On January 5, 2018, HUD effectively suspended implementation of the agency’s 2015 Affirmatively Furthering Fair Housing regulation. It did this by issuing a notice delaying program participants’ submission of their required fair housing plans (known as Assessments of Fair Housing or AFHs) until after October 31, 2020. The submission of these fair housing plans is tied to the 5-year cycle under which program participants must submit their spending plans (known as Consolidated Plans, or ConPlans), most of which must be submitted before October 31, 2020. HUD’s delay means that most program participants will not be required to submit a fair housing plan for HUD review until 2024 or 2025.
NFHA filed comments urging HUD to reverse the action and to resume immediate implementation of the rule.
On May 8, NFHA, along with Texas Appleseed and Texas Housers, filed a lawsuit in federal district court in Washington, D.C., challenging HUD’s suspension of the AFFH rule as a violation of the Administrative Procedure Act. At the same time, the groups asked the court to grant a preliminary injunction requiring HUD to reinstate the rule. See below for these and other documents related to the case.
On May 23, HUD changed tactics. Through three notices published in the Federal Register, it rescinded the January 5, 2018 notice that delayed submission of Assessments of Fair Housing until after October 31, 2020 and withdrew the AFFH Assessment Tool for Local Governments, which is the form that program participants use to conduct and submit their AFHs. It also reminded program participants of their continuing obligation under the Fair Housing Act to affirmatively further fair housing, and instructed them to revert to the previous, flawed process for analyzing barriers to fair housing in their communities, known as the Analysis of Impediments to Fair Housing Choice (AI).
With these notices, HUD simply continued its effective suspension of the AFFH Rule in a different way, and told local governments that they still were not required to meet the AFFH Rule’s requirements. By withdrawing the planning tool that is central to local jurisdiction’s ability to carry out an Assessment of Fair Housing, HUD’s May actions have the same unlawful effect as its January action: both revert back to an earlier system for ensuring that jurisdictions meet their fair housing obligations that involves little HUD oversight and that both the government and fair housing experts agreed was disturbingly ineffective.
HUD is continuing to abandon its obligation under the Fair Housing Act and the AFFH Rule to ensure that municipalities do a better job of taking on housing discrimination and segregation that have persisted within their borders for too long.
On May 29, NFHA, Texas Appleseed and Texas Housers filed an amended complaint and a renewed motion for preliminary injunction. Since then, a number of groups have filed amicus briefs in support of NFHA and its co-plaintiffs. HUD has also filed a motion to dismiss the case. A hearing in the case is scheduled for August 9, 2018.
Documents related to the AFFH rule suspension and litigation:
HUD notices effectively suspending AFFH regulation
- HUD’s January 5 notice of delay in AFH submission dates until after 10/30/2020
- Link to comments filed in response to January 5 notice (regulations.gov)
- HUD’s three May 23 notices
Status of Jurisdictions’ AFH Submissions
- Jurisdictions with AFHs accepted by HUD prior to January 5, 2018
- Jurisdictions with AFHs submitted to, but not accepted by HUD as of January 5, 2018
- Projected submission dates for jurisdictions’ AFHs from January 5, 2018 through October 31, 2020
Initial documents in the NFHA, et. al. litigation
- Memorandum of Law in Support of PI and Summary Judgment
- 2-1 – Proposed Order
- 2-2 Declaration of Maxwell Ciardullo
- 2-3 Declaration of Janet Hostetler
- 2-4 Declaration of Justin Steil
- 2-5 Declaration of Madison Sloan
- 2-6 Declaration of Deborah Goldberg
- 2-7 Declaration of John Henneberger
- 2-8 Declaration of Lisa Rice
- 2-9 Declaration of Daniel Urevick-Ackelsberg
- 2-10 Memorandum in Support of Preliminary Injunction and Summary-Judgment
HUD’s Response to Lawsuit
- Memorandum in Support of Defendants’ Motion to Dismiss (7/9/18)
- Defendants’ Memorandum in Opposition to Plaintiff’s Motion (7/9/18)
- Defendants’ Memorandum in Opposition to New York State’s Motion to Intervene (7/9/18)
Further NFHA, et. al. litigation documents
- NFHA, et. al. renewed motion for preliminary injunction (5/29/18)
- Memorandum in support of renewed motion for preliminary injunction (5/29/18)
- Attachments to memorandum in support of renewed motion for preliminary injunction
- Declaration of Justin Steil
- Declaration of Janet Hostetler
- Declaration of Max Ciardullo
- Declaration of Daniel Urevick-Ackelsberg
- Declaration of Franklin Lenk
- Declaration of John Henneberger
- Declaration of Lisa Rice
- Declaration of Debby Goldberg
- Declaration of Maddie Sloan
Amicus briefs filed on behalf of NFHA, et. al.
- Amicus Brief of Brief of Housing, Consumer, Anti-Homelessness, and Anti-Poverty Advocates(NHLP, NLCHP, NLIHC, et al, June 5, 2018)
- Statement of Interest of Amici (list of over 50 amicus organizations joining brief)
- Amicus Brief of the States of Maryland, California, Massachusetts, Virginia, and Washington; The District of Columbia; and the Cities of Austin, Texas; New Orleans, Louisiana; Oakland, California; Portland, Oregon; Seattle, Washington; and Toledo, Ohio (June 5, 2018)
- Amicus Brief of Policy Link (June 5, 2018)
- – and declaration of Kalima Rose
Brief on behalf of proposed intervenor – New York State (June 5, 2018)
- Declaration of Commissioner Visnauskas
- Declaration of Matthew Murphy (NYC HPD)
- Declaration of Adam Salgado (New Rochelle)