HUD said in a motion for summary judgment filed Monday the department has the authority to waive a conversion assessment, and that the approval of the conversion was not arbitrary nor capricious as the tenants who brought the suit alleged. It also argued that the 2019 notice that the tenants challenged was not the final agency action subject to review under the Administrative Procedure Act.
The Acre Road conversion assessment waiver complies with the Fair Housing Act because it plainly states that Marcia Fudge, the U.S. secretary for housing and urban development, can waive "any or all requirements or otherwise require a streamlined assessment for any public housing project or class of public housing projects," HUD told the court. The agency noted the act gives the secretary full discretion to fully waive an assessment or put in place an alternative streamlined assessment.
A group of Acre Road tenants and their tenant council filed the case in May, alleging a notice released by HUD in March 2019 that outlined the streamlined voluntary conversion process, which allows public housing agencies to skip a statutorily required conversion assessment before converting public housing into one that can take tenant-based housing choice vouchers, was unlawful. The plaintiffs contend that this notice was not made public, and that the agency failed to solicit public comment before publishing it.
In October 2020, the Housing Authority of Jefferson Parish, Louisiana, Acre Road's administrator, submitted its application and conversion plan for the Acre Road development. In March 2023, the conversion was approved by HUD, which also allowed the local housing authority to notify tenants they had 90 days to vacate their homes.
The tenants said the approval of the conversion without an assessment violated HUD's duty to consider fair housing effects, but the federal agency called this allegation "baseless." HUD said its fair housing office reviewed the proposed conversion and found that it had no civil rights-related concerns about the application. The agency added that it took into consideration fair housing concerns raised in letters sent by the renters, but it did not cause any change in the approval.
Additionally, the department also said it was satisfied with the relocation opportunities for the tenants, as there was sufficient availability of private rental housing with access to schools, jobs and transportation in New Orleans, where they can use their tenant-based housing choice voucher assistance.
"To help Acre Road residents use their voucher assistance, the department assessed that the housing authority and Jefferson Parish would provide mobility counseling," HUD said in its filing. "The housing authority and Jefferson Parish would provide for relocation consistent with the Uniform Relocation Act. That would include various support, such as offering comparable housing in terms of location and financial assistance with relocation costs."
The tenants also asserted that the conversion of the property was unlawful because it was based on the waiver that was granted in a 2019 notice, which the tenants also charged was unlawful. The 2019 notice did not grant a waiver to any specific housing project or housing authority, but rather invited eligible housing authorities to apply for a waiver and streamlined conversion, according to HUD.
The government called the residents' focus on the notice "misplaced" because the notice was not reviewable final agency action, nor was it the actual waiver of the conversion assessment. Even if it were, the notice is not rulemaking, so the agency was not required to provide the public with an opportunity to comment on the notice, and therefore did not violate the law, HUD argued. The department said the notice was just that — a notice — and did not consummate any decisionmaking process.
"The 2019 notice merely proposed a fluid framework that could be utilized in fact-specific situations later and invited public comment thereon; it imposed no obligations, prohibitions or restrictions," the summary judgment motion reads.
Residents Jolene Anderson, Candace Johnson and Kedra James and tenant council Marrero Tenants Organization Inc. said in their May 3 complaint that HUD violated the Administrative Procedure Act by approving the conversion of the Acre Road housing development in a streamlined voluntary conversion process without first notifying the tenants. They told the Washington, D.C., federal district court that HUD's approval of the conversion is an abuse of discretion and not in accordance with the law.
HUD said Monday the injuries that the tenants allege are not traceable to the actions they challenge. Even if the tenants had standing, the decisions do not fall under the Administrative Procedures Act because the decisions were committed at HUD's discretion provided by Congress, the agency argued.
U.S. District Judge Dabney L. Friedrich denied the tenants' request in July.
Counsel for the parties did not immediately respond to requests for comment Tuesday.
The tenants and their council are represented by Valerie A. Zuckerman and Jehan A. Patterson of Debevoise & Plimpton LLP, Brook Allarick Hill, Sophia Jayanty and Thomas Silverstein of the Lawyers' Committee for Civil Rights Under Law, and Hannah Adams of Southeast Louisiana Legal Services.
HUD is represented by Michael David Wagner of the U.S. Department of Justice.
The case is Anderson et al. v. U.S. Department of Housing and Urban Development et al., case number 1:23-cv-01259, in the U.S. District Court for the District of Columbia.
--Editing by Covey Son.
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