Tex. Low Income Hous. Info. Serv. v. Carson

• Citation: 427 F.Supp.3d 43
• Decision Date: 03 December 2019
• Docket Number: Civil Action No. 18-644 (TJK)
• Parties: TEXAS LOW INCOME HOUSING INFORMATION SERVICE, Plaintiff, v. Ben CARSON, Secretary of Housing and Urban Development, in his official capacity, and U.S. Department of Housing and Urban Development, Defendants.
• Court: U.S. District Court — District of Columbia

427 F.Supp.3d 43

TEXAS LOW INCOME HOUSING INFORMATION SERVICE, Plaintiff,

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

Civil Action No. 18-644 (TJK)

United States District Court, District of Columbia.

Signed December 3, 2019

Joseph J. Wardenski, Sasha Samberg-Champion, Pro Hac Vice, Michael Gerhart Allen, Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiff.

Marcia Kay Sowles, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge Texas Housers, a nonprofit dedicated to promoting affordable housing, brings this case against the Department of Housing and Urban Development (HUD) and its Secretary for their alleged failure to enforce federal civil rights laws against the City of Houston. Defendants have moved to dismiss the complaint, arguing that Texas Housers lacks standing because, among other reasons, (1) it lacks a legally cognizable injury, and (2) any injury it did suffer is not redressable because it was caused by Houston, as opposed to HUD. For the reasons discussed below, the Court agrees that Texas Housers lacks standing. The Court will therefore grant Defendants' motion and dismiss the complaint.

I. Background

A. Statutory and Regulatory Background

1. Title VI of the Civil Rights Act of 1964

Under Title VI of the Civil Rights Act of 1964, "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. An agency empowered to provide financial assistance as part of a federal program or activity, such as HUD, must enforce this dictate "with respect to such program or activity by issuing rules, regulations, or orders of general applicability" and may terminate or refuse to grant financial assistance "to any recipient as to whom there has been an express finding on the record, after an opportunity for a hearing, of a failure to comply with such requirement[s]." 42 U.S.C. § 2000d-1. Even so, "no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Id.

Under HUD's regulations, if an investigation reveals a failure to comply with nondiscrimination requirements, "the matter will be resolved by informal means whenever possible." 24 C.F.R. § 1.7. Only if "noncompliance cannot be corrected by informal means" may HUD effect compliance "by the suspension or termination of or refusal to grant or to continue Federal financial assistance." 24 C.F.R. § 1.8.

2. Title VIII of the Civil Rights Act of 1968 (Fair Housing Act)

Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. , prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, or disability. The Act provides that "[a]ll executive departments and agencies shall administer their programs and activities relating to housing and urban development ... in a manner affirmatively to further the purposes of this subchapter." 42 U.S.C. § 3608(d). The Act also provides that HUD must "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), "a requirement known as the ‘affirmatively further fair housing,’ or ‘AFFH,’ requirement." Nat'l Fair Hous. All. v. Carson , 330 F. Supp. 3d 14, 24–25 (D.D.C. 2018). The Act provides a right to sue in federal courts for any "aggrieved person" alleging a "[d]iscriminatory housing practice," 42 U.S.C. § 3613(a). The Act does not provide a cause of action to enforce § 3608, but federal courts have the power to review claims that HUD has failed to administer its programs in a manner that affirmatively furthers fair housing, Nat'l Fair Hous. All. , 330 F. Supp. 3d at 25.

3. Housing and Community Development Act of 1974 and Community Development Block Grant Disaster Recovery Funds

The Housing and Community Development Act of 1974 (HCDA), as amended, 42 U.S.C. § 5301 et seq. , established a program through which HUD provides community development block grants to state and local governments. The Community Development Block Grant Program (CDBG), 42 U.S.C. § 5301 et seq. , awards annual grants to provide housing and "expand[ ] economic opportunities, principally for persons of low and moderate income." 42 U.S.C. § 5301(c). To receive certain funds, including CDBG funds, a jurisdiction must regularly submit a consolidated plan to HUD that describes an assessment of housing needs in the jurisdiction, the strategic plan to address those needs, and how the funds will be used. 24 C.F.R. §§ 91.2(a), 91.15. In each plan, block grant recipients must also certify that they will comply with the requirements of the program, including the obligation to affirmatively further fair housing. 42 U.S.C. §§ 5304(b)(2), 12705(b). Along with annual block grants, HUD oversees the distribution of Community Development Block Grant Disaster Recovery (CDBG-DR) funding to restore infrastructure and housing and provide other long-term recovery needs to jurisdictions struck by major disasters. See, e.g. , 81 Fed. Reg. 39,687, 36,692 (June 17, 2016).

As part of its certification, between 1995 and 2015, Houston had to "conduct an analysis to identify impediments to fair housing choice within the jurisdiction [referred to as an ‘AI’], take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard." 24 C.F.R. § 91.225 (2014). In 2015, HUD promulgated a regulation requiring that Houston and other jurisdictions complete an Assessment of Fair Housing instead of an AI, which also required the jurisdictions to certify that they will "take no action that is materially inconsistent with its obligation to affirmatively further fair housing." 24 C.F.R. § 91.225(a)(1).

B. Factual Background

1. Texas Low Income Housing Information Service

The Court accepts as true the allegations in the complaint. Texas Low Income Housing Information Service ("Texas Housers") is a nonprofit organization dedicated to promoting safe, affordable housing in quality neighborhoods for families of color in Houston and the State of Texas. ECF No. 1 ("Compl.") ¶¶ 2, 118. "Texas Housers carries out its mission by researching and evaluating low-income housing and community development programs, needs, and issues throughout Texas to discover solutions; promoting public understanding of and support for the same; and organizing and empowering low-income people and communities to take the initiative to solve their own housing and community development problems." Id. ¶ 119. Over the last decade, Texas Housers has engaged in several projects in Houston, including working "on permanent housing solutions for victims of recent hurricanes, and on the development of quality new, affordable housing outside areas that have historically been segregated on the basis of race, national origin, and/or poverty." Id. ¶¶ 120–23. Texas Housers also "actively promotes the equitable distribution of housing and community development resources." Id. ¶ 125.

2. Houston's Alleged Failures and Receipt of Block Grant Funding

Despite Houston's racial and ethnic diversity, id. ¶ 37, Texas Housers alleges that the city remains "one of the most segregated large cities in the country" and has failed to affirmatively further fair housing in several ways. Id. ¶ 1. First, Texas Housers alleges that Houston has refused "to permit affordable housing complexes in predominantly white neighborhoods even as the City permits such developments in predominantly minority neighborhoods." Id. ¶ 6. Second, Texas Housers alleges that Houston "has failed to address the water drainage needs of most of Houston's racially- and ethnically-segregated neighborhoods, thereby subjecting them to repeated and prolonged flooding in the wake of hurricanes, tropical storms, and other natural disasters." Id. ¶ 11. As a result, these neighborhoods are subject to "repeated and prolonged flooding in the wake of hurricanes, tropical storms, and other natural disasters." Id.

Texas Housers contends that from 2011 until the time it filed this action, Houston submitted AIs and other annual grant submissions that included false certifications that it would affirmatively further fair housing. Id. ¶¶ 42–68. And in fact, HUD reviewed the AI that Houston submitted in 2010 and identified in an October 2011 letter certain deficiencies on Houston's part, including evidence that the city failed to address "the issue of segregated housing or to take any actions to overcome the effects of segregation." Id. ¶ 48. HUD then rejected the 2010 AI in a November 2011 letter, concluding that Houston did not "identify actions to address patterns of existing segregation" and that its "placement of affordable housing may have served to promulgate racial segregation." Id. ¶ 49. In 2014, Houston submitted a revised 2010 AI to HUD, which the agency accepted. Id. ¶ 51. In the intervening years, Houston continued to submit certifications that it was affirmatively furthering fair housing and, in turn, continued to receive more than $230 million in block grant funding. Id. ¶¶ 52–53. HUD also accepted and approved Houston's 2014 and 2015 AIs despite Texas Housers' objections that they "contained no programs or funding to address the concentration of affordable housing in high-poverty and minority concentrated neighborhoods, or to provide affordable housing in high-opportunity areas." Id. ¶ 61; see id. ¶¶ 57–66. And Houston received tens...