UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · Plaintiffs, Civ. Action No. 1:18-cv-01076-BAH STATE OF NEW YORK, Proposed Intervenor-Plaintiff, v. BEN CARSON, Secretary of

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL FAIR HOUSING ALLIANCE, TEXAS LOW INCOME HOUSING INFORMATION SERVICE, and TEXAS APPLESEED,

Plaintiffs, Civ. Action No. 1:18-cv-01076-BAH

STATE OF NEW YORK,

Proposed Intervenor-Plaintiff,

v. BEN CARSON, Secretary of the U.S. Department of Housing and Urban Development, in his official capacity,

and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants.

MOTION TO INTERVENE IN SUPPORT OF PLAINTIFFS

BY THE STATE OF NEW YORK

For the reasons set forth in the accompanying Memorandum of Law, Proposed Plaintiff-

Intervenor the State of New York respectfully moves this Court for leave to intervene as of right

in the above-captioned action pursuant to Federal Rule of Civil Procedure 24(a). In the

alternative, the State of New York moves for permissive intervention pursuant to Federal Rule of

Civil Procedure 24(b).

Pursuant to Local Civil Rule 7(m), counsel for the State of New York conferred with

counsel for Defendants and Plaintiffs to ascertain their position on this motion. Counsel for

Case 1:18-cv-01076-BAH Document 24 Filed 06/05/18 Page 1 of 3

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Defendants advised that he was unable to take a position on this motion without reviewing a pre-

filing draft of the motion, and reserved the right to oppose. Counsel for Plaintiffs advised that

they consent to the motion on the condition that it not delay the Court’s consideration of

Plaintiffs’ pending motion for a preliminary injunction and expedited summary judgment.

Pursuant to Local Rule 7(c), a proposed order is attached.

Dated: June 5, 2018

STEVEN C. WU Deputy Solicitor General JUDITH N. VALE Senior Assistant Solicitor General LOURDES ROSADO Bureau Chief, Civil Rights JESSICA ATTIE Special Counsel LILIA TOSON Assistant Attorney General Of Counsel

Respectfully submitted,

BARBARA D. UNDERWOOD Attorney General State of New York By: /s/ Matthew Colangelo Matthew Colangelo (D.C. Bar No. 997893) Executive Deputy Attorney General Office of the New York State Attorney General 28 Liberty Street, 19th Floor New York, NY 10005 Phone: (212) 416-6057 [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of June, 2018, I electronically filed the foregoing

Motion to Intervene, a supporting Memorandum of Law, a proposed Complaint in Intervention,

and a proposed order with the Clerk of the District Court using the CM/ECF system, which will

send notification of such filing to counsel of record in this proceeding.

Dated: June 5, 2018

/s/ Matthew Colangelo Matthew Colangelo (D.C. Bar No. 997893) Executive Deputy Attorney General Office of the New York State Attorney General 28 Liberty Street, 19th Floor New York, NY 10005 Phone: (212) 416-6057 [email protected]


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STATE OF NEW YORK, COMPLAINT IN INTERVENTION




Defendants.

INTRODUCTION

1. Proposed Intervenor-Plaintiff the State of New York challenges Defendants’

arbitrary and unlawful decision to suspend a key fair-housing rule that directed HUD program

participants to take actions to promote truly balanced and integrated living patterns, promote

greater fair-housing opportunity, overcome longstanding patterns of residential segregation, and

foster inclusive communities that are free from discrimination.

2. The Fair Housing Act of 1968 requires the Secretary of Housing and Urban

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

development in a manner affirmatively to further the policies” of the Act. 42 U.S.C.

Case 1:18-cv-01076-BAH Document 24-2 Filed 06/05/18 Page 1 of 22

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§ 3608(e)(5). This mandate requires HUD to “use its grant programs to assist in ending

discrimination and segregation, to the point where the supply of genuinely open housing

increases.” NAACP v. HUD, 817 F.2d 149, 155 (1st Cir. 1987).

3. As both HUD and the Government Accountability Office have found, the system

in place to ensure that HUD grantees complied with this “affirmatively furthering fair housing”

(AFFH) requirement was long ineffective in achieving Congress’s goals, in part because HUD

failed to provide concrete guidance, assistance, and feedback to state and local government

entities regarding fair-housing planning.

4. In 2009, HUD began a comprehensive process to develop a more effective AFFH

regime. This reexamination culminated in the 2015 promulgation of a final rule through notice-

and-comment rulemaking (the “AFFH Rule”). Affirmatively Furthering Fair Housing; Final

Rule, 80 Fed. Reg. 42,272 (July 16, 2015).

5. The AFFH Rule requires every covered jurisdiction to develop, submit for HUD

review, and implement a planning document—called an Assessment of Fair Housing (AFH)—

that identifies local barriers to fair housing and actionable plans to address those barriers.

Jurisdictions create these AFH plans by using an Assessment Tool created and published by

HUD; HUD must then approve compliant AFHs, or reject those not meeting specified

requirements and require the submission of revised, compliant versions.

6. The AFFH Rule has already yielded meaningful results in the approximately two

years since it became effective. For example, jurisdictions that have received HUD approval of

their submitted AFHs, such as New Rochelle, New York, have committed to concrete reforms

that will improve the lives of their most vulnerable residents and create more integrated,

inclusive communities.


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7. However, 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 (“the January Suspension Rule”), that it would not

review the AFHs that jurisdictions had already submitted, and that it would not require revision

and resubmission of rejected AFHs. Put simply, HUD abandoned the AFFH Rule and withdrew

important assistance for local governments analyzing and correcting local fair-housing issues—

including for local jurisdictions in New York State.

8. On May 23, 2018, after Plaintiffs filed this lawsuit, HUD published three notices

related to the AFFH Rule (together, “the May Suspension Rule”). First, HUD withdrew the

Assessment Tool, making it impossible for local jurisdictions to submit AFH plans. 83 Fed.

Reg. 23,922 (May 23, 2018). Second, HUD directed jurisdictions to revert to the Analysis of

Impediments to Fair Housing Choice (AI) process that pre-dated the AFFH Rule. 83 Fed. Reg.

23,927 (May 23, 2018). Third, HUD withdrew the January 2018 Notice. 83 Fed. Reg. 23,928

(May 23, 2018). Collectively, these notices have the effect of suspending the AFFH Rule and

delaying compliance with its deadlines indefinitely. HUD took these actions without prior notice

or opportunity for comment.

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

to New York and its residents by frustrating the ability of the State and its local jurisdictions to

receive technical assistance and feedback from HUD regarding their statutory obligation to

affirmatively further fair housing; by making their operations less efficient, more costly, and less

effective; and by contributing to the continuation of housing segregation and other barriers to fair

housing that harm New York and its residents.

10. The State of New York intervenes in this suit to challenge Defendants’ indefinite


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suspension of the AFFH Rule because it is without observance of procedure required by law, in

violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(D); is arbitrary and

capricious under the APA, 5 U.S.C. § 706(2)(A); and is otherwise not in accordance with law

because it is inconsistent with Defendant’s obligations under the Fair Housing Act, see 5 U.S.C.

§ 706(2)(A); 42 U.S.C. §§ 3608(d), (e)(5).

PARTIES

11. Proposed Intervenor-Plaintiff the State of New York, represented by and through

its Attorney General, is a sovereign state of the United States of America. The Attorney General

is New York State’s chief law enforcement officer and is authorized to pursue this action

pursuant to N.Y. Executive Law § 63. New York is both subject to and a beneficiary of the

AFFH Rule, which imposes direct obligations on the State and multiple political subdivisions

within it.

12. New York is aggrieved by Defendants’ actions and has standing to bring this

action because the decision to suspend the AFFH Rule, including by withdrawing the

Assessment Tool and reinstating the AI process, has damaged New York’s quasi-sovereign and

proprietary interests and will continue to cause injury unless and until the decision is enjoined.

13. Defendant U.S. Department of Housing and Urban Development is a cabinet

agency within the executive branch of the United States, and is an agency within the meaning of

5 U.S.C. § 552(f). HUD is responsible for administering a variety of federally funded programs

and activities and for ensuring that federal programs and activities relating to housing and urban

development affirmatively further fair housing.

14. Defendant Ben Carson is the Secretary of HUD and is sued in his official

capacity.


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JURISDICTION AND VENUE

15. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and

2201(a). Jurisdiction is also proper under the judicial review provisions of the APA, 5 U.S.C.

§ 702.

16. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and

2202.

17. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (e)(1).

Defendants are United States agencies or officers sued in their official capacities; Defendants

reside in this District; and a substantial part of the events giving rise to this action occurred in the

District.

FACTUAL ALLEGATIONS

18. HUD administers several different programs that provide federal funds to state

and local government entities for housing and urban development purposes. New York State

receives grants from HUD through several such programs. Forty-nine large counties and

municipalities in New York State are HUD entitlement communities, which receive funding

directly from HUD and manage their relevant programs independently. The remainder of the

counties and municipalities in the State must apply to New York State for grants and become

subrecipients of HUD funding.

19. These local jurisdictions, as well as New York, are required to certify as a

condition of receiving federal funds that they will affirmatively further fair housing. 42 U.S.C.

§§ 5304(b)(2), 5306(d)(7)(B), 12705(b)(15), 1437c-1(d)(16). They are also required to submit a

Consolidated Plan every three to five years that summarizes, among other things, the specific

actions that the jurisdiction will undertake each year to address its housing needs, and the


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specific federal and non-federal resources that the jurisdiction will use to undertake such actions.

See generally 24 C.F.R. part 91; see also 24 C.F.R. part 903.

A. The Analysis of Impediments to Fair Housing Choice.

20. Before the promulgation of the Affirmatively Furthering Fair Housing Rule in

2015, HUD had largely failed to give state and local jurisdictions support to satisfy their

obligations to further housing integration and choice. For several decades after the Fair Housing

Act’s enactment, HUD did not provide any meaningful regulatory guidance about how to further

fair housing affirmatively.

21. Starting in 1996, to receive block grant funding, HUD required entitlement

jurisdictions to certify to HUD in a Consolidated Plan that they had conducted an analysis to

identify impediments to fair housing within their jurisdiction, and had prepared a planning

document—known as an Analysis of Impediments to Fair Housing Choice (AI)—reflecting that

analysis. See 60 Fed. Reg. 1878, 1890-91, 1895 (Jan. 5, 1995). Grantees were also required to

certify that they would take appropriate actions to overcome the impediments identified in the

AI. See id. at 1912.

22. The AI process suffered from multiple, significant flaws that undermined state

and local jurisdictions’ ability to identify and overcome obstacles to fair housing. For example,

HUD failed to define the scope of grantees’ obligation to “further fair housing affirmatively”—

leaving state and local jurisdictions without sufficient guidance on how to achieve that goal.

HUD also failed to provide state and local jurisdictions with any specifics about the substantive

components that they should include in an AI plan. See United States Government

Accountability Office, HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’

Fair Housing Plans (GAO Report) 6 (Sept. 2010). Although HUD issued informal


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recommendations about the content of an AI, these suggestions lacked the force, clarity, and

binding effect of duly promulgated regulations. See id.

23. The AI regime also did not provide jurisdictions with demographic data or

analytical tools to help them undertake the complex process of analyzing impediments to fair

housing. See AFFH Rule, 80 Fed. Reg. at 42,275. Nor did HUD review the AI planning reports

to provide feedback and guidance on whether jurisdictions had successfully identified

impediments to fair housing or identified meaningful steps to address such impediments. Id.; see

also GAO Report 6.

24. As HUD itself concluded in 2009, these and other shortcomings rendered the AI

process ineffective as a means of empowering jurisdictions to conduct rigorous analyses of

segregated housing patterns and develop actionable plans to address them. See GAO Report 1-2

(describing HUD evaluation).

25. In 2010, the United States Government Accountability Office likewise determined

that the AI process was ineffective. Based in large part on HUD’s lack of regulatory guidance

and oversight, GAO concluded that many AIs were “not likely to serve as effective planning

documents to identify and address current potential impediments to fair housing choice.” GAO

Report 32. As GAO emphasized, HUD was not providing program participants with the

regulatory guidance, technical assistance, or data to prepare effective fair-housing plans. See id.

at 22-32; AFFH Rule, 80 Fed. Reg. at 42,275. GAO concluded that if HUD did not implement

changes to its fair-housing assessment process, jurisdictions’ fair-housing planning documents

would “likely continue to add limited value going forward in terms of eliminating potential

impediments to fair housing that may exist across the country.” GAO Report 31.

26. HUD ultimately agreed that the AI system had “not been as effective as originally


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envisioned” in carrying out Congress’s mandate to further fair housing affirmatively. AFFH

Rule, 80 Fed. Reg. at 42,272; see id. at 42,273-75.

27. Many jurisdictions in New York also found the AI regime lacking and not

conducive to furthering comprehensive fair-housing planning. For example, New York City

found HUD’s 1996 guidance lacking, particularly regarding HUD’s expectations for how to

undertake the analysis contained in an AI.

28. As part of its own AI planning process, in 2016, New York State Homes and

Community Renewal (NYSHCR)—a state agency with the mission to build, preserve, and

protect affordable housing and increase home ownership across New York State—evaluated the

AI documents prepared by all of the entitlement communities in the State (except New York

City) and found that many of these jurisdictions’ AIs were outdated, incomplete, or otherwise

deficient. NYSHCR determined, among other findings, that many local AIs did not:

(a) adequately analyze local impediments to fair housing choice and identify meaningful actions

to address these barriers; (b) reflect sufficient outreach to minorities and members of other

protected classes under the Fair Housing Act in the development of the AI; (c) demonstrate an

understanding of fair-housing issues and laws; (d) contain an adequate level of data analysis to

fully assess the existence of demographic and housing trends and conditions that

disproportionately impact members of protected classes; or (e) include an adequate level of

policy analysis and its impact on protected classes. Additionally, NYSHCR determined that

most jurisdictions did not review their previous AIs and include the progress achieved (or not

achieved) on their previous goals in the development of new and continuing strategies to

affirmatively further fair housing.


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B. The Affirmatively Furthering Fair Housing Rule.

29. After an extensive six-year planning process, HUD issued the Affirmatively

Furthering Fair Housing Rule in July 2015 to remedy the problems with the prior AI process.

The core provisions of the AFFH Rule set forth a detailed regulatory system under which HUD

grantees will prepare an Assessment of Fair Housing (AFH)—a more fulsome and data-driven

fair-housing planning document than was required under the former AI process. See AFFH Rule,

80 Fed. Reg. at 42,272-73.

30. As HUD explained, the AFFH Rule would replace the AI process “with a more

effective and standardized” assessment of fair-housing issues “designed to empower program

participants” to overcome historic patterns of segregation, reduce racial or ethnic concentrations

of poverty, and respond to disproportionate housing needs. Id. at 42,273.

31. To achieve these goals, the Rule sets forth many detailed provisions about the

AFH planning process and the assistance that HUD would provide to jurisdictions in completing

that process. For example, for the first time, HUD provided an express definition of the statutory

obligation to affirmatively further fair housing, interpreting that obligation to mean: “[T]aking

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.”

Id. at 42,316.

32. The AFFH Rule also specifies in greater detail the substantive elements that all

jurisdictions must include in an AFH—including an assessment of data to evaluate fair-housing

issues, an identification of factors that contribute to such issues, and a list of goals for


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overcoming the detrimental effects of those contributing factors. Id. at 42,355-56.

33. The Rule further details the public-participation process that jurisdictions should

engage in to assist them in gathering information and identifying the factors that contribute to

such fair-housing problems. See id. at 42,290, 42,360-62.

34. The AFFH Rule also establishes a system for program participants to submit their

AFHs to HUD for acceptance and for HUD to review each AFH and provide feedback about any

improvements needed for HUD to accept the AFH. Id. at 42,272, 42,275, 42,285-86; see also

HUD, Guidance on HUD’s Review of Assessments of Fair Housing (“HUD Review Guide”)

(July 6, 2016).

35. To assist jurisdictions in preparing a robust and effective AFH, the AFFH Rule

committed HUD to providing grantees with informational tools, demographic data, and technical

guidance about using such tools and data. AFFH Rule, 80 Fed. Reg. at 42,272. For example, the

AFFH Rule required HUD to create—and required grantees to use—an Assessment Tool that

aids jurisdictions in conducting the required fair-housing assessment. Id. The Assessment Tool

does so by asking a “series of questions that program participants must respond to in carrying out

an assessment of fair housing issues and contributing factors, and setting meaningful fair housing

goals.” 81 Fed. Reg. 15,546, 15,547 (Mar. 17, 2016). Recognizing that different types of

grantees face different fair-housing considerations, HUD committed to creating separate

Assessment Tools for local jurisdictions (such as cities and counties), States, and Public Housing

Authorities. See AFFH Rule, 80 Fed. Reg. at 42,276.

36. The AFFH Rule also requires HUD to provide jurisdictions with demographic

data about “integrated and segregated living patterns, racially or ethnically concentrated areas of

poverty, the location of certain publicly supported housing, access to opportunity afforded by


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key community assets, and disproportionate housing needs.” Id. at 42,272. The AFFH Rule

further committed HUD to work with jurisdictions and provide them with substantive and

technical assistance in using the Assessment Tools, analyzing data, and preparing a successful

AFH. Id. at 42,272-73, 42,287-90.

37. HUD required jurisdictions to begin complying with the AFFH Rule and submit

their first AFHs on a staggered schedule linked to the preexisting deadline by which a

jurisdiction must submit its Consolidated Plan. Under the schedule, a small number of

jurisdictions were required to submit their first AFH by 2018, with increasing numbers of

jurisdictions slated to file their initial AFHs between 2019 and October 2020.

38. Because HUD was still finalizing the Assessment Tools when it issued the AFFH

Rule, the Rule also linked a jurisdiction’s initial AFH submission deadline to the date on which

HUD first announces the availability of the Assessment Tool applicable to a particular

jurisdiction. Specifically, the AFFH Rule provides that a jurisdiction’s first AFH submission

deadline will be no less than nine months after the date that HUD publishes the Assessment Tool

for that jurisdiction. Id. at 42,357. As HUD explained, a program participant’s compliance

obligations and deadline become effective when HUD announces in the Federal Register that the

Assessment Tool applicable to that participant has been approved by the Office of Management

and Budget (OMB) and is available for use. Id. at 42,277; see 80 Fed. Reg. 81,840, 81,841 (Dec.

31, 2015) (“The action that commences the [compliance deadline] is issuance of an approved

Final Assessment Tool for the specific category of program participants.”).

39. In December 2015, HUD published a notice in the Federal Register announcing

that the Assessment Tool for local jurisdictions had been approved by OMB and was available

for use—thus triggering local jurisdictions’ obligation to comply with the AFFH Rule and


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submit their first AFHs under the staggered compliance schedule. 80 Fed. Reg. at 81,840-41.

40. Because the initial approval of the Assessment Tool lasted for one year, OMB

subsequently renewed its approval for a three-year period, beginning in January 2017. See 82

Fed. Reg. 4388, 4388 (Jan. 13, 2017). This approval process again involved two public notice-

and-comment periods. In response to the comments it had received, HUD made further

clarifications and modifications to the Assessment Tool and its instructions. See id. at 4390-

4403. HUD also determined that the Assessment Tool successfully empowers jurisdictions to

perform a meaningful fair-housing assessment, “clearly conveys the analysis of fair housing

issues and contributing factors that program participants must undertake,” and “better

implements” the Fair Housing Act’s mandate to affirmatively further fair housing. Id. at 4390.

C. New York State and Local Jurisdictions’ Implementation of the AFFH Rule.

41. After the AFFH Rule went into effect in August 2015 and the local jurisdiction

Assessment Tool received OMB approval in December 2015, many state and local jurisdictions

began to undertake the AFH process set forth in the Rule.

42. For example, the State of New York—through NYSHCR—followed parts of the

AFFH Rule in preparing a 262-page fair-housing planning document that was completed in

January 2016. See generally NYSHCR, New York State Entitlement Jurisdiction Analysis of

Impediments to Fair Housing Choice (2016). Although not formally required to follow the

AFFH Rule then, New York nonetheless did so as much as feasible to take advantage of the

Rule’s improved processes.

43. New York also benefited from HUD technical assistance and training efforts. For

example, a representative of NYSHCR attended a two-day training on the AFH process, which

he found to contain useful feedback from those who had completed the AFH process previously.

He also found HUD staff accessible for questions. The NYSHCR representative was confident


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that one could complete an AFH after the training.

44. New York City also began updating its fair-housing planning process to adapt to

the guidance and instructions laid out in the tool. See Comment Letter from N.Y. City Dep’t of

Hous. Pres. & Dev. to HUD (Mar. 2, 2018), https://www.regulations.gov/document?D=HUD-

2018-0001-0013. Several New York City planning employees also attended the two-day training

on the AFH process, which they found to be instructive as they prepared to complete the AFH

process. New York City employees also asked questions of HUD representatives and received

answers both about HUD data and about the substantive requirements of the AFFH Rule.

45. Some local jurisdictions in New York, including the City of New Rochelle,

completed an AFH using the Assessment Tool, submitted the AFH to HUD by the required

deadline, and received an acceptance decision from HUD. In completing its AFH, New Rochelle

found HUD data useful. New Rochelle also found HUD personnel very accessible and HUD

staff helpful in providing technical assistance and feedback during the AFH process. Staff from

HUD’s New York regional office visited New Rochelle to assist with the process.

46. New York’s experiences demonstrate that a detailed, fact-driven evaluation is

important for identifying the different fair-housing issues that a particular jurisdiction may face,

and that the time and effort required to complete such an evaluation is not a function of the

AFFH Rule or the Assessment Tool—but rather of the complexity of the fair-housing issues

involved.

47. New York City, for example, acknowledges that the AFH process requires

investments of time and money, among other things, but believes the process is worth the

expenditures because of the tangible benefits it can produce both for the City and the individuals

residing within it.


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D. HUD’s Suspension of the AFFH Rule.

48. Despite the extensive efforts by state and local jurisdictions to comply with the

AFFH Rule, HUD abruptly suspended key provisions of the AFFH Rule on January 5, 2018. See

Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of

Fair Housing for Consolidated Plan Participants (the “January Suspension Rule”), 83 Fed. Reg.

683 (Jan. 5. 2018). The January Suspension Rule declared that local jurisdictions would no

longer need to submit an AFH until their next compliance deadline that falls after October 31,

2020, which resulted in most local jurisdictions not being required to submit an AFH until 2024.

Id. at 684. HUD also stated that it would no longer review AFHs, and that jurisdictions should

return to the former AI process—a regime that HUD had determined was less effective than the

AFH process. 83 Fed. Reg. at 685. HUD did not conduct any public notice-and-comment

procedures before issuing the January Suspension Rule.

49. In May 2018, approximately two weeks after plaintiffs filed this lawsuit, HUD

issued three notices—again without having completed public notice-and-comment procedures—

that again suspended key provisions of the AFFH Rule, this time indefinitely (the “May

Suspension Rule”). First, defendants issued a notice withdrawing the January Suspension Rule.

83 Fed. Reg. 2,928 (May 23, 2018). In this notice, HUD stated that it would publish a notice of

proposed rulemaking and engage in public notice-and-comment procedures if it were to conclude

in the future that it should revise the AFFH Rule, including by altering the AFH compliance

deadlines for jurisdictions. Id.

50. Second, HUD simultaneously issued another notice withdrawing the already-

approved Assessment Tool for local jurisdictions—without having engaged in any public notice

and comment. 83 Fed. Reg. 23,922 (May 23, 2018). And HUD declared that this withdrawal of


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the tool indefinitely suspended implementation of the AFFH Rule for local jurisdictions by

extending the deadlines by which local jurisdictions would be required to submit their initial

AFHs until at least nine months after HUD issues a “future publication of a revised and

approved” Assessment Tool. Id. at 23,926.

51. Finally, HUD issued a third notice making clear that the withdrawal of the

Assessment Tool would have the same substantive effects as the prior January Suspension Rule,

that is, local jurisdictions would no longer be required to comply with the AFFH Rule and would

instead return to the prior AI process that GAO and HUD had found to be ineffective. 83 Fed.

Reg. 23,927, 23,927-28 (May 23, 2018); see also 83 Fed. Reg. at 23,926.

52. HUD asserted that it was withdrawing the Assessment Tool and suspending

compliance with the AFFH Rule because the Assessment Tool was “unworkable” and “unduly

burdensome.” 83 Fed. Reg. at 23,923. HUD provided two reasons for this assertion. First, HUD

claimed that the Assessment Tool was to blame for HUD’s decision to decline to approve a few

jurisdictions’ initial AFHs. Id. at 23,923. Second, HUD claimed that the level of technical

assistance that it had provided to early AFH submitters could not “be scaled up to accommodate”

the increased number of local jurisdictions with AFH submission deadlines in 2018 and 2019. Id.

HUD did not address any alternatives to withdrawing the Assessment Tool and suspending the

AFFH Rule, such as making incremental changes to the Assessment Tool while allowing local

jurisdictions to continue using the Tool and complying with the AFFH Rule.

53. In suspending the AFFH Rule, HUD did not acknowledge or discuss that nearly

all jurisdictions participating in the process required by the AFFH Rule to date were able to

submit a compliant Assessment of Fair Housing that HUD accepted following review. HUD

also failed to consider the significant improvements to fair-housing planning and implementation


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that the AFFH Rule had already generated through increased commitment and concrete action by

local jurisdictions to further fair housing. HUD also ignored its own earlier factual findings that

the AI process was insufficient to promote compliance with grantees’ obligations to affirmatively

further fair housing.

E. New York Will Be Injured by Defendants’ Action.

54. New York is harmed by Defendants’ decision to suspend the AFFH Rule.

55. New York State, through NYSHCR, administers CDBG and other HUD block-

grant funds from the HOME Investment Partnerships program to non-entitlement jurisdictions

and has an obligation to affirmatively further fair housing.

56. New York State administers other HUD block-grant funds through the Office of

Temporary and Disability Assistance.

57. In addition to sending employees to HUD trainings, NYSHCR devoted

considerable resources to incorporating parts of an AFH plan into its last AI in anticipation of the

Rule’s requirements. NYSCHR would have sought to use HUD-provided data to complete the

analysis for its AFH plan due in 2021. Due to suspension of the Rule, NYSCHR can no longer

rely on the timely availability of that data. Thus, HUD’s suspension of the Rule’s requirements,

if not enjoined, will require NYSHCR to expend more resources on obtaining and analyzing data

to ensure it is affirmatively furthering fair housing.

58. Additionally, New York State has a statewide obligation to affirmatively further

fair housing. Because of that, NYSCHR reviews the data, analysis, and goals of the entitlement

jurisdictions within its borders as part of its planning processes.1 This information informs New

1 New York State Entitlement Jurisdiction Analysis of Impediments to Fair Housing

Choice (Jan. 29, 2016), available at: http://www.nyshcr.org/aboutus/publications/NYSEJ-AI-2016.pdf, 7, 237-48.


17

York State as to how it will comply with its statutory mandate to affirmatively further fair

housing.

59. The suspension of the AFFH Rule’s requirements frustrates New York State’s

own ability to identify barriers to housing and affirmatively further fair housing statewide. New

York State is reliant on the work done by local municipalities to actively identify and address

impediments to housing and contributing factors to residential segregation. In the past, NYSCHR

found many AIs lacking and noted that “technical assistance should be provided” to local

governments to assist them with the process.2 NYSHCR’s work to increase access to affordable

housing, decrease racially concentrated areas of poverty, and develop multifamily housing in

historically segregated, low-poverty areas with well performing schools, is frustrated by the

inadequate AI system, which lacks a structured decision-making process. The lacking oversight

by HUD and the withdrawal of the Assessment Tool only compounds this problem.

60. NYSHCR’s ability to affirmatively further fair housing, on the other hand, would

be strengthened by the robust AFH planning process. The AFFH Rule’s standardized process and

formalized rules would make it much simpler for NYSCHR to analyze local government plans,

improving NYSCHR’s operations and making them less resource-intensive.

61. Moreover, NYSCHR planned to use the local government AFH plans to

determine gaps in responses to issues plaguing different areas and geographies, and develop

strategies to address such gaps statewide and with state resources. NYSCHR would use the

actionable items from the local government AFH plans, for example, to create regional and/or

coordinated plans that combine approaches and strategies from those localities.

62. Based on NYSCHR’s experience, smaller jurisdictions that have fewer resources

2 Id. at 237-46, 241.


18

to commit to gathering the information and conducting the demographic analyses needed to

evaluate fair-housing issues, goals, and priorities will no longer be able to complete the robust

AFH process without the HUD assistance contemplated by the AFFH Rule.

63. For its AFH plan due in 2021, NYSHCR would have sought (and if available will

use) the AFH plans of other New York entitlement jurisdictions. Due to HUD’s suspension of

the Rule, NYSHCR can no longer rely on the availability of that data and analysis from the

entitlement jurisdictions, and will be required to engage consultants to ensure the data obtained

from the entitlement jurisdictions is available to the extent possible during its lengthy planning

process. Even so, it is implausible at the State-level to get the granularity of analysis that would

be enabled by a local jurisdiction’s conducting its own AFH and sharing its findings with the

State.

64. Inadequate local responses to segregation harm New York State as a whole

because of their impact on State planning and State residents, in addition to other State goals.

Delays to fair-housing reforms caused by HUD’s actions will substantially injure New York’s

interests in the health and well-being of its residents. Residential segregation imposes substantial

social and economic harms on New York’s residents by preventing people from having a fair

choice of where to live and impeding their ability to access educational opportunities,

employment prospects, neighborhood infrastructure, health care, and more. For example, poor-

performing schools leave students unprepared for the labor force and undercut New York’s

economic competitiveness. Health problems from exposure to housing-related hazards or a lack

of access to basic services harm individuals, overburden medical resources, and raise healthcare

costs. And depressed home values in segregated areas of concentrated poverty lower the State’s

tax base and limit its ability to invest in building affordable housing.


19

65. HUD’s action, if not enjoined, will make New York State’s operations less

efficient, more costly, and less effective.

FIRST CAUSE OF ACTION Administrative Procedure Act – Without Observance of Procedure Required by Law

66. Proposed Intervenor-Plaintiff realleges and incorporates by reference the

allegations set forth in each of the preceding paragraphs of this Complaint.

67. Under the Administrative Procedure Act, courts shall “hold unlawful and set aside

agency action” that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

68. The APA requires that when a federal agency seeks to formulate, amend, or

repeal a rule, the agency must publish notice of the proposed rule making in the Federal Register

and “shall give interested persons an opportunity to participate in the rule making through

submission of written data, views, or arguments.” 5 U.S.C. §§ 553(b), (c); see also id. § 551(5).

69. The May 2018 Notices effectively suspended the AFFH Rule indefinitely, by

withdrawing the Assessment Tool, reinstating the AI process, and delaying until an undefined

future date the deadlines for local jurisdictions to submit an Assessment of Fair Housing.

70. In suspending the AFFH Rule indefinitely, Defendants failed to provide notice

and comment, and thereby acted “without observance of procedure required by law.” 5 U.S.C.

§ 706(2)(D).

71. Defendants’ violation causes ongoing harm to New York and its residents.

SECOND CAUSE OF ACTION Administrative Procedure Act – Arbitrary and Capricious



73. The Administrative Procedure Act provides that courts shall “hold unlawful and

set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C.


20

§ 706(2)(A).

74. Defendants’ decision to suspend the AFFH Rule through the May 2018 Notices is

arbitrary and capricious for multiple reasons. First, Defendants’ explanations for its decision run

counter to the evidence before the agency, including the evidence that nearly all jurisdictions

participating in the process required by the AFFH Rule to date were able to submit a compliant

Assessment of Fair Housing that HUD accepted following review.

75. Second, the May Suspension Rule fails entirely to consider important aspects of

the problem before the agency, including that Defendants considered only the costs of continued

implementation of the AFFH Rule without also considering the foregone benefits of indefinitely

suspending the AFFH Rule. Defendants also failed to consider reasonable alternatives to the

extreme measure of withdrawing the Assessment Tool and suspending the AFFH Rule, such as

making incremental changes to the Assessment Tool while allowing local jurisdictions to

continue using the Tool and complying with the AFFH Rule.

76. Third, the May Suspension Rule ignores or countermands Defendants’ earlier

factual findings without reasoned explanation for doing so. Defendants directed HUD grantees

to return to the AI process that HUD has itself acknowledged—on repeated instances dating back

nearly a decade—was insufficient to promote compliance with grantees’ affirmatively furthering

fair housing obligations.

77. Defendants’ decision to suspend the AFFH Rule indefinitely by withdrawing the

Assessment Tool and reinstating the AI process is therefore “arbitrary, capricious, [or] an abuse

of discretion” in violation of the APA. 5 U.S.C. § 706(2)(A).



21

THIRD CAUSE OF ACTION Administrative Procedure Act – Not in Accordance with Law



80. The Administrative Procedure Act provides that courts shall “hold unlawful and

set aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A).

81. The Fair Housing Act requires Defendants to administer programs and activities

relating to housing and urban development in a manner that promotes fair, open, and integrated

housing. 42 U.S.C. §§ 3608(d), (e)(5). The AFFH Rule that was finalized in 2015 resulted from

a comprehensive six-year rulemaking process that concluded, among other findings, that HUD’s

previous practices did not adequately comply with the Fair Housing Act’s mandate.

82. By suspending the AFFH Rule and delaying indefinitely its compliance deadlines,

HUD is reinstating its prior, noncompliant practices, thereby violating its affirmative obligation

to take action to fulfill the goal of open, integrated residential housing patterns.

83. Defendants’ decision to suspend the AFFH Rule indefinitely by withdrawing the

Assessment Tool and reinstating the AI process, is therefore “not in accordance with law,” in

violation of the APA. 5 U.S.C. § 706(2)(A).


PRAYER FOR RELIEF

WHEREFORE, Proposed Intervenor-Plaintiff prays that this Court:

1. Declare that Defendants’ decision to withdraw the Assessment Tool and

reinstate the AI process is arbitrary, capricious, or otherwise not in accordance with law, or

is without observance of procedure required by law, in violation of the Administrative

Procedure Act, 5 U.S.C. § 706;


22

2. Enjoin Defendants to rescind the two May 2018 Notices withdrawing the

Assessment Tool and directing jurisdictions to revert to the Analysis of Impediments to Fair

Housing Choice (AI) process, and to promptly implement the AFFH Rule in full;

3. Award Proposed Intervenor-Plaintiff its reasonable fees, costs, and expenses,

including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and

4. Award such additional relief as the interests of justice may require.

Dated: June 5, 2018








STATE OF NEW YORK,




Defendants.

MEMORANDUM OF LAW IN SUPPORT OF THE STATE OF NEW YORK’S MOTION TO INTERVENE


i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 1

I. New York Should Be Permitted to Intervene as of Right under Federal Rule of Civil Procedure 24(a)(2). .................................................... 1

A. The Motion to Intervene Is Timely and Will Not Unduly Disrupt the Litigation or Prejudice the Parties. ......................................................................................................... 2

B. New York Has Important, Legally Protected Interests in this Action and Article III Standing. ....................................................... 3

C. The State’s Interests May Be Impaired Absent Intervention. ................................................................................................ 8

D. Existing Parties Do Not Adequately Represent New York’s Interests. ................................................................................. 8

II. Alternatively, New York Should Be Allowed to Intervene by Permission. ....................................................................................................... 10

CONCLUSION ............................................................................................................................. 11


ii

TABLE OF AUTHORITIES

Cases

Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F. Supp. 2d 1 (D.D.C. 2008) ................................................................................................ 3

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982) .................................................................................................................... 7

Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) .................................................................................................... 7

Associated Dog Clubs of N.Y. State v. Vilsack, 44 F. Supp. 3d 1 (D.D.C. 2014) .................................................................................................. 7

Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986) .................................................................................................... 9

EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042 (D.C. Cir. 1998) .......................................................................................... 10, 11

Forest Cty. Potawatomi Cmty. v. United States, 317 F.R.D. 6 (D.D.C. 2016) ................................................................................................ 3, 8, 9

Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981) .................................................................................................. 2

Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ................................................................................................ 8, 9

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979) ...................................................................................................................... 8

Gov’t Accountability Project v. FDA, 181 F. Supp. 3d 94 (D.D.C. 2015) .............................................................................................. 2

Hodgson v. United Mine Workers, 473 F.2d 118 (D.C. Cir. 1972) .................................................................................................... 3

Jones v. Prince George’s Cnty., 348 F.3d 1014 (D.C. Cir. 2003) .................................................................................................. 3

Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008). ............................................................................................... 2, 8


iii

Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................................................................................... 7

Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st Cir. 1983) ....................................................................................................... 8

NAACP v. HUD, 817 F.2d 149 (1st Cir. 1987) ....................................................................................................... 1

NRDC v. Costle, 561 F.2d 904 (D.C. Cir. 1977) .............................................................................................. 8, 10

Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) .......................................................................................... 3, 9, 10

People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809 (N.D.N.Y. 1996) ............................................................................................. 8

Roane v. Leonhart, 741 F.3d 147 (D.C. Cir. 2014) .................................................................................................... 2

Roeder v. Islamic Rep. of Iran, 333 F.3d 228 (D.C. Cir. 2003) .................................................................................................... 3

Safari Club Int’l v. Salazar, 281 F.R.D. 32 (D.D.C. 2012) ...................................................................................................... 2

Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5 (D.D.C. 2007) .............................................................................................. 10

Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .................................................................................................................... 9

United States v. Am. Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) ............................................................................................. 2, 9

Statutes

28 U.S.C. § 1331 ........................................................................................................................... 11

42 U.S.C. § 3608(e)(5) .................................................................................................................... 1

5 U.S.C. §§ 701-705 ..................................................................................................................... 11

Rules

Fed. R. Civ. P. 24(a) ............................................................................................................... 1, 3, 8

Fed. R. Civ. P. 24(b) ..................................................................................................................... 10


iv

Regulations

24 C.F.R. § 5.162(b)(2) ................................................................................................................... 5

Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 Fed. Reg. 23,922 (May 23, 2018) ......................................................... 4

Final Rule: Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015) ........................................................................................................................................... 5

Other Authorities

New York State Entitlement Jurisdiction Analysis of Impediments to Fair Housing Choice (Jan. 29, 2016) .................................................................................................. 4

U.S. Government Accountability Office, HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (Sept. 2010). ..................... 5


1

INTRODUCTION

The Fair Housing Act requires the Secretary of Housing and Urban Development (HUD)

to “administer the programs and activities relating to housing and urban development in a

manner affirmatively to further the policies” of the Act. 42 U.S.C. § 3608(e)(5). This statutory

obligation embodies “[Congress’s] desire to have HUD use its grant programs to assist in ending

discrimination and segregation, to the point where the supply of genuinely open housing

increases.” NAACP v. HUD, 817 F.2d 149, 155 (1st Cir. 1987) (opinion of then-Judge Breyer).

In 2015, following a comprehensive, six-year rulemaking process, HUD finalized a rule

to implement this “affirmatively furthering fair housing” (AFFH) mandate. Last month, however,

Defendants effectively suspended the requirements of the 2015 final rule, with no public notice

or opportunity for affected parties to comment. Defendants’ arbitrary and unjustified decision

harms the State of New York by impairing the ability of New York’s local jurisdictions to

identify, analyze, and address local barriers to fair housing; and by perpetuating barriers to

housing opportunity that subject the State’s residents to ongoing residential segregation and

discrimination.

The State therefore asks this Court to grant its motion to intervene as of right, or,

alternatively, for permissive intervention, to protect the interests of the State and its residents.

ARGUMENT

I. NEW YORK SHOULD BE PERMITTED TO INTERVENE AS OF RIGHT UNDER FEDERAL RULE OF CIVIL PROCEDURE 24(A)(2).

The State of New York satisfies the requirements for intervention as of right under Rule

24(a)(2). A party is entitled to intervene as a matter of right if (a) the motion to intervene is

timely, (b) the movant demonstrates a legally protected interest in the action, (c) the action

threatens to impair that interest, and (d) no party to the action can be an adequate representative


2

of the movant’s interests. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). All of these

requirements are satisfied here.

A. The Motion to Intervene Is Timely and Will Not Unduly Disrupt the Litigation or Prejudice the Parties.

New York’s motion to intervene is timely. The timeliness of a motion to intervene

requires “consideration of all the circumstances.” United States v. Am. Tel. & Tel. Co., 642 F.2d

1285, 1295 (D.C. Cir. 1980). The primary goal of this inquiry is to “prevent[] potential

intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties.”

Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014).

The motion to intervene comes just one week after Plaintiffs filed their First Amended

Complaint, before Defendants’ deadline to file a responsive pleading or opposition to Plaintiffs’

Motion for a Preliminary Injunction and for Expedited Summary Judgment, and within the

Court’s deadline for amicus briefs. Because New York has moved to intervene at such an early

stage, granting intervention here will not unduly disrupt the litigation or prejudice the parties. See

Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981) (intervention motion timely when filed

ten months after the complaint was filed, and one month after the court denied the plaintiffs’

motion for class certification); Safari Club Int’l v. Salazar, 281 F.R.D. 32, 42 (D.D.C. 2012)

(Howell, J.) (intervention motion timely when filed “three months after the Complaint was filed,

about one month after the [defendant] filed its answer, and before any dispositive motions were

filed”); cf. Gov’t Accountability Project v. FDA, 181 F. Supp. 3d 94, 95 (D.D.C. 2015)

(intervention motion will not disrupt or prejudice the parties because it “does not involve the

procedural complications that could arise if the existing parties were involved in (or had already

completed) discovery,” and the Court has not yet ruled on the merits).

To avoid disrupting the litigation or interfering with the Court’s schedule for considering


3

Plaintiffs’ pending motion, New York does not believe it is necessary for the Court to rule on

this motion to intervene before deciding Plaintiffs’ motion for preliminary injunction. If the

Court decides to defer a ruling on this motion to intervene until after deciding Plaintiffs’ motion

for preliminary injunction, New York respectfully requests that the Court consider its

Supplemental Memorandum of Law as an amicus submission in support of Plaintiffs’ motion.

B. New York Has Important, Legally Protected Interests in this Action and Article III Standing.

New York has substantial, legally protected interests in this lawsuit. A movant seeking to

intervene as of right “need[s] only an ‘interest’ in the litigation—not a ‘cause of action.’” Jones

v. Prince George’s Cnty., 348 F.3d 1014, 1018 (D.C. Cir. 2003) (citing Fed. R. Civ. P. 24(a)(2)).

The “interest” test is not a rigid standard; rather, it is “a practical guide to disposing of lawsuits

by involving as many apparently concerned persons as is compatible with efficiency and due

process.” Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); see also Hodgson v. United Mine

Workers, 473 F.2d 118, 130 (D.C. Cir. 1972) (the interest requirement is premised on the

understanding that “the interest of justice is best served when all parties with a real stake in a

controversy are afforded an opportunity to be heard.”).

A prospective intervenor also must have Article III standing. The D.C. Circuit has noted,

however, that “any person who satisfies Rule 24(a) will also meet Article III’s standing

requirements.” Roeder v. Islamic Rep. of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003); see also

Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F. Supp. 2d 1, 7 (D.D.C. 2008) (describing

the standing inquiry in the case of intervention as of right as “repetitive”). Therefore, as a general

matter, “when a putative intervenor has a ‘legally protected’ interest under Rule 24(a), it will

also meet constitutional standing requirements, and vice versa.” Forest Cty. Potawatomi Cmty. v.

United States, 317 F.R.D. 6, 11 n.4 (D.D.C. 2016) (citation omitted).


4

Here, New York’s interests are directly and adversely affected by HUD’s withdrawal of

the Assessment Tool, reinstatement of the “Analysis of Impediments” process, and concomitant

suspension of compliance with the AFFH Rule. HUD’s actions will make it more difficult for

New York’s local jurisdictions to analyze barriers to fair housing choices or identify meaningful

actions to address these barriers. By withdrawing the Assessment Tool, HUD has effectively

made it impossible for these jurisdictions to complete and submit AFHs. See Affirmatively

Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 Fed.

Reg. 23,922, 23,926 (May 23, 2018) (“HUD is immediately withdrawing the Local Government

Assessment Tool. As a result, local jurisdictions do not have an approved Assessment Tool that

is published and available for use in completing the AFHs.”). And by requiring jurisdictions to

return instead to the former “Analysis of Impediments” or “AI” process, HUD has reverted to a

set of procedures that has proven to be inadequate to ensure meaningful compliance with the

statutory AFFH mandate.

New York’s own experience confirms the defects of the former AI process. Before the

promulgation of the AFFH Rule, the New York State Division of Homes and Community

Renewal (NYSHCR) found that many of the AI submissions of New York’s local jurisdictions

were deficient for several reasons, including inadequate levels of data analysis, failures to review

prior AIs or to survey earlier efforts to address fair housing, and lack of sufficient outreach to

minorities and other members of protected classes.1 A significant part of the problem was that

HUD’s previous AI process simply did not provide the technical and regulatory guidance that

local jurisdictions needed. For example, the AI regulations did not specify the substantive

1 New York State Entitlement Jurisdiction Analysis of Impediments to Fair Housing Choice 237-46 (Jan. 29, 2016), available at http://www.nyshcr.org/aboutus/publications/NYSEJ-AI-2016.pdf.


5

elements that jurisdictions should consider when formulating their plans.2 Nor did HUD provide

jurisdictions with demographic data or analytical tools to help them analyze impediments to

housing integration.3 HUD did not even require jurisdictions to submit their planning reports to

HUD for review—a process that would have allowed jurisdictions to receive feedback and

guidance on whether they were identifying meaningful steps to further fair housing.4

The AFFH Rule addressed many of these defects by providing grantees with a regulatory

framework and ongoing substantive and technical guidance to empower them to identify and

make meaningful progress towards locally tailored fair-housing goals. In particular, the

Assessment Tool gave local jurisdictions a structured and detailed process to comprehensively

analyze and identify responses to local impediments to fair housing—a process that jurisdictions

in New York and elsewhere successfully followed to prepare their Assessments of Fair Housing

(AFH). And HUD’s review of local jurisdictions’ AFHs helped to identify deficiencies and

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

§ 5.162(b)(2). HUD’s effective suspension of the AFFH Rule and its abdication of responsibility

to provide ongoing guidance will deprive New York’s local jurisdictions of the support that

HUD had previously determined was necessary to effectively identify and address obstacles to

fair housing.

Even beyond HUD’s explicit withdrawal of the Assessment Tool and abandonment of its

oversight role over local jurisdictions’ submissions, HUD has also withdrawn or substantially

2 See U.S. Government Accountability Office, HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans 6 (Sept. 2010), available at https://www.gao.gov/assets/320/311065.pdf (“GAO Report”).

3 See Final Rule: Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,275 (July 16, 2015) (“AFFH Rule”).

4 Id.; see also GAO Report, supra, at 6.


6

scaled back much of the assistance it previously offered to state and local jurisdictions to comply

with their statutory AFFH obligations. For example, HUD has postponed a large number of

regional training sessions that it had previously scheduled to educate jurisdictions about the

AFFH mandate. See Ex. 1 (HUD Exchange, AFFH Regional Trainings (June 4, 2018, 12:32

PM), http://www.hudexchange.info/programs/affh/affh-trainings/). HUD has also stopped

answering jurisdictions’ questions about the AFH process on its web portal. See Ex. 2 (HUD

Exchange, Ask A Question (June 4, 2018, 12:33 PM), https://www.hudexchange.info/program-

support/my-question/)). Given these changes and Secretary Carson’s vocal and public opposition

to the AFFH Rule, New York has good reason to believe that HUD will continue to draw back

on providing assistance to state and local jurisdictions about how to comply with their statutory

AFFH obligations.

The obstacles that HUD has now thrown before local jurisdictions will also concretely

affect the State. Like local jurisdictions, the State of New York is subject to the Fair Housing

Act’s mandate to affirmatively further fair housing. To comply with that statewide obligation,

NYSHCR reviews and relies upon the data and analyses that local jurisdictions submit to HUD.

See Visnauskas Decl. ¶¶ 8-15 (Ex. A to N.Y. Mem. of Law in Support of Pls.’ Renewed Mot. for

Prelim. Inj. and Summ. J.). The AFFH Rule’s substantive guidance and standardized processes

would have made these submissions more robust, complete, and uniform—substantially

simplifying NYSCHR’s task of analyzing and incorporating these submissions into the State’s

own compliance plan. Id. ¶¶ 8-11, 13. Without these submissions, NYSCHR’s own efforts to

comply with the Fair Housing Act will become less efficient, more costly, and less effective. Id.

¶¶ 9-10, 15. New York has a legally protected interest in defending itself against these

unnecessary costs. See Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 458


7

(D.C. Cir. 2012) (plaintiff had standing where regulation would impose “greater compliance

costs,” even though costs would not be “‘significant’”); Associated Dog Clubs of N.Y. State v.

Vilsack, 44 F. Supp. 3d 1, 4 (D.D.C. 2014) (Humane Society had legally protected interest in

defending agency rule where invalidation of the rule would force it to expend additional

resources and would deprive it of information necessary to conduct investigatory and educational

programs).

HUD’s recent actions also directly injure the State’s parens patriae interests. The

purpose of the AFFH Rule is to expedite and facilitate state and local jurisdictions’ fair-housing

reforms. HUD’s actions will necessarily delay such reforms, thus subjecting New York’s

residents to ongoing segregation and discrimination. Some jurisdictions will simply decline to

undertake the burden of analyzing and identifying responses to fair-housing impediments in the

absence of a robust federal mandate; other, more willing jurisdictions will be unable to complete

that task without the assistance, guidance, and technical tools that the AFFH Rule would have

provided; and still other jurisdictions will once again submit deficient AI reports that will be

inadequate both to address their own fair-housing needs and to support the State’s compliance

efforts.

The inevitable delays to fair-housing reforms caused by HUD’s actions will substantially

injure New York’s quasi-sovereign interests in the health and well-being of its residents. See

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607-08 (1982); see also

Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (a state’s stake in protecting its quasi-sovereign

interests entitles it “to special solicitude in [the Court’s] standing analysis”). It is well established

that this quasi-sovereign interest includes a state’s interest in eradicating discrimination in all its

forms. See Snapp, 458 U.S. at 609 (state has a quasi-sovereign interest in protecting its residents


8

“from the harmful effects of discrimination”). Residential segregation in particular imposes

substantial social and economic harms on New York’s residents. See Gladstone Realtors v.

Village of Bellwood, 441 U.S. 91, 111-12 (1979) (deprivation of “the social and professional

benefits of living in an integrated society” satisfies the constitutional standing requirement of

actual or threatened harm); Munoz-Mendoza v. Pierce, 711 F.2d 421, 426 (1st Cir. 1983)

(Breyer, J.) (loss of the advantage of living in an integrated local community is a sufficient injury

for standing purposes); cf. People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 813

(N.D.N.Y. 1996) (discrimination has a “destructive societal effect justifying parens patriae

standing”). New York has a substantial, legally protected interest in avoiding such harms.

C. The State’s Interests May Be Impaired Absent Intervention.

Under Rule 24(a)(2), New York must show that disposition of the action “may as a

practical matter impair or impede the movant’s ability to protect its interest” in the litigation.

Karsner, 532 F.3d at 885 (quoting Fed. R. Civ. P. 24(a)(2)). The “impairment of interest” inquiry

“is not a rigid one.” Forest Cty. Potawatomi Cmty., 317 F.R.D. at 10. In determining whether

this requirement is met, courts consider “‘the practical consequences of denying intervention.’”

Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (quoting NRDC v. Costle,

561 F.2d 904, 909 (D.C. Cir. 1977)).

If Defendants were to prevail, the continued effect of the withdrawal of the Assessment

Tool and the reversion to the flawed AI process would “impair or impede” New York’s ability to

protect the interests detailed above by depriving New York and its localities of the resources,

tools, and clarity needed to help them satisfy their obligations under the Fair Housing Act, thus

hampering their ability to combat residential segregation.

D. Existing Parties Do Not Adequately Represent New York’s Interests.

The final prong of the Rule 24(a)(2) test for intervention of right requires a prospective


9

intervenor to show that no party to the action can be an adequate representative of its interests.

This requirement is “minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10

(1972); see also Forest Cty. Potawatomi Cmty., 317 F.R.D. at 11 (“[T]he putative intervenor’s

burden here is de minimis, and extends only to showing that there is a possibility that its interests

may not be adequately represented absent intervention.”). In fact, the D.C. Circuit has described

this requirement as imposing a “burden on those opposing intervention to show the adequacy of

the existing representation.” Nuesse, 385 F.2d at 702. Accordingly, movants “ordinarily should

be allowed to intervene unless it is clear” that an existing party provides adequate representation.

Am. Tel. & Tel. Co., 642 F.2d at 1293 (citation omitted).

Although New York and the Plaintiffs in this action share the ultimate objective to enjoin

HUD’s recent actions, New York has unique sovereign and public interests not shared by private

litigants. The D.C. Circuit has held, in light of these distinct governmental interests, that private

litigants do not adequately represent the interests of governmental entities for purposes of

intervention, even when they may share common objectives in a lawsuit. See, e.g., Fund for

Animals, 322 F.3d at 736-37. In particular, governmental entities like New York are “charged by

law with representing the public interest of [their] citizens”; by contrast, private litigants

represent “a more narrow and ‘parochial’ . . . interest” that may not reflect the views of the

broader populace. Dimond v. District of Columbia, 792 F.2d 179, 192-93 (D.C. Cir. 1986).

Moreover, in this proceeding, New York has a different set of rights and obligations under the

AFFH Rule than Plaintiffs do: for example, New York and its political subdivisions prepare and

submit AFHs, while Plaintiffs do not. Plaintiffs thus do not adequately represent New York’s

interests arising from its distinct responsibilities under the AFFH Rule.

In addition, New York will be able to contribute significantly to the full development of


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the underlying factual issues. See Costle, 561 F.2d at 912-13 (holding that proposed intervenors

met their “minimal burden” of showing that existing representation may not protect their

interests where proposed intervenors may contribute to the informed resolution of technical

questions that may arise regarding the impact of the regulations at issue). As HUD program

participants, New York and its localities can offer additional facts about their experiences with

the AFFH Rule. For example, HUD’s assertion that state and local jurisdictions experienced

substantial difficulty in using the Assessment Tool runs counter to the practical experience of

New Rochelle, which submitted its AFH in October, 2017. See Salgado Decl. ¶¶ 10, 14 (Ex. B to

N.Y. Mem. of Law in Support of Pls.’ Renewed Mot. for Prelim. Inj. and Summ. J.).

II. ALTERNATIVELY, NEW YORK SHOULD BE ALLOWED TO INTERVENE BY PERMISSION.

In the alternative, New York requests that the Court grant it permission to intervene in

this suit pursuant to Federal Rule of Civil Procedure 24(b). Under Rule 24(b)(1)(B), the Court

may grant permissive intervention to anyone who “has a claim or defense that shares with the

main action a common question of law or fact.” District courts are afforded “wide latitude” in

determining whether to grant a motion for permissive intervention. See EEOC v. Nat’l

Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). The D.C. Circuit has long

recognized that, “[a]s its name would suggest, permissive intervention is an inherently

discretionary enterprise.” Id.

Permissive intervention requires a showing of “(1) an independent ground for subject

matter jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question of law or

fact in common with the main action.” Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5, 10

(D.D.C. 2007). Courts allow intervention even “where the existence of any nominate ‘claim’ or

‘defense’ is difficult to find.” Nuesse, 385 F.2d at 704 (internal quotation marks omitted).

Additionally, when exercising its discretion, the court “shall consider whether the intervention


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will unduly delay or prejudice the adjudication of the rights of the original parties.” Nat’l

Children’s Ctr., Inc., 146 F.3d at 1045 (citing Fed. R. Civ. P. 24(b)).

New York satisfies the requirements for permissive intervention. First, since New York

seeks review of a federal administrative action based on federal law, the requirement for

independent subject matter jurisdiction is met pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-

705. Second, as set forth above, New York’s motion is timely and will not delay this litigation.

Third, New York’s claims will share common questions of both fact and law with the Plaintiffs’

claims, as both argue that HUD’s actions violated the Administrative Procedure Act and the Fair

Housing Act.

CONCLUSION

For the foregoing reasons, the State of New York respectfully requests that the Court

grant its motion to intervene in this action.

Dated: June 5, 2018





EXHIBIT 1


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EXHIBIT 2


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STATE OF NEW YORK,




Defendants.

[PROPOSED] ORDER GRANTING MOTION TO INTERVENE

Upon consideration of the Motion of the State of New York to Intervene as Plaintiff in

the above-captioned matter, it is hereby

ORDERED that the Motion to Intervene is GRANTED; and it is further

ORDERED that the State of New York is joined as Plaintiff to this action; and it is

further

ORDERED that the Clerk of the Court shall docket the State of New York’s Complaint

in this matter.


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SO ORDERED.

Dated: ___________________ Hon. Beryl A. Howell Chief Judge


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NAMES OF PERSONS TO BE SERVED

Pursuant to Local Civil Rule 7(k), the following is a list of the names and address of all

attorneys entitled to be notified of the entry of this Proposed Order.

Sasha Samberg-Champion Relman Dane & Colfax PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Ajmel A. Quereshi NAACP Legal Defense & Educational Fund, Inc. 1444 I Street, NW 10th Floor Washington, DC 20005 Allison Zieve Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 Arthur B. Spitzer ACLU of the District of Columbia 915 15th Street, NW 2nd Floor Washington, DC 20005 Michael Allen Relman, Dane & Colfax PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 Morgan Williams National Fair Housing Alliance 1101 Vermont Avenue, NW Suite 710 Washington, DC 20005 Sara K. Pratt Relman, Dane & Colfax PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036


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Thomas Silverstein Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005

Daniel J. Halainen U.S. Department of Justice 20 Massachusetts Avenue, NW 7th Floor Reception Desk Washington, DC 20530


Documents

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF … · Plaintiffs, Civ. Action No. 1:18-cv-01076-BAH STATE OF NEW YORK, Proposed Intervenor-Plaintiff, v. BEN CARSON, Secretary of