The three organizations that sued HUD over indefinitely suspending implementation of the Affirmatively Furthering Fair Housing (AFFH) regulation (see Memo, 5/14) filed a motion asking the Court to set aside its adverse decision and to allow the plaintiffs to amend their legal complaint. The plaintiffs assert that the Court misunderstood key elements of the AFFH and Consolidated Plan processes, which led to the Court finding that the plaintiffs did not have standing to sue (see Memo, 8/20). If successful, these motions could lead to a re-argument of the case or to an appeal.
Much of the Court’s decision rested on its conclusion that certain portions of the AFFH rule “remain active” even though HUD suspended the Assessment of Fair Housing (AFH) process. Consequently, the Court decided that the plaintiffs were not perceptibly harmed and did not have standing to sue. Specifically, the Court thought that the AFFH rule’s definition of “affirmatively furthering fair housing” and modifications to the Consolidated Plan community participation provisions were in effect. The plaintiffs ask the Court to set aside its judgement due to the Court’s flawed understanding of that AFFH definition and the Consolidated Plan process, and because the provisions that the Court concluded “remain active” were never raised by HUD, preventing the plaintiffs from responding to such a conclusion.
Definition of Affirmatively Furthering Fair Housing. Prior to the AFFH rule, the Consolidated Plan rule required jurisdictions to “certify” that they were affirmatively further fair housing, which merely meant they would have an Analysis of Impediments (AI) to fair housing choice, would take appropriate actions to overcome impediments, and would keep records of those actions. There was no guidance about what might constitute an “impediment” or what an “appropriate” action might be.
Because the AFFH rule’s definition was somewhat clearer, the Court concluded that the AI process would be “more robust” than it had been in the past. As the plaintiffs note, in one of the May 23, 2018 Federal Register notices suspending the AFH, HUD did not direct jurisdictions to conform to the new AFFH definition or emphasize how it changed the AI process. Instead, HUD directed jurisdictions to revert to the flawed AI process that existed before the AFFH rule went into effect.
The plaintiffs also contend that HUD did not provide anything in the record to the Court that would lead to the conclusion that the AFFH rule’s definition “has any binding real-world effect on local jurisdictions’ conduct following HUD’s suspension of the AFH process.” Further, the plaintiffs write, “even if HUD had instructed local jurisdictions to consult that definition – and the notice is best read to do the opposite – without the AFH process, the modified definition compels no specific action by any jurisdiction, and HUD does not claim to apply the standards in that definition as it reviews jurisdictions’ annual certifications of compliance.”
Consolidated Plan Community Participation Provisions. The Consolidated Plan (ConPlan) rule did not have any text referring to fair housing or the AI, other than a “certification.” The AFFH rule modified the ConPlan rule in multiple places to include text specifically requiring jurisdictions to provide for and encourage community participation in the development and implementation of the AFH. With HUD’s suspension of the AFH, the ConPlan rule effectively reverts to its 1995 text.
Nevertheless, the Court found that the public participation requirements of the ConPlan process could make up for the loss of such requirements in the now-suspended AFH process. The plaintiffs claim that HUD never argued that the ConPlan rule adequately provided for community participation pertaining to fair housing; consequently, the plaintiffs could not address such claims. The plaintiffs’ amended complaint makes clear that a separate community participation process for the AFH is essential because the ConPlan process is not designed to address the same concerns as the AFH process. They assert that participation in the ConPlan process cannot effectively advance fair housing because, without an accepted AFH, there are no identified fair housing goals to inform the ConPlan.
HUD’s Role in the Consolidated Plan Oversight. The Court also found that HUD “remains engaged in reviewing program participants’ [AFFH] certification efforts” through the ConPlan process. Consequently, HUD’s continued review of ConPlans would be an adequate substitute for the suspension of HUD review of AFHs as a means for HUD to ensure compliance with AFFH obligations. The plaintiffs assert that HUD did not argue this point and that if HUD wishes to, it must produce the administrative record to enable adjudication of whether the ConPlan process in fact involves meaningful review of compliance with AFFH obligations.
The plaintiffs’ motion to amend is at: https://bit.ly/2zrqwLI
The Second Amended Complaint is at: https://bit.ly/2xM7Sfq
More information about AFFH is on page 7-5 of NLIHC’s 2018 Advocates’ Guide.