Appeals Court decision highlights inadequacy of U.S. Attorney approach

Westchester Case

February 19, 2015 — In a decision rendered yesterday, the Second Circuit Court of Appeals ruled in favor of the unremarkable proposition that HUD decisions to withhold or withdraw funding are subject to judicial review. The decision in no way suggested that HUD did not have sufficient justification on the merits to deny Westchester funds because the County had failed to meet its obligation to affirmatively further fair housing.

What the decision does do is to put into sharp relief the U.S. Attorney’s unwillingness to enforce directly the terms of the Westchester housing desegregation consent decree itself (note to U.S. Attorney: yes, we know you enforced in connection with the loophole-ridden source-of-income provision; it’s just all the other provisions of the decree that you’re ignoring).

When you withhold funds (and, we reiterate, ADC believes that HUD acted properly in deciding to do so), you are taking an action based on requirements applicable to all jurisdictions that are recipients of Community Development Block Grant and other federal housing funds.  Some process (albeit one using a standard that is quite deferential to the agency) is required.

When trying to enforce the consent decree, on the other hand, the requirements are specific to Westchester County and, by their own terms, set out the process that is due.  In connection with the completion of an analysis of impediments to fair housing choice (an “AI”), there is a specific set of obligations set out in paragraph 32 of the decree:

The County shall complete, within one hundred twenty (120) calendar days of the entry of this Stipulation and Order, an AI within its jurisdiction that complies with the guidance in HUD’s Fair Housing Planning Guide, see U.S. Dept. of HUD, Fair Housing Planning Guide (1996).  The AI must be deemed acceptable by HUD.  The County shall take all actions identified in the AI.  In the AI, the County shall: 

(a) commit to collecting data and undertaking other actions necessary to facilitate the implementation of this Stipulation and Order; and 

(b) identify and analyze, inter alia:

(i) the impediments to fair housing within its jurisdiction, including impediments based on race or municipal resistance to the development of affordable housing;

(ii) the appropriate actions the County will take to address and overcome the effects of those impediments; and

(iii) the potential need for mobility counseling, and the steps the County will take to provide such counseling as needed. 

Note that it was provided specifically that the AI “must be deemed acceptable to HUD.”  That is, an AI not acceptable to HUD would not fulfill the consent decree obligation. Period.

In other words, HUD doesn’t get out of the need to justify itself when making a funding decision based on rules applicable to all jursidictions, but Westchester doesn’t get out of the need to satisfy HUD (in HUD’s unreviewable discretion) when the agency is acting in connection with the consent decree AI obligation that binds Westchester uniquely.

Regrettably, despite the fact that Westchester is several years overdue in producing an AI acceptable to HUD, the U.S. Attorney has never moved to have the District Court hold Westchester in contempt for this violation of the decree.

In addition to producing such evidence as the District Court requires to show that the withholding of funds still potentially available to Westchester (about $750,000) was justified under the general regulations applicable to all jurisdictions, it’s long past time for the U.S. Attorney to move to hold Westchester in contempt for the consent decree violation.

The violation of the analysis requirement, of course, does not stand alone.  Westchester has continued to violate its action requirements, too, including most notably the twin obligations of paragraph 7(j) of the decree (see ADC’s Cheating On Every Level report and our letter challenging the U.S. Attorney’s defendant-not-the-judge-decides view of when a consent decree violation occurs). Both the U.S. Attorney and Jim Johnson (the court Monitor that serves at the pleasure of HUD) have an obligation to bring these violations to the District Court’s attention and seek to have a contempt order issued in relation to this non-compliance, also.