, set up an office in that city, engaged in discussion with community leaders and

municipal employees, and otherwise devoted considerable resources to laying the groundwork

for the development and then implementation of an AFH that would make fair housing in Fort

Worth, finally, a reality. Just as it was nearly time for Fort Worth to submit a draft to HUD,

HUD announced that it would no longer accept or review AFHs. As a consequence, Fort Worth

decided not to complete an AFH. Rather, it will rely on the former AI process to support its

claim that it has met its AFFH obligations. Texas Housers thus will have to devote still more

resources in Fort Worth to sustain or recreate a climate and process in which community

members and city officials are able to air their significant concerns about segregation and

unequal access to opportunity for families of color. It also will have to spend more resources, in

the absence of HUD review, monitoring Fort Worth’s use of federal funds to ensure compliance

with federal law. Those are resources it would not have to expend if HUD continued to enforce

the AFFH Rule.

122. The Texas Plaintiffs will continue to work to promote fair housing in those two

municipalities and elsewhere in Texas, but they have lost the benefit of the AFFH Rule’s

requirements, pursuant to which municipalities must consult with them at regular intervals, must

review and engage with their comments and concerns, must reach out to community members,

and more. They also have lost the benefit of HUD review of submitted AFHs (and the Texas

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 41 of 60

Plaintiffs’ comments on them), along with the prospect of HUD non-acceptance of AFHs that

inadequately assess fair housing conditions and/or fail to commit to concrete solutions. These

consequences of HUD’s action frustrate Texas Plaintiffs’ mission of achieving fair housing for

the communities they serve.

123. Texas Plaintiffs have taken or will take many specific actions to counter the

effects of HUD’s suspension of the AFH submission requirement and convince local government

program participants to nonetheless take their fair housing obligations seriously. Such actions

include:

• Producing a video to educate the public (including affected grantees) about the impact of

the Rule and grantees’ continuing obligation to affirmatively further fair housing

notwithstanding HUD’s action;

• Developing a fact sheet for advocates statewide on the effect of HUD’s action;

• Responding to continuing requests for information and resources;

• Engaging in ongoing public education efforts, including community forums on fair

housing in Amarillo and Fort Worth; meeting with Hidalgo County; writing advocacy

pieces; and advising attorneys, community groups, and consultants working on now-

suspended AFHs on the impact of HUD’s suspension of the AFH submission requirement

on ongoing fair housing obligations; and

• Writing letters to the 65 most immediately impacted jurisdictions regarding their

continued obligation to affirmatively further fair housing, an in-process action which by

itself will take about 120 hours of staff time.

124. The Texas Plaintiffs have had to divert resources in many other ways to ensure

that the interest in fair housing that the AFFH Rule created is not lost while the Rule’s core

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requirements are suspended. For example, Texas Housers’ staff continues to meet on a regular

basis with community groups in Hidalgo County, to keep them engaged in long-term efforts to

secure additional housing and community development resources for the colonias and otherwise

combat discrimination on the basis of national origin. Texas Housers also continues to invest

resources in educating grassroots groups in Hidalgo County about their rights to equitable flood

drainage, the need to reform subdivision rules, and the rights of non-English speakers to receive

information about public programs in a language and format they can understand. Without the

focused AFH process that provides a specific forum for articulating these grassroots concerns at

specific times—and requires the County to listen to and address them—these efforts are much

more inefficient, requiring far more of Texas Housers’ time and achieving less tangible results.

125. HUD’s unlawful suspension of the AFH process has greatly undermined Texas

Plaintiffs’ ability to accomplish their missions and is making them divert resources to activities

they would not otherwise have engaged in, just to get to an inferior result. Because of HUD’s

action, Texas Plaintiffs have diverted their resources and will continue to divert their resources to

educating funding recipients and community members that jurisdictions still must comply with

the AFFH statutory requirements notwithstanding HUD’s refusal to enforce them. They

consequently have had to cut back on important activities they would be pursuing if not for

HUD’s suspension of the AFFH Rule’s requirements.

126. For example, Texas Plaintiffs have had to substantially curtail their grassroots

outreach, education, and policy and legal support in Houston and surrounding areas recovering

from the effects of Hurricane Harvey. If not for their need to counteract the effects of HUD’s

action, Texas Plaintiffs would be deeply engaged in research, data analysis, policy and legal

support, and public education concerning various recovery issues, including State and municipal

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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 HUD’s suspension of the AFFH Rule’s requirements

also limits the Texas Plaintiffs’ ability to engage in outreach and education for low-income

families in places like Beaumont and Port Arthur, where low-income families are

disproportionately exposed to environmental hazards that cause persistent health problems, as

well as in Amarillo, where Texas Plaintiffs had begun to meet with community groups to talk

about fair housing problems and develop advocacy strategies, but now must suspend such

efforts.

128. Texas Appleseed has also been required to divert the time of the head of its

Disaster Recovery and Fair Housing Project away from developing a project to protect land

rights of African Americans who own “heir property,” i.e., land that has been passed down

informally from generation to generation without recorded transactions—complicating, among

other things, eligibility for federal benefits for disaster recovery—and from providing input on

the revision of the zoning code in Austin, Texas, to address patterns of segregation and access to

opportunity in that city. Other organizational representatives have diverted resources away from

fundraising and other programmatic work to assist with these projects and to address various

other capacity issues caused by the shift in focus relating to HUD’s suspension of the AFH

process.

2. Harm to NFHA

129. The Texas-specific harm being suffered by the Texas Plaintiffs is representative

of the harm that NFHA and its members are suffering around the country.

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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

HUD’s unlawful decision to suspend the AFFH Rule’s requirements. To counteract the effects of

HUD’s action, NFHA has been forced to divert resources away from other important projects.

131. Since the late 1980s, NFHA has worked to encourage HUD to do more to

implement and enforce the Fair Housing Act’s requirement that recipients of federal funds

affirmatively further fair housing. Among other things, it has long called on HUD to enact

procedures that ensure AFFH compliance. When HUD has been unwilling to effectively enforce

the AFFH requirement, NFHA has had to expend resources in its stead.

132. When HUD modified the Analysis of Impediments process in 1995 and issued

the Fair Housing Planning Guide in 1996, NFHA was intimately involved with the

implementation of the AI process on the ground. Among other things, it trained its members and

worked with them locally to develop AIs; held educational sessions at conferences; and helped

HUD identify key fair housing issues that funding recipients should address in their AIs.

133. In 2001, NFHA developed and disseminated a template for developing AIs,

because HUD’s Fair Housing Planning Guide had proven inadequate for that task. NFHA’s

template was widely distributed and used nationally.

134. NFHA and its members have played a key role in the development and

implementation of local AIs across the country.

135. Based on its experience with the failed AI process, NFHA was one of the leading

advocates pushing for the creation of the AFFH Rule to replace it. Along with partners, NFHA

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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, HUD’s progress in implementing the AFFH obligation. Its report, published in 2008,

concluded that “[t]he current federal system for ensuring fair housing compliance by state and

local recipients of housing assistance has failed” and recommended many specific changes.

National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing:

Report of the National Commission on Fair Housing and Equal Opportunity 44 (2008), available

at http://www.naacpldf.org/files/publications/Future%20of%20Fair%20Housing.pdf.

136. NFHA devoted considerable resources to assisting HUD with developing the

AFFH Rule. Among other things, it participated in HUD’s public hearings and submitted written

comments on the proposed AFFH Rule itself and the AFH template.

137. Once HUD issued the final AFFH Rule, NFHA and its members worked in local

communities across the country to generate effective community participation and substantive

provisions in AFHs that would make meaningful differences to communities. NFHA members

have actively participated in the AFH planning process in many jurisdictions, with NFHA

providing resources, guidance, and strategic help. NFHA has posted on its website an extensive

list of AFFH resources and materials to assist its members and the grantees themselves.

138. HUD’s action, if not enjoined, will diminish the benefits that NFHA derives from

all this work already done and will frustrate the accomplishment of NFHA’s mission. NFHA

engages in a variety of activities aimed at advancing fair housing priorities around the country.

The AFFH Rule’s requirements, when in effect, make NFHA’s efforts more efficient and

effective. Not only does the Rule provide NFHA and its members greater ability to ensure that

fair housing considerations are included in municipal planning decisions, but its standardized

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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 NFHA’s ability to achieve fair housing and help its members to do the same.

139. HUD’s abrupt suspension of the AFFH Rule’s requirements has required NFHA

to divert resources to educating and counseling its members, civil rights organizations, and

affordable housing stakeholders about HUD’s action and how to achieve fair housing locally

under much more challenging circumstances. Such diversion will continue unless and until

HUD’s action is enjoined.

140. Because of NFHA’s long-standing commitment to and expertise regarding the

AFFH statutory obligation (before and after the promulgation of the AFFH Rule), its members

and other civil rights and affordable housing stakeholders look to it for education and counseling

regarding HUD’s notice and how to promote effective fair housing planning without the AFFH

Rule’s protections. NFHA is expending considerable financial and human resources on this

education and counseling.

141. For example, NFHA staff gave presentations concerning the notice and its effects

to the Leadership Conference on Civil and Human Rights Fair Housing and Fair Lending

Taskforce; Americans for Financial Reform Housing and Foreclosure Working Group; and the

Affirmatively Furthering Fair Housing Working Group of NFHA’s members.

142. NFHA staff members have begun developing a comprehensive side-by-side

analysis of the differences between the AFH and AI processes for use in educating and

counseling its members. NFHA will disseminate this document to its members upon its

completion and will expend further resources continuing to update it.

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

counseling regarding HUD’s action with its members located in strategic areas throughout the

country. These efforts, which already have required considerable staff time, have been necessary

and will continue to be necessary to educate members about the notice’s impact and the most

effective means for ensuring effective fair housing planning without the AFFH Rule’s

protections. NFHA has had to identify those areas most immediately affected by HUD’s actions,

such as where local government program participants submitted AFHs prior to January 5 but did

not receive HUD’s acceptance of their submissions, and then conduct outreach to its members

and other allied local civil rights and affordable housing advocates operating in those

jurisdictions.

144. The amount of resources that NFHA must divert to such activities will increase in

the coming months, because most local government program participants would have had AFHs

due in the next two years pursuant to the AFFH Rule. Hundreds of local governments in the

coming months will have to determine whether to use the AFH tool to fulfill their AI obligations

prior to developing their Consolidated Plans, and whether they will adhere to the AFFH Rule’s

timeline and procedural protections. NFHA will have to continue to divert resources from its

planned operations to helping these jurisdictions, its members, and other civil rights and

affordable housing groups further fair housing in these uncertain circumstances. And it will not

be able to do so in such a targeted way, because of the much larger number of jurisdictions at

issue.

145. In the absence of HUD oversight, NFHA is preparing to devote substantial

resources to outreach, public education, and advocacy to assist its members and community

groups working to ensure that jurisdictions formulate AIs that are robust as possible (given the

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circumstances) and then monitoring compliance. Through this work, NFHA plans to blunt, as

best it can, the negative impact of HUD’s action. It will have to devote resources to assisting its

members and others with respect to monitoring and enforcing AFFH compliance in the absence

of effective monitoring and enforcement by HUD. NFHA would not have to devote nearly the

same level of resources to such tasks with the AFFH Rule in place.

146. As a result of HUD’s action, funding recipients that already were at work on

assessments—many of which would have been due not much more than a year from now—have

halted their work. Accordingly, NFHA and its members will face a more onerous task in helping

these jurisdictions develop effective AFHs after the lengthy period of delay.

CAUSES OF ACTION

First Cause of Action

Administrative Procedure Act – Agency Action Taken Without Observance of Procedure

Required by Law

147. The APA empowers this Court to hold unlawful and set aside agency actions

taken “without observance of procedure required by law.” 5 U.S.C § 706(2)(D).

148. Without following notice-and-comment procedure, HUD has delayed for three

years the AFH process required by the properly promulgated AFFH Rule. During this time, the

agency announced, it will exempt local governments from following their regulatory obligation

to prepare and submit AFHs. Meanwhile, the agency will not meet its own regulatory obligation

to review all AFHs submitted—including those already submitted—and either accept them or

work with jurisdictions to generate AFHs that meet the Rule’s requirements.

149. Without notice-and-comment procedure, HUD has reinstated the AI process that

was superseded by the AFFH Rule and does not exist in current regulation.

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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 Rule’s community

participation procedural rules.

151. Without notice-and-comment procedure, HUD has suspended the requirement of

the AFFH Rule that jurisdictions certify that they meet the Rule’s definition of affirmatively

furthering fair housing. HUD also has suspended the requirement that jurisdictions meet the fair

housing requirements that the AFFH Rule added to the Consolidated Plan process in order to

continue to receive federal funds.

152. Pursuant to the APA, HUD was required to undertake notice-and-comment

rulemaking to revise the AFFH Rule, including changing the dates on which jurisdictions are

required to submit their first AFHs for HUD review.

153. By failing to engage in notice-and-comment rulemaking before delaying and

altering the AFFH Rule, HUD failed to observe procedures required by law, in contravention of

the APA.

Second Cause of Action

Administrative Procedure Act – Agency Action That is Arbitrary, Capricious or an Abuse

of Discretion

154. The APA empowers this Court to “hold unlawful and set aside” agency action

that is “arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law.” 5

U.S.C. § 706(2)(A).

155. HUD stated that it was suspending the AFFH Rule’s requirements in part because

implementing it required the expenditure of agency resources. Abandoning a regulatory program

lawfully promulgated by the agency for that reason was arbitrary and capricious, particularly

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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 Rule’s requirements in part

because local governments must expend resources to comply with it. That local governments

must expend resources to implement a duly promulgated regulatory program—a program that

they have voluntarily agreed to implement as a condition of accepting federal funding—does not

justify delaying the requirement that they comply with the regulatory scheme while permitting

them to keep the federal funds. HUD does not contend that the additional resources local

governments have had to expend are unreasonable or unexpected, and they are not.

157. HUD suspended the AFFH Rule’s requirements in part because some local

governments initially submitted AFHs that HUD was unwilling to accept. HUD does not contend

that it was surprising that some local governments required assistance to formulate compliant

AFHs in the Rule’s early days, and it was not. Nor did HUD explain why it concluded that the

submission of some deficient AFHs was a reason to effectively suspend the Rule.

158. HUD stated that it was suspending the AFFH Rule’s requirements because of

unspecified concerns about the quality of its own technical assistance. HUD did not explain why

it cannot improve the quality of its technical assistance while implementing the Rule. HUD did

not acknowledge or explain its decision to voluntarily reduce its technical assistance to

jurisdictions.

159. HUD stated that it intends to use the time during which the AFFH Rule is

effectively suspended to revise the Assessment Tool for Local Governments. Changes could be

made to the Assessment template without stopping the Assessment process—as the Rule

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specifically contemplates and requires at regular intervals. The intention to revise the

Assessment Tool does not justify HUD’s action.

160. HUD’s reasoning ignores key evidence that was before the agency and

improperly focuses on what the agency now perceives to be the Rule’s costs (such as increased

work) without mentioning the benefits flowing from the Rule.

161. HUD’s reasoning fails to acknowledge that almost all jurisdictions participating in

the process so far have successfully submitted compliant AFHs, either on first submission or

after work with HUD. It fails to acknowledge that these AFHs contain far more concrete,

measurable commitments to further fair housing than were in the AIs prepared by the same

jurisdictions.

162. HUD has not explained why it is acceptable to return to the AI regime that, as the

agency itself has found, does not work. It did not acknowledge its own findings in promulgating

the Rule regarding the ineffectiveness of the AI regime.

163. HUD’s delay of the Rule is arbitrary, capricious, or an abuse of discretion, in

contravention of the APA.

Third Cause of Action

Administrative Procedure Act – Agency Action Not in Accordance with Law

164. The APA empowers this Court to set aside an agency action that is “not in

accordance with law.” 5 U.S.C. 706(2)(A).

165. In promulgating the AFFH Rule, HUD found that it needed a new and robust

approach to ensuring that local governments and other grantees take actions that meet their

obligations under the Fair Housing Act as recipients of federal housing funds. HUD found that

its previous practices had not been effective in leading to meaningful action regarding

segregation, concentrated poverty, disparities in access to community assets, and other problems

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 52 of 60

that the Fair Housing Act requires funding recipients to address. It adopted the AFFH Rule to

bring its own practices and its grantees’ practices into compliance with the statutory requirement.

80 Fed. Reg. at 42,275.

166. HUD has an affirmative obligation under the Fair Housing Act to ensure that

federal housing programs are administered, and federal housing funds spent, in a manner that

furthers fair housing. The AFFH obligation requires both addressing actions that are actively

discriminatory and taking affirmative steps to overcome barriers to fair housing choice that, in

many cases, are the products of long-standing structural and institutional racism. 42 U.S.C.

§§ 3608(d), (e)(5). As HUD has stated, where a program participant “has the ability to create

opportunities outside of the segregated, low-income areas but declines to do so,” that raises a

serious question as to whether the participant is meeting its obligation to affirmatively further

fair housing. 80 Fed Reg. 42279. HUD is now making a comparable decision.

167. In suspending core provisions of the AFFH Rule, HUD abdicated its statutory

responsibilities. It now is once again distributing federal housing funds without ensuring that

local government grantees take the steps necessary to comply with their obligation to

affirmatively further fair housing.

168. HUD’s effective suspension of the AFFH Rule violates the Fair Housing Act, in

contravention of the APA.

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 53 of 60

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court:

(a) Enter a declaratory judgment that HUD’s January 5, 2018 decision to suspend

various requirements of the AFFH Rule is arbitrary, capricious, an abuse of discretion or

contrary to law, and without observance of procedure required by law;

(b) Issue preliminary and permanent injunctions requiring HUD to rescind its January

5, 2018 notice suspending the AFFH Rule’s requirements and timely implement and enforce

all the requirements of the AFFH Rule going forward;

illegal conduct described herein and to prevent similar occurrences in the future;

(d) Award Plaintiffs their reasonable attorneys’ fees and costs; and

(e) Order such other relief as this Court deems just and equitable.

Dated: May 8, 2018

Respectfully submitted,

/s/ Sasha Samberg-Champion

Sasha Samberg-Champion (DC Bar No.

981553)

Sara Pratt (DC bar admission pending)

Michael G. Allen (DC Bar No. 409068)

RELMAN, DANE & COLFAX PLLC

1225 19th Street, NW, Suite 600

Washington, DC 20036

Phone: (202) 728-1888

Fax: (202) 728-0848

ssamberg-champion@relmanlaw.com

spratt@relmanlaw.com

[email protected]

Jon Greenbaum (DC Bar No. 489887)

Joseph D. Rich (DC Bar No. 463885)

Thomas Silverstein (DC Bar No. 1552406)

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 54 of 60

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1401 New York Ave., NW

Washington, DC 20005

(202) 662-8331

jrich@lawyerscommittee.org

Philip Tegeler (DC Bar No. 1002526)

Megan Haberle (DC bar admission pending)

POVERTY & RACE RESEARCH ACTION

COUNCIL

740 15th Street NW, Suite 300

Washington, DC 20005

(202) 360-3906

ptegeler@prrac.org

Rachel Goodman

Sandra Park

AMERICAN CIVIL LIBERTIES UNION

125 Broad St., 18th Floor

New York, NY 10004

(212) 549-2500

[email protected]

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.

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 55 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

Case 1:18-cv-01076 Document 1 Filed 05/08/18 Page 56 of 60

EXHIBIT

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

683

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) 435–

8363, [email protected].

Name of Committee: Vascular and

Hematology Integrated Review Group,

Hypertension and Microcirculation Study

Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 6:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Hilton Garden Inn Orlando East

UCF, 1959 N. Alafaya Trail, Orlando, FL

32822.

Contact Person: Ai-Ping Zou, M.D., Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 4118,

MSC 7814, Bethesda, MD 20892, 301–408–

9497, [email protected].

Name of Committee: Endocrinology,

Metabolism, Nutrition and Reproductive

Sciences Integrated Review Group,

Integrative Nutrition and Metabolic Processes

Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 1:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Westin Grand, 2350 M Street NW,

Washington, DC 20037.

Contact Person: Gregory S Shelness, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 6156,

Bethesda, MD 20892–7892, 301–755–4335,

[email protected].

Name of Committee: Bioengineering

Sciences & Technologies Integrated Review

Group, Nanotechnology Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 5:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Baltimore Marriott Waterfront, 700

Aliceanna Street, Baltimore, MD 21202.

Contact Person: James J Li, Ph.D., Scientific

Review Officer, Center for Scientific Review,

National Institutes of Health, 6701 Rockledge

Drive, Room 5148, MSC 7849, Bethesda, MD

20892, 301–806–8065, [email protected].

Name of Committee: Molecular, Cellular

and Developmental Neuroscience Integrated

Review Group, Cellular and Molecular

Biology of Glia Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 5:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: St. Gregory Hotel, 2033 M Street

NW, Washington, DC 20036.

Contact Person: Linda MacArthur, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 4187,

Bethesda, MD 20892, 301–537–9986,

[email protected].

Name of Committee: Integrative,

Functional and Cognitive Neuroscience

Integrated Review Group, Auditory System

Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 6:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: The Westgate Hotel, 1055 Second

Avenue, San Diego, CA 92101.

Contact Person: Ying-Yee Kong, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 5185,

Bethesda, MD 20892, [email protected].

Name of Committee: Emerging

Technologies and Training Neurosciences

Integrated Review Group, Neuroscience and

Ophthalmic Imaging Technologies Study

Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 5:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Renaissance Washington, DC

Downtown Hotel, 999 Ninth Street,

Washington, DC 20001.

Contact Person: Yvonne Bennett, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 5199,

MSC 7846, Bethesda, MD 20892, 301–379–

3793, [email protected].

Name of Committee: Risk, Prevention and

Health Behavior Integrated Review Group,

Behavioral Medicine, Interventions and

Outcomes Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 6:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Doubletree Guest Suites Santa

Monica, 1707 Fourth Street, Santa Monica,

CA 90401.

Contact Person: Lee S Mann, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 3224,

MSC 7808, Bethesda, MD 20892, 301–435–

0677, [email protected].

Name of Committee: Musculoskeletal, Oral

and Skin Sciences Integrated Review Group,

Skeletal Biology Development and Disease

Study Section.

Date: February 8–9, 2018.

Time: 8:00 a.m. to 3:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: Westin Baltimore Washington

Airport, 1100 Old Elkridge Landing Road,

Linthicum Heights, MD 21090.

Contact Person: Aruna K Behera, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 4211,

MSC 7814, Bethesda, MD 20892, 301–435–

6809, [email protected].

Name of Committee: Molecular, Cellular

and Developmental Neuroscience Integrated

Review Group, Cellular and Molecular

Biology of Neurodegeneration Study Section.

Date: February 8–9, 2018.

Time: 8:30 a.m. to 4:00 p.m.

Agenda: To review and evaluate grant

applications.

Place: SpringHill Suites San Diego

Downtown/Bayfront, 900 Bayfront Court, San

Diego, CA 92101.

Contact Person: Laurent Taupenot, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 4183,

MSC 7850, Bethesda, MD 20892, 301–435–

1203, [email protected].

Name of Committee: Center for Scientific

Review Special Emphasis Panel, Integrative

Nutrition and Metabolic Processes.

Date: February 8, 2018.

Time: 1:30 p.m. to 2:30 p.m.

Agenda: To review and evaluate grant

applications.

Place: Westin Grand, 2350 M Street NW,

Washington, DC 20037.

Contact Person: Gary Hunnicutt, Ph.D.,

Scientific Review Officer, Center for

Scientific Review, National Institutes of

Health, 6701 Rockledge Drive, Room 6164,

MSC 7892, Bethesda, MD 20892, 301–435–

0229, [email protected].

(Catalogue of Federal Domestic Assistance

Program Nos. 93.306, Comparative Medicine;

93.333, Clinical Research, 93.306, 93.333,

93.337, 93.393–93.396, 93.837–93.844,

93.846–93.878, 93.892, 93.893, National

Institutes of Health, HHS).

Dated: December 29, 2017.

Anna Snouffer,

Deputy Director, Office of Federal Advisory

Committee Policy.

[FR Doc. 2018–00052 Filed 1–4–18; 8:45 am]

BILLING CODE 4140–01–P

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

[Docket No. FR–5173–N–15]

Affirmatively Furthering Fair Housing:

Extension of Deadline for Submission

of Assessment of Fair Housing for

Consolidated Plan Participants

AGENCY

: Office of the Assistant

Secretary for Fair Housing and Equal

Opportunity, HUD.

ACTION

: Notice.

SUMMARY

: This notice advises that HUD

is extending the deadline for submission

of an Assessment of Fair Housing (AFH)

by local government consolidated plan

program participants to their next AFH

submission date that falls after October

31, 2020. Such program participants

will not be required to submit an AFH

using the current Office of Management

and Budget (OMB)-approved version of

the Assessment of Fair Housing Tool for

Local Governments (OMB Control No:

2529–0054), but must continue to

comply with existing obligations to

affirmatively further fair housing. Local

government program participants that

have already submitted an AFH that has

been accepted by HUD must continue to

execute the goals of that AFH.

DATES

Applicability Date: January 5, 2018.

Comment Due Date: March 6, 2018.

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

684

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

ADDRESSES

: Interested persons are

invited to submit comments responsive

to this notice to the Office of General

Counsel, Regulations Division,

Department of Housing and Urban

Development, 451 7th Street SW, Room

10276, Washington, DC 20410–0001. All

submissions should refer to the above

docket number and title. Submission of

public comments may be carried out by

hard copy or electronic submission.

1. Submission of Hard Copy

Comments. Comments may be

submitted by mail or hand delivery.

Each commenter submitting hard copy

comments, by mail or hand delivery,

should submit comments to the address

above, addressed to the attention of the

Regulations Division. Due to security

measures at all federal agencies,

submission of comments by mail often

results in delayed delivery. To ensure

timely receipt of comments, HUD

recommends that any comments

submitted by mail be submitted at least

2 weeks in advance of the public

comment deadline. All hard copy

comments received by mail or hand

delivery are a part of the public record

and will be posted to http://

www.regulations.gov without change.

2. Electronic Submission of

Comments. Interested persons may

submit comments electronically through

the Federal eRulemaking Portal at

http://www.regulations.gov. HUD

strongly encourages commenters to

submit comments electronically.

Electronic submission of comments

allows the commenter maximum time to

prepare and submit a comment, ensures

timely receipt by HUD, and enables

HUD to make comments immediately

available to the public. Comments

submitted electronically through the

http://www.regulations.gov website can

be viewed by other commenters and

interested members of the public.

Commenters should follow instructions

provided on that site to submit

comments electronically.

No Facsimile Comments. Facsimile

(fax) comments are not acceptable.

Public Inspection of Comments. All

comments submitted to HUD regarding

this notice will be available, without

charge, for public inspection and

copying between 8 a.m. and 5 p.m.,

Eastern Time, weekdays at the above

address. Due to security measures at the

HUD Headquarters building, an advance

appointment to review the public

comments must be scheduled by calling

the Regulations Division at 202–708–

3055 (this is not a toll-free number).

Individuals with speech or hearing

impairments may access this number

through TTY by calling the Federal

Relay Service at 800–877–8339 (this is

a toll-free number). Copies of all

comments submitted are available for

inspection and downloading at http://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT

Krista Mills, Deputy Assistant Secretary,

Office of Policy, Legislative Initiatives,

and Outreach, Office Fair Housing and

Equal Opportunity, Department of

Housing and Urban Development, 451

7th Street SW, Room 5246, Washington,

DC 20410; telephone number 202–402–

6577. Individuals with hearing or

speech impediments may access this

number via TTY by calling the toll-free

Federal Relay Service during working

hours at 1–800–877–8339.

SUPPLEMENTARY INFORMATION

I. Background

On July 16, 2015, at 80 FR 42357,

HUD published in the Federal Register

its Affirmatively Furthering Fair

Housing (AFFH) final rule. The AFFH

final rule provides HUD program

participants with a new approach for

planning for fair housing outcomes that

will assist them in meeting their

statutory obligation to affirmatively

further fair housing as required by the

Fair Housing Act, 42 U.S.C. 3608. To

assist HUD program participants in

meeting this obligation, the AFFH rule

provides that program participants must

conduct an Assessment of Fair Housing

(AFH) using an ‘‘Assessment Tool.’’

HUD’s AFFH regulations provide for a

staggered AFH submission deadline for

its program participants. (See 24 CFR

5.160.)

On October 24, 2016, at 81 FR 73129,

HUD published a notice extending the

deadline for submission of an AFH for

local government consolidated plan

participants that received in Fiscal Year

(FY) 2015, or receive in a subsequent

fiscal year, a CDBG grant of $500,000 or

less, or in the case of a HOME

consortium, whose members

collectively received a CDBG grant of

$500,000 or less, from the program year

that begins on or after January 1, 2018,

to the program year that begins on or

after January 1, 2019 for which a new

consolidated plan is due. By notice

published in the Federal Register on

January 13, 2017, at 82 FR 4388, HUD

announced the renewal of approval of

the Assessment Tool for use by local

governments that receive Community

Development Block Grants (CDBG),

HOME Investment Partnerships Program

(HOME), Emergency Solutions Grants

(ESG), or Housing Opportunities for

Persons With AIDS (HOPWA) formula

funding from HUD when conducting

and submitting their own AFH, and in

some joint and regional collaborations,

as explained in that notice. This

Assessment Tool is referred to as the

Assessment of Fair Housing Tool for

Local Governments.

This notice extends the deadline for

submission of an Assessment of Fair

Housing (AFH) to all local government

consolidated plan program participants

until their next AFH submission

deadline that falls after October 31,

2020. (See 24 CFR 5.160(a) for

information about how to calculate a

program participant’s AFH submission

deadline.) The AFFH rule requires that

program participants have no less than

9 months after the publication of the

OMB-approved assessment tool to

submit their AFH. Therefore, the

Department selected the October 31,

2020 date in anticipation that it will

complete the Paperwork Reduction Act

requirements and receive OMB approval

to renew the Assessment of Fair

Housing Tool for Local Governments by

January 31, 2020. Local government

program participants will not be

required to submit an AFH using the

current OMB-approved version of the

Assessment of Fair Housing Tool for

Local Governments (OMB Control No:

2529–0054), but must continue to

comply with existing statutory

obligations to affirmatively further fair

housing. (See 42 U.S.C. 3608.) Local

government program participants who

qualified for an extension under the

October 24, 2016 notice are also covered

by this notice, extending their deadline

for submission of an AFH to their next

AFH submission deadline (See 24 CFR

5.160(a).) that falls after October 31,

2020.

Based on the initial AFH reviews,

HUD believes that program participants

need additional time and technical

assistance to adjust to the new AFFH

process and complete AFH submissions

that can be accepted by HUD. HUD’s

decision is informed by the review of

AFH submissions received. Based on

the first 49 AFH initial submissions that

received a determination of accept, non-

accept, or deemed accepted from HUD,

the Department found that many

program participants are striving to

meet the requirements of the AFFH rule.

In 2017, the Department conducted an

evaluation of these submissions and

found that more than a third (35%) were

initially non-accepted.

HUD’s analysis identified several

reasons that merit a delay of AFH

submission deadlines, including

program participants’ need for

additional technical assistance. HUD

determined that many program

participants struggled to meet the

regulatory requirements of the AFFH

rule, such as developing goals that

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

685

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

Please refer to HUD’s 2017 interim guidance for

additional information on collaboration,

specifically the Q&A captioned: ‘‘How can States

Collaborate with Local Governments or PHAs?’’.

The guidance is available at: https://

www.hudexchange.info/resources/documents/

Interim-Guidance-for-Program-Participants-on-

Status-of-Assessment-Tools-and-Submission-

Options pdf. This guidance is generally applicable

to all types of program participants.

could be reasonably expected to result

in meaningful actions to overcome the

effects of contributing factors and

related fair housing issues. Further,

program participants struggled to

develop metrics and milestones that

would measure their progress as they

affirmatively furthering fair housing.

HUD determined that program

participants’ frequent misunderstanding

of how to set clear goals, metrics, and

milestones that addressed their

identified contributing factors and

related fair housing issues often resulted

in non-accepted AFHs. HUD believes

that additional technical assistance may

result in program participants better

understanding their obligations under

the AFFH rule. HUD also believes that

by enhancing its technical assistance

that resources expended by program

participants will be reduced because

they are more likely to submit an initial

AFH that can be accepted by HUD.

Additionally, HUD determined that

significant staff resources are required

when deciding that an AFH will not be

accepted because it is inconsistent with

fair housing or civil rights requirements

or substantially incomplete, or both.

(See 24 CFR 5.162 (a)(2)(b).) HUD

believes that it can reduce the resources

expended by program participants by

examining and revising its technical

assistance content and methods of

delivery so that program participants’

AFHs are more likely to meet the

regulatory requirements on first

submission.

In order to reduce burden for program

participants in conducting AFHs that

meet the regulatory requirements, HUD,

in the AFFH rule, encourages program

participants to share resources and to

address fair housing issues from a

broader perspective by collaborating

and submitting a single AFH.

Nonetheless, HUD believes that some

joint and regional collaborations that

were non-accepted on their first

submission may have benefited from

technical assistance early in the process.

For example, the largest regional AFH

submitted to HUD consisted of 19

program participants. In its review of

the AFH, HUD determined that each of

the 19 program participants met the

regulatory standards for nonacceptance.

HUD believes that improving technical

assistance for collaborative AFHs will

enable collaborations to more efficiently

use their resources to address fair

housing issues that cross jurisdictional

boundaries.

Based on the initial AFH reviews,

HUD believes that local government

program participants need additional

time and technical assistance from HUD

to adjust to the new AFFH process and

complete acceptable AFH submissions.

HUD also believes it can use this time

to improve its Data and Mapping Tool

(AFFH–T) and the User Interface

(AFFH–UI). The extension period

allows HUD to further refine its

materials to provide additional guidance

to program participants. Finally, this

extension allows HUD staff to devote

additional time to providing program

participants, and program participants

in an AFH collaboration, with technical

assistance on the legal objective to

affirmatively further fair housing.

Consolidated plan program

participants must continue to comply

with existing, ongoing obligations to

affirmatively further fair housing. Until

a consolidated plan program participant

is required to submit an AFH, it will

continue to provide the AFFH

Consolidated plan certification in

accordance with the requirements that

existed prior to August 17, 2015. See 24

CFR 5.160(a)(3). The requirements

obligated a program participant to

certify that it will affirmatively further

fair housing, which means that it will

conduct an analysis of impediments (AI)

to fair housing choice within the

jurisdiction, take appropriate actions to

overcome the effects of any

impediments identified through that

analysis, and maintain records reflecting

the analysis and actions.

For Consolidated plan program

participants that are starting a new 3–5-

year Consolidated plan cycle that begins

before their due date for an AFH, the AI

should continue to be updated in

accordance with the HUD, Fair Housing

Planning Guide (1996), 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.

Program participants that have

already submitted an AFH which has

been accepted by HUD must continue to

execute the goals of that accepted AFH

and are not required to conduct a

separate AI. 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 re-

submit 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 non-

accept but will no longer be required to

resubmit their AFH, are still required to

prepare an AI, as described above in this

notice.

HUD is issuing this notice for

applicability immediately upon

publication. Program participants must

continue to affirmatively further fair

housing as required by the Fair Housing

Act. 42 U.S.C. 3608.

Although HUD is issuing this notice

for applicability immediately upon

publication, it also invites public

comment for a period of 60-days on the

extension. HUD will consider all the

comments in its ongoing process of

reviewing the Assessment of Fair

Housing Tool for Local Governments.

Dated: January 2, 2018.

Anna Maria Farı

as,

Assistant Secretary for Fair Housing and

Equal Opportunity.

[FR Doc. 2018–00106 Filed 1–4–18; 8:45 am]

BILLING CODE 4210–67–P

DEPARTMENT OF THE INTERIOR

Bureau of Ocean Energy Management

[Docket No. BOEM–2017–0020]

Outer Continental Shelf Official

Protraction Diagrams MMAA104000

AGENCY

: Bureau of Ocean Energy

Management, Interior.

ACTION

: Availability of World Geodetic

System Datum of 1984 Outer

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