UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TEXAS LOW INCOME HOUSING INFORMATION SERVICE,

Plaintiff, v. Civil Action No. 18-644 (TJK) BEN CARSON, Secretary of Housing and Urban Development, in his official capacity, and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants.

MEMORANDUM OPINION

Texas Housers, a nonprofit dedicated to promoting affordable housing, brings this case

against the Department of Housing and Urban Development (HUD) and its Secretary for their

alleged failure to enforce federal civil rights laws against the City of Houston. Defendants have

moved to dismiss the complaint, arguing that Texas Housers lacks standing because, among

other reasons, (1) it lacks a legally cognizable injury, and (2) any injury it did suffer is not

redressable because it was caused by Houston, as opposed to HUD. For the reasons discussed

below, the Court agrees that Texas Housers lacks standing. The Court will therefore grant

Defendants’ motion and dismiss the complaint.

I. Background

A. Statutory and Regulatory Background

1. Title VI of the Civil Rights Act of 1964

Under Title VI of the Civil Rights Act of 1964, “[n]o person in the United States shall, on

the ground of race, color, or national origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. An agency empowered to provide financial assistance

as part of a federal program or activity, such as HUD, must enforce this dictate “with respect to

such program or activity by issuing rules, regulations, or orders of general applicability” and may

terminate or refuse to grant financial assistance “to any recipient as to whom there has been an

express finding on the record, after an opportunity for a hearing, of a failure to comply with such

requirement[s].” 42 U.S.C. § 2000d-1. Even so, “no such action shall be taken until the

department or agency concerned has advised the appropriate person or persons of the failure to

comply with the requirement and has determined that compliance cannot be secured by voluntary

means.” Id.

Under HUD’s regulations, if an investigation reveals a failure to comply with

nondiscrimination requirements, “the matter will be resolved by informal means whenever

possible.”

. Only if “noncompliance cannot be corrected by informal means”

may HUD effect compliance “by the suspension or termination of or refusal to grant or to

continue Federal financial assistance.”

.

2. Title VIII of the Civil Rights Act of 1968 (Fair Housing Act)

Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act,

et seq., prohibits discrimination in housing on the basis of race, color, religion,

sex, national origin, familial status, or disability. The Act provides that “[a]ll executive

departments and agencies shall administer their programs and activities relating to housing and

urban development . . . in a manner affirmatively to further the purposes of this subchapter.”

(d). The Act also provides that HUD must “administer the programs and activities

relating to housing and urban development in a manner affirmatively to further the policies of

this subchapter,”

(e)(5), “a requirement known as the ‘affirmatively further fair

housing,’ or ‘AFFH,’ requirement.” Nat’l Fair Hous. All. v. Carson,

, 24–25

2 (D.D.C. 2018). The Act provides a right to sue in federal courts for any “aggrieved person”

alleging a “[d]iscriminatory housing practice,”

(a). The Act does not provide a

cause of action to enforce § 3608, but federal courts have the power to review claims that HUD

has failed to administer its programs in a manner that affirmatively furthers fair housing, Nat’l

Fair Hous. All.,

.

3. Housing and Community Development Act of 1974 and Community Development Block Grant Disaster Recovery Funds

The Housing and Community Development Act of 1974 (HCDA), as amended,

et seq., established a program through which HUD provides community development

block grants to state and local governments. The Community Development Block Grant

Program (CDBG),

et seq., awards annual grants to provide housing and

“expand[] economic opportunities, principally for persons of low and moderate income.”

(c). To receive certain funds, including CDBG funds, a jurisdiction must regularly

submit a consolidated plan to HUD that describes an assessment of housing needs in the

jurisdiction, the strategic plan to address those needs, and how the funds will be used.

(a), 91.15. In each plan, block grant recipients must also certify that they will comply

with the requirements of the program, including the obligation to affirmatively further fair

housing.

(b)(2), 12705(b). Along with annual block grants, HUD oversees

the distribution of Community Development Block Grant Disaster Recovery (CDBG-DR)

funding to restore infrastructure and housing and provide other long-term recovery needs to

jurisdictions struck by major disasters. See, e.g.,

, 36,692 (June 17, 2016).

As part of its certification, between 1995 and 2015, Houston had to “conduct an analysis

to identify impediments to fair housing choice within the jurisdiction [referred to as an ‘AI’],

take appropriate actions to overcome the effects of any impediments identified through that

3 analysis, and maintain records reflecting the analysis and actions in this regard.”

(2014). In 2015, HUD promulgated a regulation requiring that Houston and other

jurisdictions complete an Assessment of Fair Housing instead of an AI, which also required the

jurisdictions to certify that they will “take no action that is materially inconsistent with its

obligation to affirmatively further fair housing.”

(a)(1).

B. Factual Background

1. Texas Low Income Housing Information Service

The Court accepts as true the allegations in the complaint. Texas Low Income Housing

Information Service (“Texas Housers”) is a nonprofit organization dedicated to promoting safe,

affordable housing in quality neighborhoods for families of color in Houston and the State of

Texas. ECF No. 1 (“Compl.”) ¶¶ 2, 118. “Texas Housers carries out its mission by researching

and evaluating low-income housing and community development programs, needs, and issues

throughout Texas to discover solutions; promoting public understanding of and support for the

same; and organizing and empowering low-income people and communities to take the initiative

to solve their own housing and community development problems.”

. Over the last

decade, Texas Housers has engaged in several projects in Houston, including working “on

permanent housing solutions for victims of recent hurricanes, and on the development of quality

new, affordable housing outside areas that have historically been segregated on the basis of race,

national origin, and/or poverty.”

¶¶ 120–23. Texas Housers also “actively promotes the

equitable distribution of housing and community development resources.”

.

2. Houston’s Alleged Failures and Receipt of Block Grant Funding

Despite Houston’s racial and ethnic diversity,

, Texas Housers alleges that the city

remains “one of the most segregated large cities in the country” and has failed to affirmatively

further fair housing in several ways.

. First, Texas Housers alleges that Houston has

4 refused “to permit affordable housing complexes in predominantly white neighborhoods even as

the City permits such developments in predominantly minority neighborhoods.”

.

Second, Texas Housers alleges that Houston “has failed to address the water drainage needs of

most of Houston’s racially- and ethnically-segregated neighborhoods, thereby subjecting them to

repeated and prolonged flooding in the wake of hurricanes, tropical storms, and other natural

disasters.”

. As a result, these neighborhoods are subject to “repeated and prolonged

flooding in the wake of hurricanes, tropical storms, and other natural disasters.”

Texas Housers contends that from 2011 until the time it filed this action, Houston

submitted AIs and other annual grant submissions that included false certifications that it would

affirmatively further fair housing.

¶¶ 42–68. And in fact, HUD reviewed the AI that Houston

submitted in 2010 and identified in an October 2011 letter certain deficiencies on Houston’s part,

including evidence that the city failed to address “the issue of segregated housing or to take any

actions to overcome the effects of segregation.”

. HUD then rejected the 2010 AI in a

November 2011 letter, concluding that Houston did not “identify actions to address patterns of

existing segregation” and that its “placement of affordable housing may have served to

promulgate racial segregation.”

. In 2014, Houston submitted a revised 2010 AI to

HUD, which the agency accepted.

. In the intervening years, Houston continued to

submit certifications that it was affirmatively furthering fair housing and, in turn, continued to

receive more than $230 million in block grant funding.

¶¶ 52–53. HUD also accepted and

approved Houston’s 2014 and 2015 AIs despite Texas Housers’ objections that they “contained

no programs or funding to address the concentration of affordable housing in high-poverty and

minority concentrated neighborhoods, or to provide affordable housing in high-opportunity

areas.”

; see

¶¶ 57–66. And Houston received tens of millions of dollars in CDBG-

5 DR funds following natural disasters in 2008 and 2015, which required Houston to certify to

HUD its compliance with Title VI and the Fair Housing Act.

.

3. HUD’s Investigations of Houston

In August 2016, HUD began to investigate whether Houston engaged in race- or national-

origin based discrimination in its handling of a proposed affordable housing complex known as

Fountain View Apartments, as well as its procedures for approving Low Income Housing Tax

Credit applications. See Compl., Ex. 1. In January 2017, HUD informed Houston that it had

concluded, based on its investigation, that the City’s failure to bring the approval of the Fountain

View Apartments to a vote was “motivated either in whole or in part by the race, color, or

national origin of the likely tenants.”

. HUD informed Houston that it could take certain

corrective actions to reach a voluntary resolution to the investigation. But HUD further noted

that “[i]f a voluntary resolution cannot be obtained, [it] may initiate administrative proceedings

or refer this matter to the United States Department of Justice for judicial enforcement.”

.

Houston entered into a Voluntary Compliance Agreement with HUD to resolve the

matter in March 2018. See ECF No. 13-1, Declaration of Garry Sweeney (“Sweeney Decl.”)

¶ 11, Ex. F at 1–18. In that agreement, HUD acknowledged that Houston disputed its findings in

the January 2017 letter. ECF No. 13-1, Ex. F at 1. Still, HUD and Houston agreed that, to avoid

a “time-consuming” dispute, all the “issues, findings, concerns, and questions” raised in that

letter would be “fully and finally resolved” by the agreement.

Under the Agreement,

Houston committed to: (1) implementing a “Voucher Mobility Pilot program to encourage

landlords in all areas of the City to rent to qualified families regardless of source of income,”

; (2) seeking to provide additional funding for the Houston Housing Authority, id.; (3)

certifying that it developed clear minimum standards for approving new housing tax credit

6 developments,

at 3–4; and (4) receiving technical assistance to identify opportunities to

affirmatively further fair housing through the deployment of disaster recovery funding,

.

In October 2017, Texas Housers filed an administrative complaint with HUD, alleging

that Houston’s “failure to provide equal levels of flood protection to African-American and

Latino-segregated neighborhoods harms people of color directly, by depressing the economic

value of their homes and subjecting them to disproportionate physical hazards and property

damage from flooding.” Compl. ¶ 115. In November 2017, HUD acknowledged receipt of the

letter. Sweeney Decl. ¶ 9. And in April 2018, a month after this suit was filed, HUD notified

Houston that it was processing the complaint and investigating its claims.

.

II. This Action

In March 2018, Texas Housers filed the instant complaint with three causes of action

under the Administrative Procedure Act (APA),

. First, the complaint alleges that

HUD “unlawfully withheld or unreasonably delayed” taking enforcement action against Houston

to bring it into compliance with Title VI and the grant requirements of the HCDA. Compl.

¶¶ 133–36. Second, it alleges that HUD acted arbitrarily and capriciously by approving

Houston’s access to various federal block grant programs and CDBG-DR funds “despite false

certifications of civil rights compliance for which it has offered no justification.”

¶¶ 137–41.

Third, it alleges that HUD failed to ensure that Houston affirmatively distributes federal housing

funds “in a manner that furthers racial desegregation” as required by Title VI and the AFFH

requirement.

¶¶ 142–45.

HUD moved to dismiss the complaint. ECF No. 13 (“MTD”). Texas Housers opposed

the motion, ECF No. 16 (“Opp’n”), and HUD replied, ECF No. 17 (“Reply”). The Court held a

hearing on the motion in July 2019. ECF No. 19 (“Hr’g Tr.”).

7 III. Legal Standard

A motion to dismiss under Rule 12(b)(1) tests whether a federal court has subject-matter

jurisdiction over a case. Courts “have an affirmative obligation ‘to consider whether the

constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by

Hecht v. Ludwig,

(D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992)). If the Court “concludes that it lacks subject-matter

jurisdiction, [it] must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp.,

(2006). Because federal law presumes that a cause lies outside a federal court’s

jurisdiction, the plaintiff bears the burden of establishing the factual predicates of jurisdiction.

See Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994).

“The court must accept as true all well-pleaded factual contentions and draw all

reasonable inferences therefrom, but it need not accept thread-bare recitals of the elements of

standing or legal conclusions couched as an assertion of fact.” Marouf v. Azar,

(D.D.C. 2019). Additionally, “[t]he court must give the plaintiff’s factual allegations

closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule

12(b)(6) motion because subject-matter jurisdiction focuses on the court’s power to hear the

claim.” Adams v. U.S. Capitol Police Bd.,

(D.D.C. 2008). And when

considering a motion under Rule 12(b)(1), “[a] court may consider the complaint supplemented

by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts

plus the court’s resolution of disputed facts.” Herbert,

.

IV. Analysis

An organization may assert standing “on its own behalf, on behalf of its members or

both.” People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric.,

(D.C. Cir. 2015) (“PETA”) (quoting Equal Rights Ctr. v. Post Props., Inc.,

, 1138

8 (D.C. Cir. 2011)). Texas Housers argues that it has standing based on its own cognizable injury

resulting from HUD’s alleged failure to enforce Houston’s civil rights obligations. Opp’n at 13.

The Court must therefore consider whether it has shown an “actual or threatened injury in fact

that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court

decision.” PETA,

(quoting Equal Rights Ctr.,

).

A. Injury in Fact

To satisfy the injury-in-fact requirement, an organization must allege that it suffered a

“concrete and demonstratable injury to [its] activities—with the consequent drain on [its]

resources—[that] constitutes far more than simply a setback to the organization’s abstract social

interests.” Havens Realty Corp. v. Coleman,

(1982). The D.C. Circuit has

articulated a two-prong test for determining whether an organization meets this standard.

First, the organization must plausibly allege “that the defendant’s ‘action or omission to

act injured the organization’s interest.” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n

on Election Integrity,

(D.C. Cir. 2017) (quoting PETA,

). To

make such a showing, the organization must plausibly allege that the challenged conduct

“perceptibly impaired [its] ability to provide services” by causing an “inhibition of [the

organization’s] daily operations.” Food & Water Watch, Inc. v. Vilsack,

(D.C

Cir. 2015) (second alteration in original) (quoting in first part Turlock Irrigation Dist. v.

F.E.R.C.,

(D.C. Cir. 2015) and in second part PETA,

). In

defining this requirement, the D.C. Circuit has “distinguished between organizations that allege

that their activities have been impeded from those that merely allege that their mission has been

compromised.” Abigail All. for Better Access to Dev. Drugs v. Eschenbach,

, 133

(D.C. Cir. 2006). As such, “an organization’s abstract interest in a problem is insufficient to

establish standing, ‘no matter how longstanding the interest and no matter how qualified the

9 organization is in evaluating the problem.’” Am. Soc’y For Prevention of Cruelty to Animals v.

Feld Entm’t, Inc.,

(D.C. Cir. 2011) (quoting Sierra Club v. Morton,

(1972)). Additionally, the organization must plausibly allege the existence of a “direct

conflict between the defendant’s conduct and the organization’s mission.” Nat’l Treasury Emps.

Union v. United States,

(D.C. Cir. 1996) (emphasis omitted) (holding that

such a conflict “is necessary—though not alone sufficient—to establish standing”).

Second, the organization must plausibly allege that it “used its resources to counteract

[the alleged] harm.” Food & Water Watch,

(quoting PETA,

).

Relying on “use of resources for litigation, investigation in anticipation of litigation, or

advocacy” does not suffice.

Nor does “‘expend[ing] resources to educate [an organization’s]

members and others’ unless doing so subjects the organization to ‘operational costs beyond those

normally expended.’”

at 920 (quoting Nat’l Taxpayers Union v. United States,

(D.C. Cir. 1995)). Rather, an organization must allege that it used its resources “in

response to, and to counteract, the effects of the defendant[’s]” challenged conduct, Equal Rights

Ctr.,

, and for a purpose other than advocacy or litigation, Turlock Irrigation

Dist.,

(“This is true whether the advocacy takes place through litigation or

administrative proceedings.”).

In its complaint, Texas Housers asserts that it “carries out its mission by researching and

evaluating low-income housing and community development programs, needs, and issues

throughout Texas to discover solutions; promoting public understanding of and support for the

same; and organizing and empowering low-income people and communities to take the initiative

to solve their own housing and community development problems.” Compl. ¶ 119. Texas

Housers pleads that it has “been wrongly deprived of HUD’s enforcement to require Houston to

10 comply with its federal civil rights obligations.” Id. ¶ 16. HUD’s “prolonged failure or refusal

to insist on compliance by Houston,” it alleges, has caused “persistent segregation” in the city,

“which makes it more difficult for Texas Housers to accomplish its mission in Houston.” Id.

¶ 126.

Texas Housers further alleges that it “has been required to divert its scarce resources

away from advocacy for low-income Texans in other regions of the state to document and

repeatedly challenge HUD’s failure to abide by its own civil rights obligations with respect to

Houston.” Id. ¶ 2. It pleads that it “has been required to interrupt, delay, or scale back its

research, analysis, policy development, and community education work” in other parts of Texas.

Id. ¶ 127. For example, Texas Housers contends that it has been forced to curtail “its research

and analysis of Harris County’s discriminatory treatment of affordable housing development

proposals; its review of the Low Income Housing Tax Credit competition for 2017 . . . ; and its

research and analysis of the impact of a 2015 Texas statute prohibiting local governments from

passing ordinances to expand housing choice for low-income Texans using rental subsidies.” Id.

¶ 128. And if HUD is not required to act against Houston, Texas Housers alleges that it “will

have to divert much of its time and other resources to projects that, in various ways, counteract

the damage that HUD’s action is doing to [Texas Housers’] ability to further its mission.” Id.

¶ 129.

Texas Housers does not plausibly allege a sufficient injury to its interest under the law of

this Circuit. For that reason, it never gets past the first step of the Havens organizational

standing test. Texas Housers asserts a few broad injuries to its overall “mission.” Id. ¶ 126

(alleging that HUD’s inaction has led to “persistent segregation [that] operates as a substantial

barrier to fair housing choice and equitable distribution of infrastructure and community

11 development resources, which makes it more difficult for Texas Housers to accomplish its

mission in Houston”). These allegations are plainly insufficient. “An organization must allege

more than a frustration of its purpose because frustration of an organization’s objectives ‘is the

type of abstract concern that does not impart standing.’” Food & Water Watch,

(quoting Nat’l Taxpayers Union,

). In other words, standing must be based on

more than an allegation that an agency’s actions, or lack thereof, have put more distance between

an organization and the ends it seeks. Moreover, that the ends Texas Housers seeks ultimately

depend on the subsequent action of a third party—Houston—makes its purported injury even

more nebulous. When a plaintiff asserts a chain of allegations for standing purposes, a court may

“reject as overly speculative those links which are predictions of future events (especially future

actions to be taken by third parties).”

at 913 (quoting Arpaio v. Obama,

(D.C. Cir. 2015)).

Texas Housers also references the advocacy efforts it undertakes to advance its mission:

“researching and evaluating low-income housing and community development programs, needs,

and issues throughout Texas to discover solutions; promoting public understanding of and

support for the same; and organizing and empowering low-income people and communities to

take the initiative to solve their own housing and community development problems.” Compl.

¶ 119. But Texas Housers does not allege that HUD’s inaction has directly impeded its ability to

engage in advocacy: it remains able to research and evaluate housing programs, needs, and issues

throughout Texas.

¶¶ 127–28. And more fundamentally, injury to an organization’s

advocacy efforts does not count for standing purposes. The key inquiry is whether the plaintiff

has alleged that “the defendant’s conduct ‘perceptibly impaired’ the organization’s ability to

provide services.” Turlock Irrigation Dist.,

(emphasis added) (quoting Equal

12 Rights Ctr., 633 F.3d at 1138–39). An organization has not stated an injury in fact if it “does not

allege impairment of its ability to provide services, [but] only impairment of its advocacy.” Id.;

see also Int’l Acad. of Oral Med. & Toxicology v. The U.S. Food & Drug Admin.,

(D.D.C. 2016) (considering “whether the injury relates to the organization’s

mere advocacy objectives or if, instead, it undermines the organization’s direct, non-advocacy

services”). The complaint does not allege that HUD has impaired Texas Housers’ ability to

provide any non-advocacy services. See Ctr. for Law & Educ. v. Dep’t of Educ.,

(D.C. Cir. 2005) (rejecting standing where “the only ‘service’ impaired is pure issue-

advocacy”). Therefore, it has not plausibly alleged a cognizable injury in fact.

In response, Texas Housers argues, first, that all its work is not fairly characterized as

advocacy. Opp’n at 16. It points to allegations that it conducts “research, analysis, policy

development, and community education work” in other parts of Texas. Compl. ¶ 127. And

second, it asserts that it was injured because it has had “to interrupt, delay, or scale back” that

work to focus on HUD’s inaction.

For example, because it had to “divert its limited

resources to secure HUD’s enforcement of Houston’s civil rights obligations,” it claims that it

was “unable to commence” other projects, such as an analysis of a Texas county’s discriminatory

treatment of affordable housing development proposals and a review of a Low Income Housing

Tax Credit competition. Id. ¶ 128.

This Texas two-step does not an create an injury in fact. Admittedly, the line between

advocacy and non-advocacy services can be blurry. See Am. Soc’y for Prevention of Cruelty to

Animals,

(“[M]any of our cases finding [organizational] standing involved

activities that could just as easily be characterized as advocacy—and, indeed, sometimes are.”).

In the Court’s view, however, Texas Housers’ activities are more accurately described as

13 advocacy. But no matter how its activities are characterized, Texas Housers must plausibly

allege that HUD’s inaction “perceptibly impaired” its ability to provide services or that its “daily

operations” were impeded, Food & Water Watch,

(quoting in second part PETA,

797 F.3d at 1094). It has not done so. As noted above, Texas Housers does not assert that

HUD’s inaction directly impaired its ability to research, analyze, or perform work on these other

projects. See Compl. ¶¶ 127–28. Rather, it alleges it could not undertake these projects because

it has chosen, at least at this point, “to divert its limited resources to secure HUD’s enforcement

of Houston’s civil rights obligations.” Id. ¶ 128; see also Opp’n at 13. But at step one of the

Havens standing test, the “pivotal inquiry is . . . not whether the organization has diverted

resources from one priority to another, but whether its activities have been directly impeded by

defendant’s activities, thus necessitating the diversion of resources.” Long Term Care Pharmacy

All. v. UnitedHealth Grp., Inc.,

(D.D.C. 2007) (emphasis added).

Texas Housers’ has not alleged that its activities—advocacy or not—have been so directly

impeded. Rather, the injuries it complains of merely reflect budgetary choices based only on the

“frustration of an organization’s objectives.” Ctr. for Law & Educ. v. Dep’t of Educ.,

(D.C. Cir. 2005) (quoting Nat’l Treasury Emps. Union,

). This is

precisely the sort of harm that does not confer organizational standing.

at 1161–62. Texas

Housers has effectively alleged that it has more work to do because of HUD’s inaction. But that

does not mean it has suffered an injury in fact sufficient for organization standing. See Elec.

Privacy Info. Ctr. v. U.S. Dep’t of Educ.,

(D.D.C. 2014) (noting that “the

expenditures that [a privacy-focused public interest organization] has made in response to [an

allegedly unlawful rule] have not kept it from pursuing its true purpose as an organization but

have contributed to its pursuit of its purpose”).

14 This case is easily distinguishable from others in which organizations promoting fair

housing adequately pleaded injuries in fact. In Havens Realty Corp. v. Coleman, for example,

the Supreme Court held that a nonprofit organization pleaded a cognizable injury by alleging that

the defendant’s “racial steering” practices—where it incorrectly advised black individuals that

apartments in certain areas were unavailable—perceptibly impaired the organization’s “ability to

provide counseling and referral services for low-and moderate-income homeseekers.”

. Texas Housers has not alleged that it provides such direct services, nor has it alleged that

HUD’s inaction caused any particular impairment to any non-advocacy services it does provide

beyond general frustration of its mission.

For this reason, the injury it alleges resembles that discussed in National Fair Housing

Alliance v. Carson,

(D.D.C. 2018). In that case, Texas Housers and other

plaintiffs alleged that HUD and Secretary Carson unlawfully withdrew a fair housing assessment

tool that purportedly “ma[de] it far easier to develop and promote local policies that affirmatively

further fair housing.”

. In holding that the plaintiff organizations had not adequately

alleged an injury, Chief Judge Howell noted that “the plaintiffs are largely engaged in the same

kinds of activities now that they were undertaking before the withdrawal of the [assessment tool]

. . . namely, education, research, advocacy, and counseling,” even if “withdrawal of the [t]ool

merely makes their efforts less ‘efficient[ ].’”

(last alteration in original). As discussed

above, Texas Housers has not alleged that HUD’s inaction has impaired its ability to research,

analyze, or educate; indeed, the complaint itself incorporates research and analysis that Texas

Housers has undertaken to support its claims in this very case. Compl. ¶¶ 12, 106. Nor has

Texas Housers, like the plaintiffs in National Fair Housing Alliance, pleaded a “dollar figure to

show an increase in its operational costs” that it will have to endure because of HUD’s inaction,

15 which in any event was insufficient to show injury in that case. See

; see

generally Compl.

None of the other cases cited by Texas Housers save its claims. In Open Communities

Alliance v. Carson, the plaintiff organization provided direct services to individuals and families

with housing vouchers, permitting them to move to higher-opportunity areas.

, 177–78 (D.D.C. 2017). There, Chief Judge Howell found, on a motion for preliminary

injunction, that an organization had shown that an agency’s delay of a rule “frustrate[d] [the

organization’s] ability to assist voucher holders gain access to greater opportunity.”

.

The agency’s inaction in that case directly affected the value of housing vouchers; that, in turn,

hampered the organization’s work with developers to build affordable housing and forced the

organization to abandon plans to launch a “web portal” built around the anticipated rule’s effects.

But as Defendants point out, Texas Housers has not alleged that it provides similar services

and suffered similar injuries to its daily activities. Reply at 5.

Similarly, in League of Women Voters of the United States v. Newby, the D.C. Circuit

concluded that a change to the instructions on a voter registration form caused an injury to an

organization that had been registering voters sufficient to confer standing.

(D.C.

Cir. 2016). The specific injury in that case was the impairment of the organization’s ability to

register voters, while its increased expenditures were “merely a symptom of that programmatic

injury.”

. Texas Housers’ allegations that it has had to focus its research, education and

policy development efforts on Houston at the expense of other areas in Texas is a far cry from

the direct impairment of day-to-day services that courts recognized as sufficient for standing

purposes in these cases.

16 Texas Housers also argues that organizations may suffer cognizable harm if an agency

deprives them of “‘access to information and avenues of redress they wish to use in their routine’

activities in furtherance of their missions.” Opp’n at 17 (quoting Action All. of Senior Citizens of

Greater Phila. v. Heckler,

, 937–38 (D.C. Cir. 1986)). At the hearing on its motion,

Texas Housers doubled down on this contention, emphasizing that if HUD had been properly

enforcing the law, then Houston would be providing assessments of its housing market to HUD

that would contain information of value to Texas Housers. See, e.g., Hr’g Tr. 12:1–7. But Texas

Housers failed to plead an injury stemming from a lack of information in its complaint, relying

instead on the “frustration of its mission and the drain on its resources.” Compl. ¶ 127. 1 It also

did not plausibly allege that it has been denied “a means by which to seek redress.” PETA, 797

F.3d at 1095. Nor did it allege the basic elements of an informational injury. See Friends of

Animals v. Jewell,

(D.C. Cir. 2016) (outlining the basic requirements when

pleading an informational injury). And even if it had included its arguments at the hearing in its

complaint, Texas Housers has not explained with any specificity how a lack of information from

Houston has perceptibly impaired its ability to provide services or has otherwise injured it. See

generally Compl. Its allegations at the hearing about a purported informational injury are

therefore dissimilar to those in Action Alliance, where the plaintiff pleaded that the denial of its

1 “It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.” Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv.,

(D.D.C. 2003) (quoting Coleman v. Pension Benefit Guar. Corp.,

, 24 n.8 (D.D.C. 2000)). Even if this were not fatal to the claim, Texas Housers has not shown that it has informational standing, which “arises ‘only in very specific statutory contexts’ where a statutory provision has ‘explicitly created a right to information.’” Am. Farm Bureau v. EPA,

(D.D.C. 2000) (quoting Animal Legal Def. Fund, Inc. v. Espy,

(D.C. Cir. 1994)).

17 access to information directly impaired its “routine information-dispensing, counseling, and

referral activities.”

. 2

B. Redressability

Besides an injury in fact, organizations must meet the other two requirements for

standing: causation and redressability. Causation, or traceability, requires that the asserted injury

be “fairly traceable to the defendant’s allegedly unlawful conduct,” Am. Soc’y for Prevention of

Cruelty to Animals,

, as opposed to an injury “that results from the independent

action of some third party not before the court,” Simon v. E. Ky. Welfare Rights Org.,

(1976). And redressability requires “it [to] be ‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable decision.’” Lujan v. Defs. of Wildlife,

(1992) (quoting E. Ky. Welfare Rights Org.,

). If the “plaintiff’s

asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation)

or someone else, much more is needed [to establish causation and redressability].” Id. at 562. In

that circumstance, “it becomes the burden of the plaintiff to adduce facts showing that [the]

choices [of those third parties] have been or will be made in such a manner as to produce

causation and permit redressability of injury.” Id.

The D.C. Circuit has “identified two categories of cases where standing exists to

challenge government action though the direct cause of injury is the action of a third party.”

2 In its complaint, Texas Housers also alleged, as part of its APA claims, that HUD failed to act in response to Texas Housers’ October 2017 administrative complaint about Houston’s storm water infrastructure. Compl. ¶¶ 131, 136(c). But HUD began to investigate that complaint in April 2018. See Sweeney Decl. ¶ 12. As a result, Texas Housers conceded at the hearing that, to the extent that HUD’s failure to investigate that complaint constituted a standalone APA claim, the claim is now moot. See Hr’g Tr. 60:4–61:17. Similarly, Texas Housers conceded that any standalone allegation under the APA that HUD’s decision to enter into what Texas Housers contends was an insufficiently-demanding voluntary compliance agreement is also moot. See Hr’g Tr. 61:19–62:14.

18 Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs.,

(D.C. Cir.

2007). The first category covers situations in which “the challenged government action

authorized conduct that would otherwise have been illegal.” Id.; see also Clark Cty., Nev. v.

F.A.A.,

(D.C. Cir. 2008) (finding redressability where a contrary decision by

an agency would prevent third-party construction to which the plaintiff objected). The second

category covers situations “where the record presented substantial evidence of a causal

relationship between the government policy and the third-party conduct, leaving little doubt as to

causation and the likelihood of redress.” Renal Physicians Ass’n.

(quoting

Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,

(D.C. Cir. 2004), abrogated

on other grounds by Perry Capital LLC v. Mnuchin,

(D.C. Cir. 2017)). 3 In either

case, the Circuit held, “to establish redressability at the pleading stage, [it] required more than a

bald allegation; [it] required that the facts alleged be sufficient to demonstrate a substantial

likelihood that the third party directly injuring the plaintiff would cease doing so as a result of

the relief the plaintiff sought.”

Even assuming it suffered a sufficient injury, Texas Housers still lacks standing because

it has failed to adequately plead that those injuries are redressable. As discussed above, a

plaintiff whose theory of redressability requires the subsequent action of a third party faces a

considerably tougher row to hoe. Lujan,

. Although Texas Housers has asked

3 Although it does not explicitly say so, Texas Housers’ theory of redressability falls in the second category. While the complaint alleges that both Houston and HUD are engaging in unlawful conduct, it does not seek a change in any law or regulation that would render illegal what is currently legal. See Nat’l Wrestling,

. Moreover, as Texas Housers acknowledges, Houston is presumably free to reject federal housing funds and their attendant conditions. See MTD at 26; Opp’n at 26.

19 this Court to compel HUD to act, the harm it seeks to remedy flows more directly from

Houston’s alleged inaction. For example, according to the complaint:

As a result of HUD’s prolonged failure or refusal to insist on compliance by Houston, the city remains the most segregated cities in Texas, and one of the most segregated large cities in the United States. That persistent segregation operates as a substantial barrier to fair housing choice and equitable distribution of infrastructure and community development resources, which makes it more difficult for Texas Housers to accomplish its mission in Houston.

Compl. ¶ 126. The complaint is replete with other examples. E.g., id. ¶ 16 (“HUD has refused

to use its immense leverage under federal funding programs to ensure adequate desegregated

housing in Houston.”); id. ¶ 40 (“[HUD] has refused to take effective actions to compel Houston

to adjust its housing policies and practices” through administration of federally financed housing

programs); id. ¶ 42 (pleading that, despite knowing of Houston’s violations, “HUD has done

nothing about it”); id. ¶ 69 (“HUD let Houston off with a slap on the wrist that will do nothing to

change Houston’s conduct”); id. ¶ 132 (“HUD has demonstrated that, absent injunctive relief, it

will not conform its conduct to its own obligations under federal law, and will not require

Houston to meet the obligations that come as a consequence of accepting federal housing

funds.”). Indeed, the injunctive relief Texas Housers seeks further buttresses the indirect nature

of the harm of which it complains:

(b) issue temporary and permanent injunctions requiring HUD to enforce Title VI, AFFH, and related obligations against Houston, to withhold further disbursements of . . . HUD funding to Houston until such time as it comes into compliance with those obligations . . . ;

(c) direct HUD to take all affirmative steps necessary to remedy the effects of the illegal conduct described herein and to prevent similar occurrences in the future.

20 Id., Prayer for Relief at 36. In sum, Texas Housers’ theory of harm relies on HUD as an

instrument for altering Houston’s behavior. See Opp’n at 13 (observing that for Texas Housers

to “carry out [its] mission effectively, it needs HUD to be a willing partner”). 4

Texas Housers has not plausibly alleged that relief from the Court would redress these

harms. National Wrestling is instructive. In that case, the plaintiffs challenged an interpretive

rule that the Department of Education issued that outlined a three-part test to assess “[w]hether

the selection of sports and levels of competition effectively accommodate the interests and

abilities of members of both sexes.”

(alteration in original) (quoting

(c)(1)). The plaintiffs alleged that they were hurt indirectly by institutions that chose “to

eliminate or reduce the size of men’s wrestling teams.”

. The court found that the

plaintiffs had failed to show that the relevant institutions would behave any differently if the

court ruled in their favor.

(“[N]othing but speculation suggests that schools would act

any differently than they do with the Three-Part Test in place.”). Similarly, Texas Housers has

pleaded no facts that allow the Court to reasonably infer that Houston would act differently in

4 Texas Housers argues in passing that “[a] plaintiff asserting procedural injury never has to prove that if he had received the procedure the substantive result would have been altered.” Opp’n at 26 (quoting City of Dania Beach, Fla. v. F.A.A.,

(D.C. Circ. 2007)). But, as Defendants correctly point out, these cases are inapposite because Texas Housers has not alleged a procedural injury. Reply at 9; see generally Compl. Additionally, to the extent that Texas Housers now seeks to characterize its allegations about HUD’s failure to investigate as procedural, it conceded at the hearing that they are moot. See Hr’g Tr. 60:4–61:17, 61:19– 62:14. The Supreme Court has instructed that “deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” Summers v. Earth Island Inst.,

(2009).

21 some way in the face of additional scrutiny from HUD. 5 Texas Housers’ own arguments in

favor of redressability reflect the speculative nature of its theory of relief:

Were HUD to carry out its legal obligations—or this Court to order it to begin doing so—that would directly benefit Texas Housers by removing an impediment (long-standing municipal interference with efforts at desegregation) to its ability to accomplish its mission. . . . Likewise, if HUD were ordered to condition Houston’s continued receipt of HUD funding on the city’s demonstrating actual compliance with the law, the result would be to make it far easier for Texas Housers to advocate for affordable housing in high-opportunity neighborhoods.

Opp’n at 25 (emphasis added); see also id. at 27 (arguing that HUD’s failure to “make Houston

comply with civil rights laws and advance [affordable housing] projects” is an “impediment to

Texas Housers’ ability to accomplish its mission,” the removal of which “is a tangible benefit,

regardless of what occurs thereafter”). This is precisely the kind of conjecture that the D.C.

Circuit rejected in National Wrestling. See

(concluding that “a quest for ill-

defined ‘better odds’ is not close to what is required to satisfy the redressability prong of Article

III”) (quoting oral argument). 6 By contrast, plaintiffs who have successfully pleaded contingent

relief have supported their allegations with “substantial evidence” that left “little doubt as to

causation and the likelihood of redress.” Renal Physicians,

(quoting Nat’l

5 Texas Housers dismisses Defendants’ “unsupported (and far-fetched) hypothesis that Houston could reject . . . federal funding in the future to avoid civil rights compliance.” Opp’n at 26 (emphasis in original). But Defendants do not bear the burden here; Texas Housers does. Lujan,

. 6 Indeed, it is not even clear what Texas Housers would like the Court to do other than to order HUD to more effectively enforce certain laws against Houston. See generally Compl., Prayer for Relief at 36; Opp’n at 35 (asking the Court “to order HUD to end its policy of overlooking Houston’s proven failures and to do something in accordance with the agency’s own findings”). And as Defendants correctly point out, the Supreme Court’s decision in Heckler v. Chaney generally precludes judicial review of an agency’s discrete enforcement decisions. MTD at 30; Heckler v. Chaney,

(1985) (“[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”).

22 Wrestling,

); see also Tozzi v. U.S. Dep’t of Health & Human Servs.,

, 307–310 (D.C. Cir. 2001) (plaintiff introduced record evidence to support his claim that

cities and organizations followed the government’s lead); Block v. Meese,

(D.C. Cir. 1986) (plaintiff supported his “otherwise conclusory allegation” that a government

classification was causing lost film sales by including “affidavits of potential customers”).

V. Conclusion

For all these reasons, in a separate order, Defendant’s Motion to Dismiss, ECF No. 13,

will be granted and the Court will dismiss the complaint, ECF No. 1, for lack of subject-matter

jurisdiction.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: December 3, 2019

23