Judge Myong J. Joun of the U.S. District Court for the District of Massachusetts on Wednesday granted a temporary restraining order (TRO) against the Department of Housing and Urban Development (HUD). The order blocks HUD’s plan to stop Private Enforcement Initiatives (PEI) under the Fair Housing Act by removing the department’s access to funding.
In making this decision, Judge Joun found that the National Fair Housing Alliance (NFHA), which was the plaintiffs, was likely to succeed in an arbitrary and capricious litigation. The judge found that HUD failed to “adequately explain the (financing) structure when it took action” and not when it “defended the lawsuit in court.” HUD used an affidavit called the “Roth Declaration” to explain the changes, but it was found to be “inadmissible.”
In addition, the court questioned HUD’s reliance on trust and alleged sham arguments. The NFHA has relied on PEI grants for years. When considering changes, courts take into account the long-standing reliance on old agency guidelines. In the Complaint, NFHA stated that there are over 100 organizations pursuing the goal of the Fair Housing Initiatives Program (FHIP). The old practice allowed organizations to focus their activities on “FHIP-funded work.” Judge Joun agreed, finding that HUD had failed to address these trust issues.
Under the pretext, Judge Joun explained that the objectives set in the policy change did not correspond to reality. The goals were to increase and expand participation. Still, Judge Joun noted that “the exclusion of almost all existing fair housing organizations will certainly not strengthen fair housing work.”
Judge Joun also rejected HUD’s new conditions on immigration status, faith and gender ideology. The judge considered that this was beyond the authority’s discretion (see below). He also noted that the defendants had not explained why this was relevant to the FHIP. The defendants argued that this was included to ensure compliance with the law. It was also found to have caused irreparable harm to both the plaintiffs and those applying for fair housing assistance.
HUD’s main defense was that the funding decision was at the agency’s discretion. The Supreme Court has ruled that the agency’s discretion is not subject to judicial review. Quote Lincoln in the Night’s Watch where the Supreme Court ruled that lump sums from Congress to agencies amount to discretionary funding. However, Judge Joun qualified the current case Lincoln. The court found that the FHIP expressly mentioned PEI grants in contrast to the statutes in Lincoln. HUD also referred to a piece of legislation that includes the word “may.” In statutory interpretation, the word “may” usually indicates freedom of movement and is not coercive in nature, an argument with which Justice Joun disagreed. He agreed with the plaintiffs that the programs are a “necessary Part of the fair housing enforcement system.”
According to the verdict, the President of the NFHA Lisa Rice explained “This ruling means that the people who answer that call will still be there to answer it and help people desperately seeking protection from unlawful housing discrimination.” The NFHA’s press release hailed the ruling as a decisive victory, but cautioned that the case is not yet over as the TRO expires in September.
Previously, HUD has been the subject of extensive litigation, including state-led political lawsuits in which a coalition of 20 states and the District of Columbia challenged agency changes, intense homeless funding disputes settled by federal appeals courts, and critical fair housing and discrimination litigation ranging from Supreme Court arguments about “disparate impact” to advocacy lawsuits over suspended fair housing rules.
