ANDERSON v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENTANDERSON v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
In this Administrative Procedure Act (APA) case, Jolene Anderson, Candace Johnson, Kedra James, Lakescha Beck, Darin Collins, and the Marrero Tenants Organization (collectively, Anderson) challenge the U.S. Department of Housing and Urban Development (HUD)s decision to authorize the closure of the Acre Road public housing development. Before the Court are the parties cross-motions for summary judgment. For the reasons that follow, the Court will grant both motions in part, deny both motions in part, dismiss some of Andersons claims as moot, and vacate HUDs decision authorizing the closure of Acre Road.
I. BACKGROUND
A. Statutory Background
HUD operates two programs that help low-income Americans find housing. Under
In 1998, Congress retooled the 1937 Act. Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 2518 (codified as amended at
One such requirement is the conversion assessment. Under
Two other parts of
Along with a conversion assessment, a public housing agency must prepare a conversion plan before converting any project to tenant-based assistance.
B. Regulatory Background
In 1999, HUD published a proposed rule implementing
In 2001, HUD promulgated a final rule governing initial convеrsion assessments
In 2003, HUD promulgated a final rule governing conversion of
In 2014, without notice and comment rulemaking, HUD issued Notice PIH 2014-14 (HA). The Notice offered certain small public housing agencies the opportunity to commence voluntary conversions without full-blown cost analyses under
In 2019, again without notice and comment rulemaking, HUD issued another notice—Notice PIH 2019-05 (HA). The 2019 Notice exercise[d] [HUDs] authority under [
Acre Road is a public housing development located in Jefferson Parish, Louisiana. JA 259, 276. It contains 200 housing units in 100 semi-detached buildings spread across 18 acres. JA 260. The Housing Authority of Jefferson Parish (HAJP), a small public housing authority, operates the site. JA 259, 268.
Acre Road struggles with roaches and mold. JA 267. A 2019 survey found indications of visible fungal growth in nearly all its units and very high mold spore counts in about half of them. JA 191, 193; see JA 194–97. In 2021, one resident described the projects unsafe and unsanitary conditions as a state of emergency. JA 573. Nor was HAJP prepared to fix things. Resolving the mold issue was estimated to cost hundreds of thousands of dollars, and HAJP itself was currently in a troubled status due to being in default of its Annual Contributions Contract with HUD. JA 267.
On September 21, 2020, HAJP sought permission to convert Acre Road to tenant-based assistance. JA 259. Consistent with HUDs 2019 Notice and HAJPs status as a small public housing authority, HAJP did not file a full conversion assessment under
neighborhood surrounding the Acre Road Project. Id. Given Acre Roads minimal density, the new development could [also] support a higher level of affordable housing if developed properly, which would increase[e] the stock of affordable housing for Jefferson Parish on net. AR 386.
HUD investigated. It consulted its New Orleans Field Office, which told HUD that the local rental market had sufficient housing availability for Acre Roads residents [b]ased on [its] knowledgе of the community, including a tenant-based assistance utilization rate of 92%. JA 665. The Field Office also indicated that it agreed with HAJPs conclusions and determinations as to the likely impact of the conversion on the neighborhood(s) in which [Acre Road] is located. Id. In addition, HUD received input from a regional division of its Office of Fair Housing and Equal Opportunity. The Office said that it had no civil rights-related concerns relative to HAJPs application. JA 308.
Meanwhile, the Marrero Tenants Organization—an elected tenant council representing the interests of [Acre Roads] residents, JA 628—mobilized against conversion. On November 22, 2022, it wrote to HUD asking it to deny HAJPs conversion application. JA 629. Its letter observed that HAJP had no timeline for redevelopment of the Acre Road site, nor any concrete plan other than an interest in donating the property to a new non-profit entity and potentially applying for a CNI planning grant. JA 630. It argued that conversion would increase residential segregation in Jefferson Parish (and thus violate
pursued various other options that would have benefited Acre Roads tenants more. JA 636–37. And it asserted that, because the majority of housing providers surveyed in Jefferson Parish [did] not accept Section 8 vouchers at all, closing Acre Road would not provide[] its residents with additional choices in the housing market. JA 633; see JA 638.
On February 8, 2023, the Organization followed up with another letter. That letter reiterated the Organizations residential-segregation concerns and provided additional data directly disput[ing] the New Orleans Field Offices 92%-voucher-utilization figure. JA 720. According to the Organization, only 57% of families issued vouchers in Jefferson Parish actually became program participants. Id. 27% of Section 8 participants were terminated from the program because their vouchers expired before they were able to find a unit. Id. Additionally, the average number of days it took voucher reсipients to find a unit . . . was 135, more than double the minimum required search time under HUD regulations. Id.
On March 9, 2023, HUD approved HAJPs conversion application. JA 726. Its approval memorandum observed that HAJP had not submitted a full conversion assessment under
HUDs memorandum did not discuss whether maintaining Acre Road would be less expensive than converting it. Nor did it mention residential segregation, alternative ways of disposing of Acre Road, the Fair Housing Act, or any of the Organizations letters.
D. Procedural Background
On May 3, 2023, Anderson (along with several other tenants and the Organization) sued HUD. Compl., Dkt 1. She аsked the Court to, among other things, vacate Notice PIH 2019-05 and HUDs approval of the Acre Road conversion. Id. at 28–29. She also moved for a preliminary injunction. Dkt. 3.
The Court denied Andersons request for preliminary relief in July, finding that she had not demonstrated a sufficient risk of irreparable harm. Tr. of Video Mot. Hrg at 20:16–21:22 (July 27, 2023), Dkt. 38; see id. at 7:16–17 (citing League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)). The Court emphasized that its conclusion might change if circumstances change[d], however. Id. at 20:20. It added that it was willing to prioritize this case to reach a decision on the merits promptly. Id. at 15:25–16:1.
Notice, Monocchios decision to ratify turned on his discretionary judgment that, based on the facts specific to Acre Road, waiving the full conversion assessment requirement was a reasonable and appropriate use of [HUDs] waiver authority. JA 834.
HUD filed a motion for summary judgment on October 23, 2023. Dkt. 42. Anderson filed a cross-motion for summary judgment on November 22, 2023, Dkt. 45, and an Amended Complaint on January 12, 2024, Dkt. 54. On April 10, 2024, HUD informed the Court that only one plaintiff in this action—Darin Collins—still lived at Acre Road. Defs. Resp. to Pls. Status Report at 1, Dkt. 62. Anderson, however, says that she did not want to move away from Acre Road and would like to return. Decl. of Jolene Anderson ¶ 22, Dkt. 46-2.
II. LEGAL STANDARD
Under
In assessing an agencys factfinding and its policy judgments under
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The Court will uphold decision[s] of less than ideal clarity if the agencys path may reasonably be discerned, but it cannot justify agency action based on factual findings or policy judgments the agency did not make in its own proceedings. Id. (cleaned up); see SEC v. Chenery Corp., 318 U.S. 80, 93–94 (1943); Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 304–05 (D.C. Cir. 2015).
As for actions not in accordance with law, in excess of statutory . . . authority, or without observance of procedure required by law,
Finally, the Court lacks jurisdiction over moot claims. FBI v. Fikre, 144 S. Ct. 771, 777 (2024). Mootness doctrine addresses whether an intervening circumstance has deprived [a] plaintiff of a personal stake in the outcome of [her] lawsuit. Moore v. Harper, 143 S. Ct. 2065, 2077 (2023) (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022)). Because mootness is jurisdictional, the Court must address it even when litigants do not. Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994).
III. DISCUSSION
Anderson asks the Court to hold unlawful and set aside (1) Notice PIH 2019-05 and (2) HUDs approval of the Acre Road conversion apрlication. HUD defends both on the merits and, in the alternative, seeks remand without vacatur. For the reasons that follow, the Court will dismiss Andersons challenge to Notice PIH 2019-05 as moot but will vacate HUDs decision to approve the Acre Road conversion application.
A. Notice PIH 2019-05
Anderson claims that Notice PIH 2019-05 conflicts with HUDs statutory obligations and that HUD unlawfully promulgated it without notice and comment rulemaking. The Court will dismiss both claims as moot. Because Principal Deputy Assistant Secretary Monocchio ratified HUDs conversion-assessment waiver without relying on the 2019 Notice, Anderson no longer has a personal stake in her challenge to it.
A claim becomes moot when, due to intervening events, a plaintiff lacks a personal stake in its resolution. Moore, 143 S. Ct. at 2076. Put differently, throughout a case, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477 (1990)).
Corrective action by an agency is one type of subsequent development that can moot a previously justiciable issue. Nat. Res. Def. Council v. U.S. Nuclear Regul. Comm‘n, 680 F.2d 810, 814 (D.C. Cir. 1982). For example, when one agency action supersedes another, prospеctive challenges to the superseded agency action generally become moot. See, e.g., Theodore Roosevelt Conserv. P‘shp v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011). In those circumstances, vacating the old agency action will not deliver the plaintiff any relief. The new agency action, not the old one, is what injures the plaintiff going forward. See, e.g., Blue Water Balt. v. Pruitt, 266 F. Supp. 3d 174, 180–81 (D.D.C. 2017).
Anderson now lacks a personal stake in the validity or invalidity of Notice PIH 2019-05, mooting her challenge to it. When HUD approved HAJPs conversion application in March 2023, it did so on the premise that the Notice waive[d] HAJPs obligation to perform a full conversion assessment. JA 732. Thus, at the start of this case, Andersons interest in blocking Acre Roads
conversion gave her an interest in attacking the Notice—the Court might
Although Monocchios characterization of Notice PIH 2019-05 as non-binding and non-definitive seems questionable, that does not save Andersons claims from mootness. JA 833; cf. JA 179 (HUD is exercising its authority under [
Nor does it matter that Monocchio may have acted so that HUD could succeed in this case. Cf. Pls. Reply Mem. at 22, Dkt. 58. Mootness often arises in the shadow of litigation, but that does not make moot cases any less moot. More fundamentally, the Court must presume that agency officials act regularly and in good faith, a presumption that Anderson has not rebutted. Hercules, Inc. v. EPA, 598 F.2d 91, 123 (D.C. Cir. 1978).
Likewise, Monocchios decision does not fall afoul of Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020). Regents holds that, when an agency purports to offer a fuller explanation of its reasons for taking a prior action, a court must assess whether the agency has in fact offered new reasons for that action. Id. at 1907 (quoting PBGC v. LTV Corp., 496 U.S. 633, 654 (1990)). But Regents requirement does not attach when an agency deal[s] with [a] problem afresh by taking new agency action instead, a category in which Monocchios October 2023 memorandum falls. Id. at 1908 (quoting SEC v. Chenery Corp., 332 U.S. 194, 201 (1947)). Monocchios memorandum ratif[ied] and affirm[ed] HUDs March 9, 2023 conversion assessment waiver without deference, JA 834, a decision that qualifies as new agency action, see Doolin Sec. Sav. Bank, F.S.B. v. OTS, 139 F.3d 203, 213 n.11 (D.C. Cir. 1998), superseded by statute on other grounds, Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 122 Stat. 2681 (1998), as recognized in SW Gen., Inc. v. NLRB, 976 F.3d 67, 70–71 (D.C. Cir. 2015).
The voluntary cessatiоn exception to mootness does not help Anderson either, even assuming without deciding that the Monocchio waiver qualifies as a
(cleaned up). Here, however, HUD checks both boxes. Because Monocchios waiver gives HUD an independent and adequate basis for approving HAJPs closure of Acre Road without a conversion assessment, it completely and irrevocably cures any defect arising out of HUDs initial reliance on Notice PIH 2019-05. Id. And because HUD is extraordinarily unlikely to wield Notice PIH 2019-05 against Anderson again, Anderson lacks a reasonable expectation that HUDs alleged violation will recur. Id. Although HUD might rely on the Notice in approving additional conversion applications in the future, Anderson does not represent that she currently resides or plans to reside at another public housing project that seеks conversion to Section 8. And with respect to Acre Road, HUD has no need to invoke Notice PIH 2019-05 in the future. Rather, Monocchios waiver materials independently make clear that—in HUDs view at least—evaluating HAJPs conversion application does not necessitate[] a full expensive and burdensome conversion assessment. JA 835.
For similar reasons, Anderson cannot rely on the mootness exception for actions capable of repetition yet evading review. Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). To show that an action is capable of repetition, there must be a reasonable expectation that the same complaining party [will] be subjected to the same action again. Pharmachemie B.V. v. Barr Labys, Inc., 276 F.3d 627, 633 (D.C. Cir. 2002) (quoting Weinstein, 423 U.S. at 149). Here, because Anderson does not reside at a new project that might attempt conversion and because HUD is highly unlikely to invoke Notice PIH 2019-05 at Acre Road again, she lacks such a reasonable expectation.
One final point merits discussion. Courts ordinarily treat agency ratification defenses as going to the merits rather than to mootness. Guedes v. ATF, 920 F.3d 1, 13 (D.C. Cir. 2019). In this case, however, HUD did not ratify Notice PIH 2019-05. Rather, it ratified the specific agency
decision that gives Andersоn a personal stake in this litigation while forgoing any reliance on the Notice. Thus, unlike in Guedes, Monocchios ratification decision does not render the 2019 Notices (alleged) defects harmless in general. Id. at 13–14 (describing scenario in which agency ratified sole action under review). Instead, it renders Andersons challenge to the 2019 Notice moot because an order vacating the 2019 Notice would no longer redress Andersons injuries. Kemna, 523 U.S. at 7–8.
For these reasons, the Court will dismiss Andersons challenge to the 2019 Notice as moot.
B. Acre Roads Conversion Application
That leaves HUDs decision to approve HAJPs conversion application for Acre Road. The Court finds that HUDs decision conflicted with the antidiscrimination provisions of the Fair Housing Act,
1. Housing Discrimination (42 U.S.C. § 3604(a) )
The Fair Housing Act makes it unlawful to refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
Section 3604 contemplates disparate impact theories of liability. Tex. Dep‘t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 534 (2015). To establish disparate impact liability under the Housing Act, a plaintiff must show that a policy entrenches residential segregation or disproportionately harms a protected class. Boykin v. Gray, 986 F. Supp. 2d 14, 17–18 (D.D.C. 2013); see 2922 Sherman Ave. Tenants’ Ass‘n v. District of Columbia, 444 F.3d 673, 681 (D.C. Cir. 2006). She must also show that these disparate impacts lack an adequate justification. Governmental or private policies are not contrary to the disparate-impact requirements unless they pose artificial, arbitrary, and unnecessary barriers to integrated living or minority success. Tex. Dep‘t of Hous., 576 U.S. at 534 (cleaned up).
In deciding whether HUD acted arbitrarily or beyond the limitations prescribed by
These principles doom HUDs defense to Andersons
It is true that HUDs Office of Fair Housing and Equal Opportunity reviewed HAJPs application and found no civil rights-related concerns. JA 308; see also JA 732 (noting the Offices approval). Even so, the Office did not explain which civil rights statutes it had considered or why it found that HAJPs application complied with them. JA 308. Nor did it discuss the Marrero Tenants Organizations contrary position, much less the empirical evidence the Organization offered to support it. Id.
So too, it is true but irrelevant that—as a matter of fact—HAJPs and Acre Roads problems may have made conversion necessary for HUD to accomplish substantial, nondiscriminatory goals. HUD did not state as much on the available record when it approved HAJPs conversion application, and the Court cannot rely on counsels post hoc rationalizations to plug the hole. Nat‘l Fed‘n of Fed. Emps., Local 1669 v. FLRA, 745 F.2d 705, 708 (D.C. Cir. 1984). Nor were HUDs options so obvious that its path may reasonably be discerned without a written record. State Farm, 463 U.S. at 43 (quoting Bowman Transp. Inc. v. Ark.-Best Freight Syst., 419 U.S. 281, 286 (1974)). Granted, HUD needed to do something about conditions at Acre Road. But in its November letter, the Marrero Tenants Organization proposed alternatives to HAJPs conversion plan that might also have improved Acre Roads safety and habitability. See JA at 636–37. It also argued that, if HAJP closed Acre Road, many of its residents would be left without housing—a
problem worse thаn being exposed to mold or other unsanitary conditions. JA 636. HUD may well have had good reasons for discounting the Organizations concerns, but it failed to cogently explain them or even broach them within the ambit of [its] existing standard[s]. State Farm, 436 U.S. at 48, 51.
For these reasons, the Court finds that HUDs approval of HAJPs conversion application fell short of its obligations under
2. Conversion Criteria (42 U.S.C. § 1437t(c) , (e) )
The Court also finds that HUD approved HAJPs conversion application in violation of the substantive conversion provisions of the 1998 Act.
Under the 1998 Act, [a] public housing agency may [only] convert [a] public housing project . . . in accordanсe with the requirements of
and (3) will not adversely affect the availability of affordable housing in such community. HUD shall block conversion only if . . . reliable information and data available to [it] . . . contradict[] an agencys assessment or if the agencys plan for converting its project otherwise fails to meet
Taken together, these provisions limit conversions in at least two ways. If a public housing agencys assessment does not demonstrate[] that conversion would satisfy
Both limitations undermine HUDs approval decision in this case. First, HAJP did not submit an assessment demonstrat[ing] that closing Acre Road would not be more expensive than continuing to operate it.
Second, assuming without deciding that HAJP demonstrated that conversion would principally benefit the residents of Acre Road alongside HAJP and the broader community,
HUD did not ask whether “reliable information and data available to [it] . . . contradicted that . . . assessment.”
Third, again assuming without deciding that HAJP “demonstrated” that closing Acre Road would not “adversely affect the availability of affordable housing” in Jefferson Parish, HUD failed to consider whether “reliable information” showed otherwise.
Contrary arguments fail. At the outset, decisions to grant a conversion application are not unreviewable as “committed to agency discretion by law.”
Further, although HUD explained its reasoning somewhat when it approved HAJP‘s conversion application, it did not “provide an adequate basis for judicial review.” Camp v. Pitts, 411 U.S. 138, 138 (1973) (per curiam). In relevant part, HUD (1) noted that HAJP “propose[d] the conversion of [Acre Road] due to infestation of mold,” (2) observed that “[s]tudies have concluded that the mold count presents a danger to the health and safety of the residents,” (3) concluded from those facts that “the conversion of [Acre Road] will improve the neighborhood by allowing the HAJP . . . to redevelop[] . . . the site as new housing,” and (4) added that “HAJP believes there is sufficient availability of private rental housing . . . where families can use their” Section 8 vouchers. JA 733. While better than nothing, that explanation does not show that HUD considered the statutory requirements of
In a similar vein, it does not help that
Finally, although
Context reinforces this reading. It would be strange to read
Confirming the point further is the paucity of arguments in the other direction. Although HUD observes that “[a] specific statutory provision controls over a more general one” in the event of conflict, HUD‘s Mem. in Opp. to Summ. J. at 16,
HUD also emphasizes that, in its 2014 guidance, it purported to waive compliance with its regulations implementing
One issue remains. Anderson seems to assume that HUD cannot waive compliance with
For these reasons, the Court finds that HUD‘s approval of HAJP‘s application to close Acre Road fell short of its obligations under
3. Affirmatively Furthering Fair Housing (42 U.S.C. § 3608 )
Anderson‘s remaining arguments are less successful. The Court starts with Anderson‘s claims under the Fair Housing Act‘s “affirmatively furthering fair housing” provisions, codified at
However laudable
Additionally, as HUD argues and as Anderson all but concedes, some agency action under
Given these standards, Anderson‘s claims under
Second, Anderson has not raised a viable programmatic challenge to HUD‘s administration of its conversion program more generally. She complains of HUD‘s decision to promulgate PIH Notice 2019-05, but she lacks a personal stake in her challenge to the Notice. And to the extent that Anderson challenges Principal Deputy Assistant Secretary Monocchio‘s October 2023 decision to ratify HUD‘s prior waiver of HAJP‘s conversion-assessment obligations, that decision was particular rather than programmatic. As Monocchio explained, it rested on his “discretionary judgment that, based on the facts specific to Acre Road, waiving the full conversion assessment requirement” for HAJP‘s conversion application “was a reasonable and appropriate use of [HUD‘s] waiver authority.” JA 834.
Anderson does not meaningfully respond. She cites several cases reviewing HUD‘s activities for compliance with
For these reasons, the Court will reject Anderson‘s claims under
4. Conversion Assessments (42 U.S.C. § 1437t(b)(1) )
The Court will also reject Anderson‘s claim that HUD approved HAJP‘s conversion application without a full conversion assessment pursuant to
Under
Paragraph (b)(3) does authorize HUD to waive compliance with (b)(1)‘s five components, meaning Anderson‘s claim under
Context confirms that “paragraph (1)” means “paragraph (1) of
Anderson offers a contrary reading of
Nor do Anderson‘s follow-on arguments against (b)(1) waivers have merit. It is true that
Finally, for reasons the Court has already given, the Court‘s reading of
For these reasons, the Court will reject Anderson‘s claims under
5. HUD‘s Regulations
Finally, the Court will reject Anderson‘s argument that HUD waived HAJP‘s obligation to file a full (b)(1) conversion assessment after arbitrarily departing from its own regulations.4 In general, if an agency promulgates rules after notice and comment, it may depart from those rules only after repealing or amending them through the notice and comment process. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993). Additionally, whenever an agency changes position, it must “ordinarily . . . display awareness that it is changing position” and offer “good reasons for [its] new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis deleted).
HUD did not arbitrarily or unlawfully change positions in this case because it did not chаnge positions at all. In 2014 and again in 2019, HUD recognized that it could “waive . . . or require a conversion assessment for ‘any public housing project or class of public housing projects‘” under
HUD granted HAJP‘s waiver after explaining that HAJP “was a small PHA with fewer resources, was struggling financially, . . . had been in default,” and faced “dangerous conditions at Acre Road.” JA 844. Far from reflecting a changed direction, that explanation follows naturally from HUD‘s 2014 and 2019 statements.
Anderson replies that HUD‘s position since 2014 contradicts its 2003 rules, which say that an agency seeking “to convert a public housing development . . . must perform a conversion assessment . . . in accordance with” requirements mirroring those of (b)(1), and therefore required notice and comment ruling to consummate.
Anderson adds that HUD‘s 2001 rules do waive public housing agencies’ obligations to conduct full initial assessments under (b)(2), suggesting that the 2003 rules’ failure to execute a similar waiver for conversion assessments under (b)(1) was intentional.
Finally, it does not help Anderson that HUD‘s proposed 1999 rules would have required public housing agencies “[to] submit a full conversion assessment” rather than a “streamlined” one if they wished to convert their projects. 64 Fed. Reg. at 40244. HUD‘s final rules depart from its 1999 proposals in many ways, making it difficult to tell whether the final rules incorporate this feature of HUD‘s 1999 draft. In any event, HUD‘s discussion of waivers in 1999 is not most naturally read to preclude HUD from exercising its statutory waiver authority in the future via individualized, case-by-case assessments for the reasons the Court has given.
For these reasons, the Court will reject Anderson‘s contention that HUD arbitrarily departed from its own regulations.
6. Vacatur
The Court must now decide whether to vacate HUD‘s approval decision or remand it without vacatur. “‘Vacatur is the normal remedy’ under the APA,”
Although the question is close, this cаse is not so “exception[al]” that it warrants remand without vacatur. Cf. Shultz, 962 F.3d at 512 (“[R]emand without vacatur is the exception rather than the rule.“). As to the first factor, HUD “may be able readily to cure” the defects identified in the Court‘s opinion, a possibility that “counsels remand without vacatur.” Heartland Reg‘l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009); see Allied-Signal, 988 F.2d at 151. Given Acre Road‘s mold problems, it is “not unlikely” that HUD could find that HAJP had adequate reasons for converting Acre Road to tenant-based assistance notwithstanding any disparate racial impacts of the decision. La. Fed. Land Bank Ass‘n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1085 (D.C. Cir. 2003). For similar reasons, HUD could find on remand that closure of Acre Road satisfies the conditions enumerated in
As to the second factor, however, vacatur would not be “so disruptive as to justify a departure from [the Court‘s] normal course.” Cboe Futures Exch., LLC v. SEC, 77 F.4th 971, 982 (D.C. Cir. 2023). Although almost all of Acre Road‘s tenants have already left the project, HUD does not argue that vacatur would cut off their Section 8 vouchers or require them to return for some other reason. (Some tenants may voluntarily return, Decl. of Jolene Anderson ¶ 22, but that possibility is hardly disruptive.) Because Jefferson Parish has not sold Acre Road or demolished the homes there, vacatur will not require HUD to “unravel a past transaction” or otherwise reconstitute an “egg” that has already “be[en] scrambled.” Shultz, 962 F.3d at 519. And because the Court will reject Anderson‘s challenges to Notice PIH 2019-05, vacatur does not threaten disruption to HUD‘s voluntary conversion program writ large.
Balancing the two factors, HUD has not shown a “substantial likelihood of disruptive effect” after vacatur. Am. Bankers Ass‘n v. Nat‘l Credit Union Admin., 934 F.3d 649, 674 (D.C. Cir. 2019). And while a “strong showing” of one vacatur factor “may obviate the need to find a similar showing of the other,” id., HUD‘s path on remand is not so obvious to the Court that it warrants remand without vacatur absent a meaningful possibility of disruption, cf. Cboe, 77 F.4th at 982. Accordingly, the Court will vacate HUD‘s approval of HAJP‘s conversion application for Acre Road.
CONCLUSION
For these reasons, the Court will grant HUD‘s motion for summary judgment in part and deny it in part, grant Anderson‘s motion for summary judgment in part and deny it in part, dismiss Anderson‘s claims challenging Notice PIH 2019-05 as moot, and vacate HUD‘s March 9, 2023 decision approving HAJP‘s conversion application for Acre Road. A separate order accompanies this memorandum opinion.
April 19, 2024
DABNEY L. FRIEDRICH
United States District Judge