13‐3087‐cv Cnty. of Westchester v. U.S. Dep’t of Housing and Urban Dev., et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of September, two thousand and thirteen.

PRESENT: JOHN M. WALKER, JR., PIERRE N. LEVAL, RICHARD C. WESLEY, Circuit Judges.

COUNTY OF WESTCHESTER,

Plaintiff‐Appellant,

‐v.‐ No. 13‐3087‐cv

UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SHAUN L.S. DONOVAN, as Secretary of HUD,

Defendant‐Appellant.

FOR APPELLANT: ROBERT F. MEEHAN, Westchester County Attorney, White Plains, NY.

FOR APPELLEES: DAVID J. KENNEDY, Assistant United States Attorney (Emily E. Daughtry, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District Court for the Southern District of New York (Denise L. Cote, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the motion for a temporary restraining order

and a preliminary injunction is DENIED. The appeal is DISMISSED as moot as

to Count IV of the Complaint.

The County of Westchester (“County”) moves for a temporary restraining

order and a preliminary injunction, enjoining the United States Department of

Housing and Urban Development (“HUD”) and its Secretary from reallocating

federal funds previously allocated, but never distributed, to the County. We

assume the parties’ familiarity with the factual and procedural background of the

case.

The appeal, as it concerns

(Count IV), is dismissed as

moot. HUD has acknowledged that the County has promoted source‐of‐income

2 legislation to its satisfaction and this no longer presents an impediment to the

allocation of fiscal year 2011 funds to the County.

The district court held that it lacked subject matter jurisdiction over the

County’s claims under the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701‐06. See Cnty. of Westchester v. U.S. Dep’t of Housing and Urban Dev., et al.,

No. 13‐cv‐2741(DLC),

, at *3‐5 (S.D.N.Y. Aug. 14, 2013). There

are strong arguments to be advanced that we lack jurisdiction. “The APA is not

an independent grant of subject matter jurisdiction. Rather, it waives the federal

government’s sovereign immunity” for certain categories of actions. Lunney v.

United States,

, 557‐58 (2d Cir. 2003) (citations omitted). This waiver

does not permit a plaintiff to challenge an action that “is committed to agency

discretion by law.”

(a)(2). Thus, even when Congress has not

explicitly barred judicial review, it is not to be had when the applicable statute “is

drawn so that a court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Heckler v. Chaney,

(1985).

The County’s complaint challenges the Secretary’s determination that the

County failed to submit sufficient evidence demonstrating that it will

3 affirmatively further fair housing. The governing statutes, however, do not

identify what acts are contemplated in the term “affirmatively further,” nor do

they define an evidentiary burden, but only state that the fund applicant must

submit “supporting evidence” with its certification. See

(b)(2),

12704(21). The statutes require only that certification establish the applicant’s

commitment to furthering fair housing to the “satisfaction of the Secretary.”

§ 5304(b).

We need not decide whether “affirmatively further” sets a meaningful

standard for review. Even assuming that it does, the County has not

demonstrated a likelihood of success on the merits. To meet this requirement,

“[i]t is not enough that the chance of success on the merits be better than

negligible.” Nken v. Holder,

(2009) (quotation marks omitted).

Here, the County is unlikely to succeed on the merits.

4 We have considered all of the County’s arguments and find them to be

without merit. For the reasons stated above, the motion for a temporary

restraining order and a preliminary injunction is DENIED. The appeal as to

Count IV of the Complaint is DISMISSED as moot.1

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 This Court is aware that the funds at issue lapse on October 1, 2013. Should HUD reallocate the funds, or should they lapse without allocation, the parties or a future merits panel of this Court might well find the controversy moot. See Cnty. of Suffolk v. Sebelius,

(2d Cir. 2010).

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