OPEN COMMUNITIES ALLIANCE et al v. CARSON et al

Filing 29

MEMORANDUM OPINION regarding the plaintiffs' 15 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on December 23, 2017. (lcbah1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OPEN COMMUNITIES ALLIANCE et al.,
Plaintiffs,
Civil Action No. 17-2192 (BAH)
v.
Chief Judge Beryl A. Howell
BEN S. CARSON, SR., Secretary of Housing
and Urban Development, in his official
capacity, et al.,
Defendants.
MEMORANDUM OPINION

Section 8 of the Fair Housing Act of 1968 serves two statutory purposes: (1) “aiding lowincome families in obtaining a decent place to live” and (2) “promoting economically mixed
housing.” 42 U.S.C. § 1437f(a). This case is not about what is good housing policy, however.
This case is about the rule of law—whether an agency effectively may suspend a duly
promulgated regulation without observing the procedures or identifying relevant factual criteria
that the law requires to effect such a change. The U.S. Department of Housing and Urban
Development (“HUD”), without notice and comment or particularized evidentiary findings, has
delayed almost entirely by two years implementation of a rule requiring over 200 local Public
Housing Authorities (“PHAs”) in 24 metropolitan areas, which HUD selected based on fixed,
objective criteria, to calculate housing vouchers’ values based on local, rather than metropolitanwide, prevailing market rents. The plaintiffs, two voucher holders and a nonprofit organization
devoted to providing housing opportunities for low-income people in Connecticut, move to
preliminarily enjoin HUD to implement the rule on January 1, 2018, the rule’s effective date.

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Pls.’ Mot. Preliminary Injunction, ECF No. 15 (“Pls.’ Mot.”). For reasons this Memorandum
Opinion explains in detail, the plaintiffs’ motion for a preliminary injunction is granted.
I.

FACTS
A.

Overview of the Housing Choice Voucher Program and Fair Market Rents

Congress enacted the Housing Act of 1937 to assist state and local governments “to
remedy unsafe and insanitary housing conditions and the acute shortage of decent, safe, and
sanitary dwellings for families of low income.” Pub. L. No. 75-412, § 1, 50 Stat. 888, 888
(1937) (codified at 42 U.S.C. § 1437(a)). The Housing and Community Development Act of
1974, enacted nearly 40 years later, amended the Housing Act to add Section 8, which authorized
HUD to contract with PHAs to pay landlords rental subsidies on low-income tenants’ behalf.
Pub. L. No. 93-383, § 8(a), 88 Stat. 633, 662 (codified at 42 U.S.C. § 1437f(a)). The Housing
and Urban-Rural Recovery Act of 1983, Pub. L. No. 98-181, § 207, 97 Stat. 1153, 1181 (codified
as amended at 42 U.S.C. § 1437f(o)), created the Housing Choice Voucher (“HCV”) program,
which is HUD’s “major program for assisting very low-income families, the elderly, and the
disabled to afford decent, safe, and sanitary housing in the private market.” Housing Choice
Vouchers Fact Sheet, U.S. DEP’T HOUSING & URB. DEV.,
https://www.hud.gov/topics/housing_choice_voucher_program_section_8 (last visited Dec. 23,
2017) (“HCV Fact Sheet”). 1 HUD oversees the HCV program, directing funds to PHAs to
administer the program locally by issuing vouchers to qualified individuals and families, who use
those vouchers to secure housing in the private rental market. Id. A voucher holder may use a
voucher toward any housing that meets the HCV program’s requirements, subject to a PHA’s

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Federal Rule of Evidence 201 allows a court to take judicial notice of “a fact that is not subject to
reasonable dispute because it . . . is generally known within the trial court’s territorial jurisdiction; or . . . can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID.
201(b). Both of these conditions apply to a description of the HCV program found on HUD’s public website.

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approval. 24 C.F.R. § 982.1(a)(2). HCV participation is limited to low-income households,
which typically cannot afford to rent dwellings for which the rent substantially exceeds the HCV
program payment standard. See HCV Fact Sheet, supra; see, e.g., Pls.’ Mot., Attach. 9, Decl. of
Tiara Moore (“Moore Decl.”) ¶¶ 3, 7, ECF No. 15-9.
A voucher’s value is calculated largely on the basis of HUD’s determination of the “fairmarket rent” (“FMR”) for a dwelling of a particular size and type (e.g., a two-bedroom home).
24 C.F.R. § 982.503(a)(1). An FMR represents the amount required “to rent standard quality
housing throughout the geographic area in which rental housing units are in competition,”
including “the cost of utilities, except telephone.” Id. § 888.113(a). HUD annually calculates
and publishes in the Federal Register FMRs for different types of units in each market area as
well as any proposed changes to FMR calculation procedures. 42 U.S.C. § 1437f(c)(1)(B); see
also 24 C.F.R. § 982.503(a)(1). PHAs, in turn, use FMR calculations to establish “payment
standard amounts” for each unit type. 24 C.F.R. § 982.503(a)(1).
A PHA generally sets a payment standard “between 90 percent and 110 percent of the
published FMR for that unit size.” Id. § 982.503(b). A voucher holder typically pays a landlord
30 percent of her or his adjusted monthly income toward rent; the PHA pays the rent’s balance
directly to the landlord, so long as a dwelling’s actual gross rent is at or below the relevant
payment standard. Id. § 982.1(a)(3). If, however, a dwelling’s actual rent exceeds the payment
standard, the voucher holder pays the balance. Id. A PHA may use the same payment standard
amount for all areas within the PHA’s jurisdiction, or else “may establish a separate payment
standard amount for each designated part of the FMR area.” Id. § 982.503(a)(3).

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B.

Problems with FMR Calculations in Metropolitan Areas

FMRs often do not, in practice, accurately reflect rents actually charged in neighborhoods
within a broad metropolitan area, as “rents can vary widely within a metropolitan area depending
upon the size of the metropolitan area and the neighborhood in the metropolitan area within
which one resides.” See Establishing a More Effective Fair Market Rent System; Using Small
Area Fair Market Rents in the Housing Choice Voucher Program Instead of the Current 50th
Percentile FMRs, 81 Fed. Reg. 80,567, 80,567 (Nov. 16, 2016) (“Final Rule”). Consequently,
“[t]he result of determining rents on the basis of an entire metropolitan area is that a voucher
subsidy . . . may be too low to cover market rent in a given neighborhood.” Id. FMRs calculated
on metropolitan-wide bases may not enable voucher holders to afford rents in high-rent, highopportunity neighborhoods, consigning them to low-opportunity areas of concentrated poverty.
See id.; Moore Decl. ¶¶ 5–7; Pls.’ Mot., Attach. 4, Decl. of Crystal Carter (“Carter Decl.”) ¶¶ 6–
7, ECF No. 15-4. Calculating FMRs locally, in contrast, makes rents in high-opportunity areas
more affordable.
Prior to 2000, HUD generally calculated FMRs to reflect the 40th percentile rent in a
given metropolitan area. See 24 C.F.R. § 888.113(a)–(b). In 2000, however, HUD published a
new rule authorizing PHAs in areas meeting specified criteria to calculate payment standards
based on FMRs reflecting the 50th percentile rent in a given area. See Fair Market Rents:
Increased Fair Market Rents and Higher Payment Standards for Certain Areas, 65 Fed. Reg.
58,870, 58,870 (Oct. 2, 2000). This new policy was “designed to achieve two fundamental
program objectives: (1) Ensuring that low-income families are successful in finding and leasing
decent and affordable housing; and (2) ensuring that low-income families have access to a broad
range of housing opportunities throughout a metropolitan area.” Id. Consistent with these goals,

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the 50th Percentile Rule authorized PHAs to calculate payment standards using a 50th percentile
FMR under two circumstances: where “families are having difficulty using housing vouchers to
find and lease decent and affordable housing” and “a FMR increase is most needed to promote
residential choice, help families move closer to areas of job growth, and deconcentrate poverty.”
Id. FMR calculation would revert to a 40th percentile basis, however, in PHAs that experienced
no or an insufficient decrease in concentration of voucher holders after three years. Id. at 58,871.
HUD has concluded, based on recent research, that the 50th Percentile Rule is “not an
effective tool” for “increasing HCV tenant moves from areas of low opportunity to higher
opportunity areas.” Final Rule, 81 Fed. Reg. at 80,570. Rather, HUD has found that “much of
the benefit of increased FMRs simply accrues to landlords in lower rent submarket areas in the
form of higher rents rather than creating an incentive for tenants to move to units in communities
with more and/or better opportunities.” Id. HUD also observed that a “large number of areas
have been disqualified from the 50th percentile program for failure to show measurable
reduction in voucher concentration of HCV tenants since 2001 when the program started, which
strongly suggests that the deconcentration objective is not being met.” Id.
C.

The Small Area FMR Demonstration Project

In the wake of the 50th Percentile Rule’s apparent failure, HUD considered alternative
ways to expand housing opportunities for voucher holders. See id. Using census data collected
through the American Community Survey, HUD developed “Small Area FMRs” (“SAFMRs”),
which reflect fair-market rents in individual ZIP codes, rather than in broad metropolitan areas.
Id. HUD’s goal in applying this new, more targeted methodology was to “create more effective
means for HCV tenants to move into higher opportunity, lower poverty areas by providing them

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with subsidy adequate to make such areas accessible and to thereby reduce the number of
voucher families that reside in areas of high poverty concentration.” Id. 2
HUD undertook a demonstration project to test SAFMRs’ effectiveness. Section 8
Housing Choice Voucher Program Demonstration Project of Small Area Fair Market Rents in
Certain Metropolitan Areas for Fiscal Year 2011, 75 Fed. Reg. 27,808, 27,809 (May 18, 2010)
(“Proposed Demonstration Project”). Notably, HUD recognized, in announcing the project, that
“[t]he small area FMR demonstration project will not be effective unless the PHAs that operate
voucher programs covering the vast majority of voucher tenants in a metropolitan area agree to
participate and abide by the small area rents.” Id. at 27,811. In a subsequent notice describing
the project in more detail, HUD explained that SAFMRs “represent a fundamentally different
way of operating the voucher program in metropolitan areas,” and that the project would help
HUD “to better understand the programmatic impacts of changing the way voucher payment
standards are set.” Final Fair Market Rents for the Housing Choice Voucher Program for Small
Area Fair Market Rent Demonstration Program Participants; Fiscal Year 2013, 77 Fed. Reg.
69,651, 69,652 (Nov. 20, 2012) (“Demonstration Project”). HUD identified two purposes that
the demonstration project would serve: to (1) “evaluate [SAFMRs] in terms of effectiveness in
meeting the primary goal of improving tenants’ housing choices in areas of opportunity while
also assessing the impact on tenants in areas with SAFMRs below the metropolitan-wide FMR”

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Although SAFMRs are a recent innovation, HUD recognized the shortcomings of FMR schedules based on
metropolitan area-wide, rather than more localized, rent levels as early as 1977. See COMPTROLLER GEN. OF THE
U.S., CED-77-19, M AJOR CHANGES A RE NEEDED IN THE NEW LEASED-HOUSING PROGRAM 21 (1977) (“HUD’s
decision to prepare single FMR schedules for entire SMSAs [Standard Metropolitan Statistical Areas] or for
counties grouped into areas totaling 250,000 population is questionable. This approach ignores important
distinctions between metropolitan central cities and suburban areas as well as among suburban areas within SMSAs,
and it does not adequately consider the economic and demographic differences among non-SMSA counties. For
example, the San Francisco-Oakland, California, SMSA had identical FMRs for the counties of Alameda, Contra
Costa, Marin, San Francisco, and San Mateo. HUD field office officials said that each of these counties’ actual
market rents could vary by 30 to 40 percent.”).

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and (2) “understand and evaluate the administrative and budget impacts of converting and
operating the tenant-based voucher program using SAFMRs.” Id. In selecting pilot PHAs to
participate in the demonstration project, HUD used seven fixed, objective criteria to define an
initial pool of eligible PHAs, then “randomly selected” pilot areas “from stratified sets of eligible
PHAs.” Id. HUD ultimately selected five pilot PHAs from this pool: the (1) Chattanooga
(Tenn.) Housing Authority, (2) Housing Authority of the City of Laredo (Tex.), (3) Housing
Authority of the City of Long Beach (Cal.), (4) Housing Authority of the County of Cook (Ill.),
and (5) Town of Mamaroneck (N.Y.) Public Housing Agency. Id. HUD also included all
Dallas, Texas, metropolitan area PHAs, which since 2010 had implemented SAFMRs pursuant
to a settlement agreement, in the demonstration project. Id. at 69,652 n.2; Proposed Fair Market
Rents for the Housing Choice Voucher Program and Moderate Rehabilitation Single Room
Occupancy Program Fiscal Year 2011, 75 Fed. Reg. 46,958, 46,962 (Aug. 4, 2010).
D.

The SAFMR Rule

Before the demonstration project’s completion, HUD published advance notice of
proposed rulemaking announcing the agency’s intent to require several other metropolitan areas
meeting certain criteria to implement SAFMRs. See Establishing a More Effective Fair Market
Rent (FMR) System; Using Small Area Fair Market Rents (SAFMRs) in Housing Choice
Voucher Program Instead of the Current 50th Percentile FMRs; Advanced Notice of Proposed
Rulemaking, 80 Fed. Reg. 31,332 (June 2, 2015). HUD cited in this advance notice “research
and experience with the SAFMR demonstration” indicating “that amending its current FMR
regulation to enable adoption of the SAFMR methodology could provide HCV tenants greater
access to higher opportunity, lower poverty neighborhoods.” Id. at 31,333. As part of the

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advance notice, HUD also announced that the new Rule “would eliminate the use of 50th
percentile FMRs as a means to reduce HCV tenant concentration.” Id.
One year later, on June 16, 2016, HUD published a notice of the proposed new rule. See
Establishing a More Effective Fair Market Rent System; Using Small Area Fair Market Rents in
Housing Choice Voucher Program Instead of the Current 50th Percentile FMRs, 81 Fed. Reg.
39,218 (June 16, 2016) (“NPRM”). In doing so, HUD acknowledged that “[i]n order for Small
Area FMRs to work in expanding choice for voucher holders within designated metropolitan
areas, all PHAs operating in the FMR area would be required to use Small Area FMRs.” Id. at
39,224. The proposed rule addressed concerns raised in response to the advance notice and
sought additional comments on specific issues, including policies HUD should adopt to “mitigate
the impact of significant and abrupt decreases in the FMRs for certain ZIP code areas on families
. . . in those impacted areas” and whether “this policy change would be particularly burdensome”
to any “specific groups within the general population of voucher holders.” Id. at 39,225.
HUD published a final rule on November 16, 2016. Final Rule, 81 Fed. Reg. 80,567.
Calculating payment standards based on SAFMRs, HUD said, would “provid[e] . . . a subsidy
adequate to make such [high-opportunity, low-poverty] areas accessible and, consequently, help
reduce the number of voucher families that reside in areas of high poverty concentration.” Id. at
80,567. “ZIP codes,” HUD reasoned, “are small enough to reflect neighborhood differences and
provide an easier method of comparing rents within one ZIP code to another ZIP code area
within a metropolitan area.” Id. at 80,568. The rule contained several provisions to address
concerns about SAFMRs’ potential adverse impacts on voucher holders in low-rent ZIP codes.
Id. at 80,572. Particularly relevant here, the rule authorized HUD to “suspend a Small Area
FMR designation for a metropolitan area . . . where HUD determines such action is warranted

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based on a documented finding of adverse rental housing market conditions that will be set out
by notice,” id. at 80,569, enumerating three circumstances that could warrant a designation’s
suspension or PHA’s exemption from the SAFMR mandate, 24 C.F.R. § 888.113(c)(4). HUD
provided by notice that the new rule would go into effect on October 1, 2017, requiring affected
PHAs to implement the rule by January 1, 2018, Final Rule, 81 Fed. Reg. at 81,569; 24 C.F.R. §
982.503(b)(1), and designated 24 metropolitan areas, which covered over 200 PHAs in total,
subject to the Rule based on five fixed, objective criteria, see Small Area Fair Market Rents in
Housing Choice Voucher Program Values for Selection Criteria and Metropolitan Areas Subject
to Small Area Fair Market Rents, 81 Fed. Reg. 80,678, 80,679 (Nov. 16, 2016) (“SAFMR Area
Designations”); Defs.’ Opp’n Pls.’ Mot. (“Defs.’ Opp’n”), Attach. 1, Decl. of Todd Richardson,
Acting Gen. Deputy Assistant Sec’y for Pol’y Dev. & Research (“HUD Decl.”) ¶ 5, ECF No. 241. In so doing, HUD required all PHAs within affected metropolitan areas to implement
SAFMRs. These metropolitan areas included the Dallas, Texas area, SAFMR Area Designations,
81 Fed. Reg. at 80,679, in which PHAs, pursuant to the earlier-referenced settlement agreement,
already had implemented SAFMRs, see NPRM, 81 Fed. Reg. at 39,221.
E.

The Interim Report’s Preliminary Findings

After HUD announced the Rule’s promulgation, but before the Rule was set to go into
effect, HUD received preliminary findings from the demonstration project in the form of an
Interim Report titled Small Area Fair Market Rent Demonstration Evaluation. Defs.’ Opp’n, Ex.
1 (“Interim Report”), ECF No. 24-4. This report contained good news on SAFMRs efficacy to
achieve Section 8’s statutory goals, with mixed results for some demonstration project PHAs.
Specifically, the Interim Report found that SAFMRs in the pilot PHAs make “the
availability of units [] much more evenly distributed across different types of neighborhoods,

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leading to increased availability in high-rent ZIP Codes and reduced availability in low-rent ZIP
Codes.” Interim Report at vii; see also id. at viii (“Because SAFMRs increase access to highrent ZIP Codes and reduce access to low-rent ZIP Codes, we found not unexpectedly that the
transition to SAFMRs led to an increase in units potentially available to HCV holders in higheropportunity areas under SAFMRs compared with FMRs and fewer units in lower opportunity
areas.”). As a result, “[f]ollowing the implementation of SAFMRs, HCV holders in the
demonstration sites are slightly more likely to live in high-rent ZIP Codes than they were prior to
the demonstration,” while no such change was observed in “comparison PHAs.” Id. at viii.
Further, “[t]he slight changes in rents among the SAFMR PHAs also translate into slight changes
in opportunity.” Id.; see also id. at ix (finding that “[a]cross all evaluation PHAs . . . changes in
rents are also reflected in changes in access to opportunity.”). Moreover, Housing Assistance
Payment (“HAP”) costs, which “are the subsidy costs that PHAs incur on behalf of HCV holders
for rent and utilities,” “declined in real terms per unit between 2010 and 2015 in SAFMR
PHAs,” while “[r]ents paid to landlords remained nearly flat in real terms between 2010 and
2015 but varied by rent category.” Id. at x. The report states, “[i]n summary, it appears that
Small Area Fair Market Rents are working as intended—increasing access to units in higheropportunity areas and decreasing access in lower-opportunity areas.” Id. at 61.
At the same time, the Interim Report troublingly found that “the gain in units with rents
below the applicable FMR in high-rent ZIP Codes does not offset the decrease in the number of
units in the low-rent and moderate-rent ZIP Codes, resulting in a net loss of units potentially
available to HCV holders overall.” Id. at vii. The net effect of SAFMR implementation across
the pilot PHAs, the Interim Report found, was “a loss of over 22,000 units (3.4 percent) that
might otherwise be affordable to HCV holders.” Id. In addition, the Interim Report noted that

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average payment standard amounts declined by about 11 percent in inflation-adjusted terms in
pilot PHAs, resulting in average rent burden increases for HCV voucher holders of about 16
percent overall and 22 percent in low-income ZIP codes. Id. at ix–x. In contrast, payment
standard amounts relying on metropolitan area-wide FMRs declined by only about 2 percent,
resulting in an average rent burden increase of 9 percent. Id.
The Interim Report’s findings related only to Phase 1 of the demonstration project. Id. at
xi. In 2018, HUD will receive a Final Report combining and synthesizing data collected in
Phases 1 and 2, the latter of which will (1) update the Interim Report’s empirical analyses with
new housing data, and (2) use qualitative interviews of tenants and landlords to determine how
SAFMRs have affected or could affect housing decisions. Id. at xi, 98.
F.

HUD’s Two-Year Delay of the SAFMR Rule

On August 10, 2017, HUD issued a memorandum delaying SAFMR designations for 23
of the 24 metropolitan areas subject to the Rule (excluding Dallas), requiring PHAs in affected
areas to implement the Rule in 2020 rather than in 2018. Defs.’ Opp’n, Ex. 2, Suspension of
Small Area Fair Market Rent (FMR) Designations (“Suspension Mem.”) at 2, ECF No. 24-5.
The Suspension Memo expressly noted, however, that “any PHA operating in the covered
metropolitan areas” could still “voluntarily implement[] the use of Small Area FMRs prior to . . .
2019,” and that PHAs in the Dallas metropolitan area would continue to implement SAFMRs
pursuant to the settlement agreement. Id. at 1, 3. On August 11, 2017, HUD sent over 200
affected PHAs a letter informing those PHAs that their metropolitan areas’ mandatory SAFMR
designations were suspended until 2020. Defs.’ Opp’n, Ex. 3, Letter from Dominique Blom,
Gen. Deputy Assistant Sec’y for Public & Indian Housing, HUD, to PHA Exec. Dirs. (“Letter to
PHAs”) (Aug. 11, 2017), ECF No. 24-6; HUD Decl. ¶ 12.

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The Suspension Memo identified “several findings” in the Interim Report “that are
worrisome and where further research is needed to address a number of critical questions with
respect to the potential harm to HCV families (both participants and applicants) in areas
transitioning to Small Area FMRs.” Id. at 5. “[F]indings of the interim report that are of most
concern to HUD,” the Suspension Memo stated, “relate to the availability of units and the impact
of Small Area FMRs on voucher success rates and utilization, and to rent burdens among assisted
households.” Id. Specifically, the Suspension Memo stated that “[o]ne of the findings of
concern from the interim report is that the gain in units with rents below the applicable FMR in
high-rent ZIP codes did not offset the decrease in the number of units in the low-rent and
moderate-rent ZIP codes.” Id. The Suspension Memo acknowledged that, by contrast to the
operation of SAFMRs in the pilot PHAs, the Rule capped any SAFMR decrease to 10 percent
per year, but concluded that this provision “may only slow the pace of the loss of units, as
opposed to preventing the overall decline in the number of units available to HCV families in the
metropolitan area.” Id. at 5–6. The Suspension Memo also recounted the Interim Report’s
findings that SAFMRs have potential to increase voucher holders’ rent burdens. Id. at 6. The
Suspension Memo again acknowledged that, by contrast to the operation of SAFMRs in the pilot
PHAs, the Rule allows PHAs to hold nonmoving families harmless from payment standard
amount decreases, but noted that “there is no protection for families that must move to a new unit
or for applicant families off the waiting list who are trying to lease a unit on the program for the
first time.” Id. at 7.
The Suspension Memo identified two other concerns with respect to implementing the
Rule. The first concern was that “several PHA industry groups have [expressed] concerns about
the Small Area FMR final rule and the timeline for implementation” in response to a separate

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Federal Register notice on reducing regulatory burdens. Id. (citing Reducing Regulatory Burden;
Enforcing the Regulatory Reform Agenda Under Executive Order 13777, 82 Fed. Reg. 22,344
(May 15, 2017)). The Suspension Memo recognized that “HUD has not yet completed its
analysis of these public comments,” but asserted that “[t]emporarily suspending the Small Area
FMR designation until FY 2020 will allow HUD to be informed by the public comments on
reducing regulatory burden for the HCV program as well as the Final Report . . . before the use
of Small Area FMRs is required.” Id. The second concern was that developing and issuing
“guidance and planning to provide technical assistance to assist PHAs that must implement”
SAFMRs “without fully understanding and incorporating the lessons learned from the
Demonstration will result in a product that does not adequately assist those PHAs that must make
this [] transition.” Id. at 8. Relatedly, HUD noted that “[i]mplementing comprehensive guidance
that may become quickly outdated as the result of related regulatory burden reduction and reform
efforts is likewise problematic.” Id.
G.

The Plaintiffs

The plaintiffs are two African-American women living in metropolitan areas the Rule
would affect, as well as Open Communities Alliance (“OCA”), a nonprofit organization devoted
to providing social and economic opportunities for low-income people. Compl. ¶¶ 18–20, ECF
No. 1. Plaintiff Crystal Carter is a voucher holder who would like to move from Hartford,
Connecticut, to nearby Simsbury, Connecticut, to be near her children’s schools and to provide
her family a safer home and better opportunities. Carter Decl. ¶¶ 6–7. Hartford’s voucher
holders, who are disproportionately nonwhite, are concentrated in poor, racially segregated
neighborhoods. Pls.’ Mot., Attach. 6, Decl. of Will Fischer, Sr. Pol’y Analyst, Ctr. on Budget &
Pol’y Priorities (“CBPP Decl.”) ¶ 11, ECF No. 15-6. As of 2016, 41 percent of voucher holders

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in the greater Hartford metropolitan area lived in high-poverty neighborhoods, while only 18
percent of voucher holders in the area lived in low-poverty neighborhoods. Id. Ms. Carter
cannot move her family to Simsbury, however, as the metropolitan area FMR is too low for her
to participate in Simsbury’s rental market. Carter Decl. ¶ 7. She asserts that she would be able
to afford Simsbury rents if the Rule were implemented and claims that HUD’s delay of the
Rule’s implementation thus harms her directly. Id.
Plaintiff Tiara Moore, much like Ms. Carter, would like to move from Chicago, Illinois to
the high-opportunity area of DuPage County, Illinois, to provide a safer neighborhood and better
opportunities for her daughter. Moore Decl. ¶¶ 5–6. Not only does DuPage County have better
schools than Chicago, Ms. Moore’s mother lives in DuPage County and could provide childcare
while Ms. Moore works. Id. ¶ 6. The metropolitan area FMR, however, is too low for Ms.
Moore to afford DuPage County rents, which would be affordable were the Rule implemented.
Id. ¶¶ 7, 9. Ms. Moore, like Ms. Carter, asserts that HUD’s delay of the Rule’s implementation
thus harms her directly. Id.
H.

The Instant Litigation

On October 23, 2017, the plaintiffs filed a complaint challenging the Rule’s delay, see
Compl., and, on November 8, 2017, moved for a preliminary injunction that would require HUD
to implement the Rule without delay or modification by January 1, 2018, Pls.’ Mot. After the
parties’ briefing on this motion was completed, on December 11, 2017, the Court held a hearing
on December 19, 2017. See Minute Entry, dated Dec. 19, 2017. 3

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Under Local Rule of Civil Procedure 65.1(d), “[o]n request of the moving party together with a statement
of the facts which make expedition essential, a hearing on an application for preliminary injunction shall be set by
the Court no later than 21 days after its filing, unless the Court earlier decides the motion on the papers or makes a
finding that a later hearing date will not prejudice the parties.” LCvR 65.1(d). The plaintiffs did not request an
expedited hearing, and in any event, the Court finds that the parties’ consent to modification of the original
scheduling order, see Minute Order, dated Nov. 8, 2017, which moved briefing’s conclusion back to December 11,
2017, obviates any concern regarding prejudice to the parties occasioned by the hearing date.

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II.

LEGAL STANDARD
The Administrative Procedure Act (“APA”) authorizes any “person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action” to seek “judicial
review thereof.” 5 U.S.C. § 702. Actions subject to review include “final agency action for
which there is no other adequate remedy in a court.” Id. § 704. A “reviewing court shall decide
all relevant questions of law . . . and determine the meaning or applicability of the terms of an
agency action.” Id. § 706. An agency’s “interpretation of its own regulations ‘controls unless
plainly erroneous or inconsistent with the regulation.’” Press Commc’ns LLC v. FCC, 875 F.3d
1117, 1121 (D.C. Cir. 2017) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997) (alterations
omitted)); accord Safari Club Int’l & NRA of Am. v. Zinke, Nos. 16-5358 & 16-5362, 2017 U.S.
App. LEXIS 26317, at *18 (D.C. Cir. Dec. 22, 2017) (same). The “court shall [] compel agency
action unlawfully withheld or unreasonably delayed; and [] hold unlawful and set aside agency
action, findings, and conclusions found to be,” inter alia, “arbitrary, capricious, . . . or otherwise
not in accordance with law,” or “without observance of procedure required by law.” Id. §
706(1)–(2)(A), (D).
“Agency action is arbitrary and capricious ‘if the agency has relied on factors which
[law] has not intended it to consider, entirely failed to consider an important aspect of the
problem, or offered an explanation for its decision that runs counter to the evidence before the
agency.’” Mayo v. Reynolds, 875 F.3d 11, 19 (D.C. Cir. 2017) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (alterations omitted)); see also
Safari Club Int’l, 2017 U.S. App. LEXIS 26317, at *16 (noting that “[a] disputed action also
may be set aside as arbitrary and capricious if the agency has acted ‘without observance of
procedure required by law.’” (citing 5 U.S.C. § 706(2)(D))). A court engaged in arbitrary and

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capricious review “must not substitute its own judgment for that of the agency,” and “ordinarily
uphold[s] an agency’s decision so long as the agency ‘examined the relevant data and articulated
a satisfactory explanation for its action, including a rational connection between the facts found
and the choice made.’” Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir.
2017) (quoting State Farm, 463 U.S. at 43 (alterations and internal quotation marks omitted)).
“A party seeking a preliminary injunction must make a ‘clear showing that four factors,
taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence
of preliminary relief, a balance of the equities in its favor, and accord with the public interest.’”
League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing
Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). Whether a plaintiff must show
each of the four factors independently, or else may make a sufficiently “strong showing on one
factor [to] make up for a weaker showing on another,” remains an open question in the D.C.
Circuit. Id. at 7 (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). 4
III.

DISCUSSION

4

The Supreme Court, in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), has
suggested that a plaintiff seeking a preliminary injunction must show each factor separately. Winter referred to the
four factors conjunctively, holding that such a plaintiff “must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” 555 U.S. at 20. Winter also rejected the contention that
“when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be
entered based only on a ‘possibility’ of irreparable harm,” holding that “plaintiffs seeking preliminary relief [must]
demonstrate that irreparable injury is likely in the absence of an injunction.” Id. at 21–22 (emphasis in original).
The D.C. Circuit repeatedly has observed that “the so-called ‘sliding-scale’ approach to weighing the four
preliminary injunction factors” may no longer be viable post-Winter, but has never resolved this question one way or
the other. League of Women Voters, 883 F.3d at 7; see also Pursuing Am.’s Greatness, 831 F.3d at 505 n.1 (“We
need not resolve here any tension in the case law regarding the showing required on the merits for a preliminary
injunction.”); Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (“[I]t remains an open question whether the
‘likelihood of success’ factor is ‘an independent, free-standing requirement,’ or whether, in cases where the other
three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits. .
. . But we have no need to resolve this question here because the remaining factors do not, in any event, weigh in
petitioners’ favor.”); Sherley, 644 F.3d at 392–93 (“[W]e read Winter at least to suggest if not to hold that a
likelihood of success is an independent, free-standing requirement for a preliminary injunction.” (internal quotation
marks omitted)).

16

The plaintiffs seek a preliminary injunction requiring HUD to implement the Rule on its
effective date of January 1, 2018. Pls.’ Mot. Their motion challenges the lawfulness of HUD’s
two-year delay of the Rule’s implementation in ways relating to claims in the complaint. 5 First,
the plaintiffs argue that HUD failed to adhere to the requirements of notice and comment
procedure in delaying the Rule’s implementation. Pls.’ Mem. at 22–27; see Compl. ¶ 143–48.
The defendants acknowledge HUD delayed the Rule’s implementation without notice or
comment, but argue that HUD had authority under a promulgated regulation, 24 C.F.R. §
888.113(c)(4), to suspend SAFMR designations and exempt PHAs without resort to notice and
comment, Defs.’ Opp’n at 21–27. The plaintiffs dispute that this regulation conferred such
authority upon HUD. Pls.’ Mem. at 24–27. Second, the plaintiffs argue that HUD’s delay of the
Rule’s implementation was arbitrary and capricious because HUD failed to provide an adequate
explanation for the delay. Id. at 28–34; see Compl. ¶¶ 149–57. The plaintiffs contend that the
Rule’s delayed implementation will irreparably harm them, and that both the balance of equities
and consideration of the public interest weigh in favor of issuing a preliminary injunction. Pls.’
Mem. at 34–43. Here, for reasons explained in further detail below, the plaintiffs have carried
their burdens of demonstrating all four factors, and so merit a preliminary injunction under either
the “independent factors” or “sliding scale” approach.
A.

Likelihood of Success on the Merits

The plaintiffs’ (1) notice and comment and (2) arbitrary and capricious claims boil down
to a common issue—whether HUD identified adverse rental housing market conditions local to
the particular PHAs as to which HUD delayed the Rule’s implementation. For reasons explained

5

The complaint also raises a third claim, asserting that HUD acted contrary to statute in delaying the Rule’s
implementation by distributing housing funds in a manner that perpetuates racial segregation and does not provide
opportunity to rent quality housing throughout a metropolitan area. Compl. ¶¶ 158–163. The plaintiffs’ motion
does not address this argument, and the defendants do not respond to it. See generally Pls.’ Mot.; Defs.’ Opp’n.

17

below, HUD did not. HUD’s failure to connect the Rule’s delayed implementation in specific
PHAs by reference to local conditions means 24 C.F.R. § 888.113(c)(4) gave the agency no
authority to act without notice and comment, and also that HUD’s decision-making was arbitrary
and capricious. The plaintiffs thus have shown likely success on their claims’ merits.
1.

HUD Lacked Authority to Delay the Rule’s Implementation.

The plaintiffs argue that they likely will succeed on the merits of their claim that HUD’s
delay of the Rule is procedurally defective because HUD did not observe the requirements of
notice and comment. Pls.’ Mem. at 22–27. HUD, invoking a provision of the Rule, argues
unsuccessfully that the Secretary has broad authority to delay the Rule’s implementation
wholesale whenever the Secretary determines he has reason to do so. Defs.’ Opp’n at 21–27;
Hr’g Tr. (Dec. 19, 2017) at 30. 6 The plaintiffs, relying on the same Rule provision, argue that
the Secretary’s authority is more circumscribed, and does not reach HUD’s action here. Hr’g Tr.
at 7. “To choose between those competing [constructions], we look to the context in which the
words appear.” McDonnell v. United States, 136 S. Ct. 2355, 2368 (2016). The Court concludes
that although HUD may suspend an SAFMR designation or exempt a PHA within such a
designated area under circumstances in which SAFMRs may adversely impact the area or PHA’s
rental housing unit supply, HUD has made no such area-specific showing with respect to the 23
metropolitan areas as to which the agency delayed the Rule’s implementation. As such, the
plaintiffs have demonstrated likely success on the merits on their notice and comment claim. 7

6

All citations to the December 19, 2017 hearing transcript cite to a rough draft of the transcript. A final
draft of the transcript is forthcoming and will be made available on this case’s docket. Discrepancies between the
rough and final transcript drafts regarding page numbers may exist.
7
The defendants’ argument that HUD soon will rescind the Rule through notice and comment and thus moot
the plaintiffs’ notice and comment claim, see Defs.’ Opp’n at 31, only underscores that HUD has not yet invoked
notice and comment, and thus, that the plaintiffs’ claim is not moot. The issue of whether HUD’s planned action
would moot the plaintiffs’ claim is not yet ripe for review.

18

The APA generally requires a federal agency engaged in informal rulemaking to engage
in notice and comment procedures. See 5 U.S.C. § 553(b)–(c). “[A]n agency issuing a
legislative rule is itself bound by the rule until that rule is amended or revoked and may not alter
such a rule without notice and comment. Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir.
2017) (alterations and internal quotation marks omitted). “[A]n order delaying [a] rule’s
effective date” is “tantamount to amending or revoking a rule.” Id. at 6; see also Nat. Res. Def.
Council v. Abraham, 355 F.3d 179, 194 (2d Cir. 2004) (“[A]ltering the effective date of a duly
promulgated standard could be, in substance, tantamount to an amendment or rescission of the
standard[].”); Envt’l Def. Fund, Inc. v. EPA, 716 F.2d 915, 920 (D.C. Cir. 1983) (“[S]uspension
or delayed implementation of a final regulation normally constitutes substantive rulemaking
under APA § 553.”); Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580 n.28 (D.C.
Cir. 1981) (concluding that an order “deferring the requirement that coal operators supply lifesaving equipment to miners, [that] had palpable effects upon the regulated industry and the
public in general,” is “a substantive rule”); Nat. Res. Def. Council, Inc. v. U.S. EPA, 683 F.2d
752, 762 (3d Cir. 1982) (“If the effective date were not part of an agency statement such that
material alterations in that date would be subject to the rulemaking provisions of the APA, . . . an
agency could guide a future rule through the rulemaking process, promulgate a final rule, and
then effectively repeal it, simply by indefinitely postponing its operative date.” (internal
quotation marks omitted)).
The Rule, which requires PHAs administering the HCV program in select metropolitan
areas to use, as of January 1, 2018, SAFMRs, unquestionably is a substantive regulation delay of
which ordinarily would require notice and comment. HUD, however, did not delay the Rule’s
implementation through notice and comment. Thus, HUD’s action was lawful only if another

19

source of authority empowered HUD to delay the Rule’s implementation without notice or
comment. HUD asserts that 24 C.F.R. § 888.113(c) conferred such authority. HUD is wrong.
a)

Section 888.113(c)(4)’s Meaning

HUD’s failure to use notice and comment means that the agency’s authority to delay the
Rule’s implementation must flow, if at all, from § 888.113(c)(4). Section 888.113(c)(4) allows
HUD to temporarily suspend a region’s SAFMR designation or exempt a PHA from use of
SAFMRs under specified circumstances. The regulation provides, in relevant part:
HUD may suspend a Small Area FMR designation from a metropolitan area, or
may temporarily exempt a PHA in a Small Area FMR metropolitan area from use
of the Small Area FMRs, when HUD by notice makes a documented determination
that such action is warranted. Actions that may serve as the basis of a suspension
of Small Area FMRs are:
(i)

A Presidentially declared disaster area that results in the loss of a substantial
number of housing units;

(ii)

A sudden influx of displaced households needing permanent housing; or

(iii)

Other events as determined by the Secretary.

24 C.F.R. § 888.113(c)(4).
Section 888.133(c)(4)’s plain language makes clear that HUD may suspend an SAFMR
designation or exempt a PHA only upon one of three enumerated actions’ occurrence. Further,
under the canon of ejusdem generis, which “limits general terms which follow specific ones to
matters similar to those specified,” Wallaesa v. FAA, 824 F.3d 1071, 1081 (D.C. Cir. 2016)
(quoting Gooch v. United States, 297 U.S. 124, 128 (1936)), the third action must be construed to
reach only events “of the same class as those listed” in the preceding exemplar actions, DeNaples
v. Office of Comptroller of Currency, 706 F.3d 481, 490 n.5 (D.C. Cir. 2013) (quoting BLACK’S
LAW DICTIONARY 594 (9th ed. 2009)). See also Yates v. United States, 135 S. Ct. 1074, 1086
(2015) (“[E]jusdem generis [] counsels: ‘Where general words follow specific words in a
20

statutory enumeration, the general words are usually construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words.’” (quoting Wash. State
Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003)
(alterations omitted))); Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 586 (2008) (“Under
th[e] rule [of ejusdem generis], when a statute sets out a series of specific items ending with a
general term, that general term is confined to covering subjects comparable to the specifics it
follows.”); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1471 (D.C. Cir. 1997) (“[T]he rule of
ejusdem generis . . . limits general terms which follow specific ones to matters similar to those
specified.” (internal quotation marks omitted)).
Section 888.113(c)(4)’s first two enumerated actions each involve changes to local rental
housing market conditions that drive rents up, to voucher holders’ detriment. The over-arching
rationale for HUD’s suspension authority that the Rule’s preamble sets out confirms the
enumerated examples’ focus on local rental housing conditions. There, the Rule states that an
SAFMR designation’s suspension requires “a documented finding of adverse rental housing
market conditions.” Final Rule, 81 Fed. Reg. at 80,569. “[L]anguage in the preamble of a
regulation,” though “not controlling over the language of the regulation itself . . . is evidence of
an agency’s contemporaneous understanding of its proposed rules.” Wyo. Outdoor Council v.
U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999). Were the third action—“Other events as
determined by the Secretary”—intended to allow the Secretary unfettered discretion to suspend
an SAFMR designation or exempt a PHA for any reason, the two other enumerated examples
would be mere surplusage. As the Supreme Court has stressed in applying the canon of ejusdem
generis, if the disputed phrase was intended to have such a broad meaning “it is hard to see why”
the examples needed to be included at all. Begay v. United States, 553 U.S. 137, 142 (2008); see

21

also CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 295 (2011) (“We typically
use ejusdem generis to ensure that a general word will not render specific words meaningless.”).
The Supreme Court’s reasoning in Kucana v. Holder, 558 U.S. 233 (2010), is instructive.
The Attorney General claimed broad, unreviewable discretion, under 8 U.S.C. § 1252(a)(2)(B),
to act on a motion to reopen alien removal proceedings, but the Court held otherwise. 558 U.S.
at 237. The Court examined the provision’s two clauses insulating from judicial review, in
clause (i), certain discretionary administrative judgments authorized by specific statutes, and, in
clause (ii), “any other decision . . . the authority for which is specified under this subchapter.”
Id. at 246. Citing the “lead line” introducing both clauses, the “proximity of clauses (i) and (ii)
and the words linking them—‘any other decision,’” the Supreme Court reasoned that “[t]he
clause (i) enumeration . . . is instructive in determining the meaning of the clause (ii) catchall,”
ultimately reasoning “that Congress had in mind decisions of the same genre,” namely, “that
Congress barred court review of discretionary decisions only when Congress itself set out the
Attorney General’s discretionary authority in the statute.” Id. at 24647. Consequently, the Court
held, the judicial review bar encompassed only administrative decisions made discretionary by
statute, not by regulation. Id. at 253–54. As with Kucana, the “lead line” in § 888.113(c)(4) is
“Actions that may serve as the basis of a suspension of Small Area FMRs are . . . ,” which places
all three enumerated actions that follow within the category of actions that justify an SAFMR
suspension or PHA exemption. These actions’ proximity to the lead line and to one another, as
well as the “[o]ther events” term linking the actions, shows that § 888.113(c)(4), “[r]ead
harminously,” lets HUD suspend an SAFMR designation or exempt a PHA only for reasons “of
the same genre” as those in the first two enumerated actions. Kucana, 558 at 246–47.

22

Begay likewise is clarifying. The Armed Career Criminal Act imposes a sentencing
enhancement on a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions
“for a violent felony,” defined in part to mean a felony that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 922(e)(2)(B)(ii). “[T]he provision’s listed examples,”
Begay reasoned, “illustrate the kinds of crimes that fall within the statute’s scope” and “indicates
that the statute covers only similar crimes, rather than every crime that presents a serious
potential risk of physical injury to another.” 553 U.S. at 142 (internal quotation marks omitted).
A Congress intending “the statute to be all encompassing” Begay said, likely would not “have
needed to include the examples at all,” as the statute “would cover all crimes that present a
serious potential risk of physical injury” absent the examples. Id. (internal quotation marks
omitted). “These considerations taken together,” Begay concluded, “convince us that, to give
effect to every clause and word of this statute, we should read the examples as limiting the
crimes that [the statute] covers to crimes that are roughly similar, in kind as well as in degree of
risk posed, to the examples themselves.” Id. at 143 (alterations and internal quotation marks
omitted). Here, as in Begay, § 888.113(c)(4)’s “listed examples” limit the third action’s scope to
actions “that are roughly similar” to the first two actions. Id. at 142–43. The third action thus is
best construed to encompass only events that involve adverse rental housing market conditions. 8
Finally, the Rule’s localist phrasing and the interrelation of the Rule’s provisions, viewed
holistically, show that HUD may justify a particular SAFMR designation’s suspension or PHA’s
exemption only through a localized determination that conditions in a particular affected area or

8

Johnson v. United States abrogated Begay by voiding the phrase “otherwise involves conduct that presents
a serious potential risk of physical injury to another,” known as § 922(e)(2)(B)(ii)’s “residual clause,” for vagueness.
135 S. Ct. 2551, 2563 (2015). Begay nonetheless persuasively illustrates the ejusdem generis canon’s application.

23

PHA warrant such action. Section 888.113(c)(4)’s first sentence requires HUD to designate
SAFMR areas each year, which “designations will be permanent.” 24 C.F.R. § 888.113(c)(4).
Elsewhere, the Rule identifies (1) five fixed, objective “criteria used to determine those
metropolitan areas” to receive designations and (2) precise, dynamic “selection values” for each
criterion. Id. § 888.113(c)(1) (identifying selection criteria); SAFMR Area Designations, 81 Fed.
Reg. at 80,679 (identifying selection values); see also infra Part III.A.2. Section 888.113(c)(4)’s
second sentence allows HUD to suspend “a Small Area FMR designation from a metropolitan
area” and to exempt “a PHA in a Small Area FMR metropolitan area” upon “a documented
determination that such action is warranted.” Id. (emphasis added). Notably, this sentence does
not authorize HUD to suspend, in wholesale fashion, “all SAFMR designations” or exempt “all
affected PHAs” in “all metropolitan areas.” This language, rather, focuses HUD’s inquiry on
individualized reasons for suspending a particular designation or exempting a particular PHA.
The third sentence cabins HUD’s discretion to suspend an SAFMR designation or exempt
a PHA, enumerating three “[a]ctions” that “may serve as the basis of a suspension of Small Area
FMRs.” Id. 9 The first two actions—“A Presidentially declared disaster area that results in the
loss of a substantial number of housing units” and “A sudden influx of displaced households
needing permanent housing,” id. § 888.113(c)(4)(i)–(ii)—do not merely address free-floating
policy concerns. Each action, by nature, affects discrete, particular geographic areas. Thus, §
888.113(c)(4), read as a whole and in concert with surrounding provisions, requires HUD to
justify a particular SAFMR designation’s suspension or PHA’s exemption by reference to
specific rental housing market conditions local to the affected area. HUD may not, in other

9

Notably, again, this sentence references “a suspension of [SA]FMRs.” 24 C.F.R. § 888.113(c)(4)
(emphasis added).

24

words, suspend an SAFMR designation or exempt a PHA by citing abstract policy concerns or
conclusions extrapolated from data with no or only tenuous relation to the specific affected PHA.
The plaintiffs and defendants read § 888.113(c)(4) differently. The plaintiffs understand
HUD’s authority to suspend an SAFMR designation or exempt a PHA more narrowly, arguing
that the term “events” reaches only “unexpected events resulting in a sudden change in localized
rental market conditions.” Pls.’ Mem. at 26. “Whether market conditions have ‘negative
impacts on voucher families,’” the plaintiffs argue, “has nothing to do with whether any area
meets regulatory criteria for small area designation or whether its FMRs remain reliable.” Pls.’
Reply Mem. Supp. Mot. (“Pls.’ Reply”) at 9, ECF No. 25. Section 888.113(c)(4), however, by
its plain terms authorizes HUD to suspend an SAFMR designation or exempt a PHA even when
the conditions that triggered the SAFMR’s application to that metropolitan area or PHA still
apply, so long as a qualifying event occurs. HUD could have written § 888.113(c)(4) in terms
that would allow SAFMR suspensions or PHA exemptions only when a particular metropolitan
area or PHA no longer satisfied the criteria for SAFMR designation in the first place, but HUD
did not so limit the suspension/exemption authority that the regulation conferred. Cf. Wallaesa,
824 F.3d at 1083 (“If Congress had intended that narrow meaning, it knew how to say so.”).
Moreover, to construe the term “events” to reach only adverse rental housing market condition
changes that are “sudden” and “unexpected” has no basis in the regulatory text, is neither
compelled by nor necessary to give effect to the two preceding actions, and would leave HUD
powerless to suspend the Rule’s impact under circumstances that, though foreseen or gradual,
negatively impact voucher holders. Construing “events” to reach any “adverse rental housing
market conditions,” in contrast, finds support in the preambulatory text, gives effect to the two
preceding exemplar actions, and leaves HUD flexibility to suspend an SAFMR designation or

25

exempt a particular PHA under circumstances that, although either foreseen or gradual,
nonetheless negatively impact voucher holders.
The defendants, in turn, contend that § 888.113(c)(4) vests HUD with virtually boundless
authority to suspend SAFMR designations or exempt PHAs. The defendants specifically argue
that (1) the three enumerated actions merely illustrate, rather than exhaust, the sort of actions that
trigger HUD’s authority to suspend an SAFMR designation or exempt a PHA, and (2) the third
action gives HUD unreviewable discretion to suspend an SAFMR designation or exempt a PHA
for essentially any reason. Defs.’ Opp’n at 21–27. These arguments do not pass muster.
First, the defendants argue that § 888.113(c)(4) does not provide an exclusive list of
actions that may justify suspending an SAFMR designation or exempting a PHA, but merely
nonexclusive examples of such actions. Defs.’ Opp’n at 23–24. This construction is inconsistent
with § 888.113(c)(4)’s phrasing, which provides, “Actions that may serve as the basis of a
suspension of Small Area FMRs are,” then lists three specific actions. 24 C.F.R. § 888.113(c)(4)
(emphasis added). Section 888.113(c)(4)’s use of the term “are” rather than “include” compels a
conclusion that the enumerated examples constitute an exclusive, rather than merely illustrative,
list of actions that may justify suspending an SAFMR designation or exempting a PHA. Had
HUD wished to reserve to itself authority to suspend an SAFMR designation for reasons other
than an enumerated action’s occurrence, HUD could have drafted § 888.113(c)(4) to provide that
“Actions that may serve as the basis of a suspension of Small Area FMRs include” the three
enumerated actions. HUD, however, did not do that; by drafting § 888.113(c)(4) to contain the
term “are” rather than “include,” HUD limited its authority to suspend an SAFMR designation to
the occurrence of an enumerated action. Cf. Wallaesa, 824 F.3d at 1083.

26

Second, the defendants argue that even if HUD may suspend an SAFMR designation or
exempt a PHA only upon an enumerated action’s occurrence, the third action is phrased so
broadly as to give HUD essentially unreviewable discretion to suspend an SAFMR designation
or exempt a PHA for any reason. Defs.’ Opp’n at 22–26. The ejusdem generis canon, the
defendants say, is inapplicable because § 888.113(c)(4) contains no “general term which follows
specific ones.” Defs.’ Opp’n at 24 (alterations and internal quotation marks omitted). This is
incorrect. Section 888.113(c)(4) enumerates two specific actions—“A Presidentially declared
disaster area that results in the loss of a substantial number of housing units” and “A sudden
influx of displaced needing permanent housing”—followed by a third, more general action—
“Other events as determined by the Secretary.” 24 C.F.R. § 888.113(c)(4).
The defendants contend that the Rule’s overall context shows that ejusdem generis does
not apply, identifying three aspects of the Rule that the defendants characterize indicating “an
intent to be expansive.” Defs.’ Opp’n at 24–25. Although “the ejusdem generis canon does not
control when the whole context dictates a different conclusion,” Wallaesa, 824 F.3d at 1081
(alterations and internal quotation marks omitted), the defendants’ argument actually ignores the
regulation’s pertinent context and precise language. The defendants observe that the regulation
uses “self-contained, broadly permissive language.” Defs.’ Opp’n at 25. The ejusdem generis
canon applies, however, to language that otherwise reads broadly. See Wallaesa, 824 F.3d at
1081. The defendants note that “the language introducing the enumerated examples contains no
indication that those examples are meant to restrict the circumstances under which HUD may
find a suspension warranted.” Defs.’ Opp’n at 25. The ejusdem generis canon, however,
requires no clear statement that specific language limits general language’s scope. Indeed, to
require such clarity would defeat the canon’s purpose of clarifying ambiguous statutes. Finally,

27

the defendants observe that the third action’s wording “specifically states that the nature of the
referenced ‘events’ are those that are ‘determined by the Secretary,’ not those that are similar in
kind to the preceding examples,” which the defendants argue “forecloses the notion that the
nature of the ‘events’ referenced therein is to be limited by the preceding examples.” Id. That
HUD has some discretion to determine which events justify suspending an SAFMR designation
is undisputed, however; the question is whether that discretion is bounded. Here, the sequence of
two specifically-phrased actions followed by a generally-phrased third action indicates that the
first two actions limit HUD discretion under the third action. To construe the third action as
reaching any event the first two actions do not reach would defeat the purpose of enumerating an
exclusive list of “[a]ctions that may serve as the basis of a suspension of Small Area FMRs.” 24
C.F.R. § 888.113(c)(4).
Nor would applying the ejusdem generis canon render the phrase “as determined by the
Secretary” superfluous. This language, read in context, can be read to vest HUD with discretion
to determine whether a qualifying event warrants an SAFMR designation’s suspension or a
PHA’s exemption, such that HUD need not suspend a designation or exempt a PHA each time a
designated area or PHA experiences a disaster. This language does not allow HUD to determine
whether something qualifies as an “event” in the first place. In other words, § 888.113(c)(4)(iii)
gives HUD discretion, but cabins that discretion by allowing its exercise only upon a qualifying
“event[’s]” occurrence. The defendants compare the phrase “other events as determined by the
Secretary” to the language of 49 U.S.C. § 44702(d)(2), which authorizes the Federal Aviation
Administration to “rescind a delegation . . . at any time for any reason the [agency] considers
appropriate”—language the D.C. Circuit held “very clearly commits the renewal/nonrenewal
designation to agency discretion.” Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003). The

28

phrase at issue here, however, is considerably narrower than § 44702(d)(2)’s language.
Steeholdt, if anything, cuts against the defendants’ position by illustrating how an agency might
draft a rule that confers the boundless discretion HUD claims to possess.
Finally, the defendants invoke the Auer doctrine to argue that their construction of the
regulation is due deference even if the regulation’s meaning is not clear. Defs.’ Opp’n at 25–26.
As explained in detail above, however, the defendants’ construction is “inconsistent with the
regulation,” Press Commc’ns LLC, 875 F.3d at 1121, and thus due no deference. 10
b)

HUD Failed to Identify Local Adverse Rental Housing Market Conditions

Whether HUD invoked a proper triggering “event” to justify delaying by two years the
Rule’s implementation thus turns on whether HUD based the Rule’s delay on an event involving
local “adverse rental housing market conditions.” The Suspension Memorandum presents three
rationales for delaying the Rule’s implementation: (1) the Interim Report’s findings showing the
Rule’s potentially negative impact on voucher holders; (2) comments received in response to the
Reducing Regulatory Burden notice; and (3) HUD’s failure timely to create SAFMR guidance
and technical assistance for affected PHAs. Suspension Mem. at 5–8. The latter two rationales
have nothing to do with local rental housing market conditions in the 23 affected PHAs, and so
cannot independently sustain HUD’s invocation of § 888.113(c)(4)’s third action. As to the
Rule’s potential adverse impact on voucher holders, the Suspension Memorandum identified
evidence from the Interim Report, which evaluated the demonstration project’s preliminary
findings, that SAFMRs may decrease rental housing unit stock. Id. at 5–6. The demonstration

10

A conclusion that 24 C.F.R. § 888.113(c)(4) does not give HUD essentially boundless discretion to suspend
an SAFMR designation or exempt a PHA for any reason, but rather provides meaningful standards by which a court
may evaluate the lawfulness of HUD’s actions, necessarily also defeats the defendants’ contention that HUD’s delay
of the SAFMR Rule’s implementation is not reviewable. Defs.’ Opp’n at 19–21; see Cody v. Cox, 509 F.3d 606,
610 (D.C. Cir. 2007) (“[Re]but[ting] the presumption that agency action is judicially reviewable” requires a
defendant to show that “the relevant statute is drawn so that a court would have no meaningful standard against
which to judge the agency’s exercise of discretion.” (internal quotation marks omitted)).

29

project’s 7 pilot PHAs and the 200+ Rule-affected PHAs essentially do not overlap, however,
and HUD has identified no basis to conclude that any lessons on SAFMRs’ efficacy that can be
extrapolated from the demonstration project findings apply to the Rule-affected PHAs, as
material differences in the pilot and Rule-affected PHAs’ relevant characteristics exist.

11

Indeed, given that HUD selected the pilot and Rule-affected PHAs using entirely different
criteria to serve entirely different purposes, any assumption that the pilot PHAs represent the
Rule-affected PHAs, or vice versa, in relevant respects seems highly questionable. HUD thus
has failed to identify adverse rental housing market conditions local to the 23 Rule-affected
areas, and so cannot invoke the authority that § 888.113(c)(4) gives the agency to suspend an
SAFMR designation or exempt a PHA without notice and comment.
The Suspension Memorandum primarily relied on the Interim Report’s findings that
SAFMR use caused a net loss of units available to voucher holders in the pilot PHAs. The
Interim Report stated that although the pilot PHAs’ use of SAFMRs
should increase the pool of units potentially available . . . in high-rent FMRs, while
reducing the pool of units that are located in lower-rent ZIP codes . . . . the gain in
units with rents below the applicable FMR in high-rent ZIP codes did not offset the
decrease in the number of units in the low-rent and moderate-rent ZIP codes,
resulting in a net loss of units that are potentially available to voucher families.
Suspension Mem. at 5; see Interim Report at vii. The Suspension Memorandum concluded that
“[t]he net effect across the 7 study PHAs is a loss of over 22,000 units (3.4 percent) that might
otherwise have been affordable to voucher families.” Suspension Mem. at 5.

11

The one PHA that the demonstration project and Rule both affected is the Housing Authority of Cook
County, Illinois. Compare Demonstration Project, 77 Fed. Reg. at 69,652, with SAFMR Area Designations, 81 Fed.
Reg. at 80,679; see also Hr’g Tr. at 8. The Court, pursuant to Federal Rule of Evidence 201, judicially notices that
Cook County is in the Chicago-Joliet-Naperville, IL HUD Metro FMR Area. See Chicago, ENCYCLOPAEDIA
BRITANNICA, https://www.britannica.com/place/Chicago (last visited Dec. 23, 2017) (describing Chicago as the
“seat of Cook county”); Cook County Map Application, COOK CTY. GOV’T ,
https://maps.cookcountyil.gov/cookviewer/mapViewer.html (last visited Dec. 23, 2017) (showing Chicago and
Cook County’s overlap overlap); FED. R. EVID. 201(b).

30

The problem with HUD’s reliance on demonstration project data to justify the Rule’s
delay is that HUD has failed to show that the pilot and Rule-affected PHAs share similar
characteristics, such that any conclusions as to SAFMRs’ efficacy that can be extrapolated from
the demonstration project’s findings apply to the Rule-affected PHAs. For example, in at least
one significant way, the Long Beach pilot PHA did not demographically represent the Ruleaffected PHAs. Long Beach’s high-rent ZIP codes contained only 11 percent of the PHA’s
rental housing units, a lower figure than for any other pilot PHA. Interim Report at 28 & tbl. 41. By contrast, high-rent ZIP codes in each Rule-affected area must, according to the selection
criteria, contain at least 20 percent of the area’s total rental housing unit supply. See SAFMR
Area Designations, 81 Fed. Reg. at 80,679; 24 C.F.R. § 888.113(c)(1). 12 This contrast is
significant because SAFMRs increase rental unit affordability in high-rent ZIP codes and
decrease rental unit affordability in low-rent ZIP codes, and thus reduce overall rental housing
unit supply more dramatically in areas like Long Beach, which have relatively few high-rent
units, than areas with more high-rent units. Interim Report at 32–34. “[I]f fewer rental units . . .
are in high-rent ZIP Codes than in low-rent ZIP Codes . . . then the shift to SAFMRs will mean
fewer units” available. Id. at 34.
Long Beach, though only one of the seven pilot PHAs, distorted the demonstration
project’s findings because much of the net decrease in rental housing unit supply that the project
attributed to SAFMRs occurred in Long Beach. The Interim Report found that decreases in
rental housing unit supply largely were concentrated in Long Beach, which saw a greater than 10

12

The Interim Report defined a high-rent ZIP code as a zip code with a “rent ratio”—the ratio of a twobedroom SAFMR over a two-bedroom metropolitan area FMR—of greater than 1.1, and a low-rent ZIP code as a
zip code with a rent ratio of below 0.9. Interim Report at 27.

31

percent net loss of rental housing unit supply. Id. at vii. 13 By contrast, two pilot PHAs—Laredo
and Mamaroneck—saw “virtually no change in the overall number of units” available after
implementing SAFMRs whatsoever. Id. at 33 & tbl. 4-5. Long Beach, an area demographically
unrepresentative of the Rule-affected areas, thus skewed the demonstration project’s findings.
The pilot PHAs also did not represent Rule-affected areas with respect to the SAFMR
mandate’s geographic scope within a metropolitan area. Only two of the seven pilot PHAs—
Laredo and Mamaroneck—mandated SAFMR use throughout the entire metropolitan area. Id. at
33. Laredo and Mamaroneck were “unique among the SAFMR PHAs in that their jurisdictions
are the same as the geographies for which their respective FMRs are calculated.” Id. Laredo and
Mamaroneck, in other words, were the only PHAs in their respective metropolitan areas, and, as
such, implementation of SAFMRs applied across those two PHAs’ entire metropolitan areas.
Five of the seven pilot PHAs, however, did not make PHA use mandatory across an entire
metropolitan area. Id. In contrast, all PHAs within each metropolitan area that the Rule affects
use SAFMRs. 24 C.F.R. § 888.113(c)(3); Final Rule, 81 Fed. Reg. at 80,568. An SAFMR’s
geographic scope within a metropolitan area matters because “[i]f only a few agencies within a
metropolitan area use Small Area FMRs, voucher holders may have difficulty moving to highopportunity neighborhoods outside those agencies’ jurisdiction.” CBPP Decl. ¶ 7. “For
example, if an urban agency adopts Small Area FMRs but the surrounding suburbs do not, then
families will face the same cost hurdles that currently prevent them from moving to lowerpoverty, suburban neighborhoods.” Id. Indeed, HUD itself acknowledged this conclusion during
both the demonstration project and the rulemaking period. See NPRM, 81 Fed. Reg. at 39,224;
Proposed Demonstration Project, 75 Fed. Reg. at 27,811. When PHAs in low-rent ZIP codes,

13

The Dallas pilot PHA also saw a large decrease in number of rental housing units lost, but this loss
amounted to only 4% of the Dallas pilot PHA’s total rental housing unit supply. Interim Report at vii.

32

but not PHAs in high-rent ZIP codes, adopt SAFMRs, voucher holders will face rising rents in
low-income areas but no commensurate decrease in rents in high-rent ZIP codes. SAFMRs’
success thus requires all PHAs within a metropolitan area to adopt SAFMRs. Laredo and
Mamaroneck, the only two pilot PHAs that implemented SAFMRs throughout their entire
metropolitan areas, significantly were the only pilot PHAs that saw virtually no decrease in
rental housing unit supply. Interim Report at 33. The lack of any metropolitan area-wide
SAFMR mandate in five of seven pilot PHAs’ respective metropolitan areas raises yet another
question about the demonstration project findings’ applicability to the Rule-affected areas, which
mandate SAFMR use throughout their entire metropolitan areas.
That the pilot PHAs were not representative of Rule-affected PHAs is unsurprising, as
HUD used entirely different criteria to select these two groups. HUD used five fixed, objective
“selection criteria” to determine which PHAs the Rule would cover: the (1) “number of vouchers
under lease in the metropolitan FMR area;” (2) “percentage of the standard quality rental stock,
within the metropolitan FMR area is in small areas (ZIP codes) where the Small Area FMR is
more than 110 percent of the metropolitan FMR area;” (3) “percentage of voucher families living
in concentrated low income areas;” (4) “percentage of voucher families living in concentrated
low income areas relative to the percentage of all renters within these areas over the entire
metropolitan area;” and (5) “vacancy rate for the metropolitan area.” 24 C.F.R. § 888.113(c)(1).
HUD also, by notice published in the Federal Register, identified objective “selection values” for
each criterion “to determine . . . metropolitan FMR areas subject to Small Area FMRs”: (1)
“[t]here are at least 2,500 HCV under lease;” (2) “[a]t least 20 percent of the standard quality
rental stock, within the metropolitan FMR area is in small areas (ZIP codes) where the Small
Area FMR is more than 110 percent of the metropolitan FMR;” (3) “[t]he percentage of voucher

33

families living in concentrated low income areas relative to all renters within the area must be at
least 25 percent;” (4) “[t]he measure of the percentage of voucher holders living in concentrated
low income areas relative to all renters within these areas over the entire metropolitan area
exceeds 155 percent;” and (5) “[t]he vacancy rate for the metropolitan area is higher than 4
percent.” SAFMR Area Designations, 81 Fed. Reg. at 80,679. 14
Entirely different criteria guided the pilot PHAs’ selection. HUD first constructed a pool
of PHAs that met seven initial criteria, which were entirely different than the criteria HUD used
to determine the Rule’s coverage. HUD included in the initial pool each PHA that: (1) “[h]ad at
least 500 vouchers in use as of September 30, 2011;” (2) “[h]ad at least 10 housing choice
voucher (HCV) tenants living in ZIP Codes where the SAFMR exceeded the metropolitan area
Fair Market Rent (FMR) by more than 10 percent in fiscal year 2012;” (3) “[h]ad at least 10
HCV tenants living in ZIP Codes where the SAFMR was more than 10 percent less than the
metropolitan area FMR;” (4) “[h]ad attained at least 95 percent HCV family reporting in Public
and Indian Housing Information Center;” (5) “[w]as not troubled, as determined by the Section 8
Management Assessment Program;” (6) “[h]ad the administrative capacity to carry out the
SAFMR program;” and (7) “[h]ad not been involved in litigation that would seriously impede its
ability to administer the HCV program.” Demonstration Project, 77 Fed. Reg. at 69,652. These
criteria produced a pool of 247 eligible PHAs, which HUD organized into eight selection clusters
based on each PHA’s (1) number of vouchers (small or large), (2) metropolitan area twobedroom FMR (low or high), and (3) number of working-age heads of household (low or high

14

With respect to the fifth criterion, HUD defined a metropolitan area’s vacancy rate as “the number of
Vacant For Rent Units divided by the sum of the number of Vacant For Rent Units, the number of Renter Occupied
Units, and the number of Rented, not occupied units.” SAFMR Area Designations, 81 Fed. Reg. at 80,679. HUD
calculated the vacancy rate “using data from the 1-year American Community Survey (ACS) tabulations” by
averaging values “from the 3 most current ACS 1 year datasets available.” Id.

34

percentage). Interim Report at 99 & tbl. A-1. HUD then randomly ordered PHAs within each
cluster, and invited the PHA at the top of each cluster to participate in the demonstration project.
Id. at 100. When a PHA declined to participate, HUD invited a cluster’s next ranking PHA. Id.
After several rounds of invitations, five PHAs had agreed to participate in the demonstration
project. Id. Finally, HUD included in the project two PHAs from the Dallas metropolitan area,
which have used SAFMRs since 2011 pursuant to a settlement agreement. Id. at 3.
HUD’s decision to use different selection criteria for the pilot PHAs and Rule-affected
areas reflects the different purposes HUD intended the demonstration project and Rule to serve.
HUD “randomly selected five PHAs for the demonstration that differed across various
characteristics” because HUD sought “[t]o test how SAFMRs may potentially affect a range of
PHA types.” Interim Report at 2. In promulgating the Rule, however, HUD specifically targeted
“those metropolitan areas . . . where establishing FMRs by ZIP code areas has the potential to
significantly increase opportunities for voucher families.” Final Rule, 81 Fed. Reg. at 80,568.
HUD’s different objectives in undertaking the demonstration project and promulgating the Rule
further illustrate the inadequacy of HUD’s reliance on the demonstration project’s preliminary
findings to justify the Rule’s delay.
Finally, HUD’s incorporation into the Rule of various provisions designed to protect
against the very concerns that the demonstration project identified further undermines HUD’s
reliance on demonstration project data to delay the Rule. Most significantly, as discussed above,
the Rule requires all PHAs within an affected metropolitan area to use SAFMRs, addressing a
crucial issue that the demonstration project uncovered. 24 C.F.R. § 888.113(c)(3); Final Rule, 81
Fed. Reg. at 80,568. The Rule also contains several other provisions to protect voucher holders
against issues the demonstration project revealed, including (1) “limit[ing] the annual decrease in

35

Small Area FMRs to no more than 10 percent of the area’s FMR in the prior fiscal year” and
allowing PHAs to (2) “hold harmless those families remaining in place from payment standard
reductions,” (3) “establish a new payment standard for families under HAP contract between the
full ‘hold harmless’ option . . . and the new payment standard based on the Small Area FMR,”
(4) “establish different policies regarding how decreases in payment standards will apply [to
voucher holders] for designated areas within their jurisdiction,” and (5) “request and receive
approval to establish an exception payment standard promptly for a ZIP Code area if necessary
to react to rapidly changing market conditions or to ensure sufficient rental units are available for
voucher families.” Final Rule, 81 Fed. Reg. at 80,572–74. HUD has discounted the importance
of two of these five enumerated voucher holder protections incorporated into the Rule, noting
that the 10 percent SAFMR cap “may only slow the pace of the loss of units, as opposed to
preventing the overall decline in the number of units available to HCV families,” and that the
“hold harmless” provision does not “protect[] families that must move to a new unit or []
applicant families off the waiting list who are trying to lease a unit on the program for the first
time.” Suspension Mem. at 5–7. HUD seemingly has not, however, considered or addressed the
Rule’s other voucher holder protection provisions. 15
In sum, the significant differences between the (1) pilot and Rule-affected PHAs, (2)
selection criteria HUD used to identify each group, and (3) purposes HUD sought the
demonstration project and Rule to achieve impose on HUD a burden to show that any
conclusions the Interim Report extrapolated from the demonstration project’s findings apply to

15
As the Institute for Policy Integrity at New York University School of Law, which filed a brief as amicus
curiae in support of plaintiffs’ motion for a preliminary injunction, observe, various provisions of the Rule are
“expressly designed to limit Rule-related increases in tenants’ rent burdens . . . . [b]ut HUD makes no mention of
these differences between the demonstration project and the Small Area Rule, even as it relies on the Interim
Evaluation of the demonstration projects as a justification for suspending implementation of the Rule.” Amicus Br.
at 8, ECF No. 21.

36

the specific Rule-affected areas. Neither the Suspension Memo nor Letter to PHAs, however,
even attempt to make such a showing. Nor, for that matter, does the defendants’ briefing. The
plaintiffs thus have established likely success on the merits of their notice and comment claim.
2. HUD’s Delay of the Rule’s Implementation Was Arbitrary and Capricious
The plaintiffs also argue that HUD’s delay of the Rule’s implementation was arbitrary
and capricious. Pls.’ Mem at 28–34. According to the plaintiffs, HUD failed adequately to
explain its reasons for delaying the Rule’s implementation. Id. at 28. As explained above, §
888.113(c)(4) required HUD to identify adverse rental housing market conditions local to a
particular area or PHA to justify suspending an SAFMR designation or exempting a PHA in that
area. HUD, as explained, did no such thing. Instead, HUD attempted to justify delaying the
Rule’s implementation by two years by citing data based on a small number of pilot PHAs,
which did not represent the Rule-affected areas in terms of demographics or scope and which
HUD selected partially randomly (1) on the basis of entirely different criteria than those HUD
used to select the Rule-affected areas and (2) for entirely different objectives than HUD sought
to achieve through the Rule’s promulgation. HUD, in so doing, “relied on factors”—i.e., the
demonstration project data—“which [law] ha[d] not intended it to consider” and “entirely failed
to consider an important aspect of the problem”—i.e., local rental housing market conditions in
the Rule-affected areas. Mayo, 875 F.3d at 19 (quoting State Farm, 463 U.S. at 43 (alterations
omitted)). HUD’s two-year delay of the Rule’s implementation therefore was arbitrary and
capricious. As such, the plaintiffs have demonstrated a likelihood of success on the merits as to
their arbitrary and capricious claim, for essentially the same reasons they have shown likely
success on the merits as to their notice and comment claim.
B.

Risk of Irreparable Harm

37

The plaintiffs argue that they will suffer irreparable harm if HUD does not implement the
Rule by January 1, 2018. “The party seeking a preliminary injunction must make two showings
to demonstrate irreparable harm.” League of Women Voters, 838 F.3d at 7. “First, the harm
must be ‘certain and great,’ ‘actual and not theoretical,’ and so ‘imminent that there is a clear and
present need for equitable relief to prevent irreparable harm.’” Id. at 7–8 (quoting Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (alterations omitted)).
“Second, the harm ‘must be beyond remediation.’” Id. at 8 (quoting Chaplaincy, 454 F.3d at
297). Here, plaintiffs Crystal Carter, Tiana Moore, and OCA each have made a requisite
showing of irreparable harm from the Rule’s delay.
1.

Crystal Carter

Plaintiff Crystal Carter has demonstrated a risk of irreparable injury sufficient to warrant
a preliminary injunction. Ms. Carter and her five minor children currently use a Housing Choice
Voucher to rent a four-bedroom house in the City of Hartford, Connecticut. Carter Decl. ¶ 1.
Three of Ms. Carter’s children attend high-performing schools in the Simsbury School District
through Hartford’s Open Choice school integration program. Id. ¶ 4. Ms. Carter wishes to use
her voucher to move to the town of Simsbury in Hartford County, Connecticut, to be closer to
those schools. Id. ¶ 6. Simsbury’s poverty rate of 3.4 percent, Decl. of Sasha SambergChampion (“Pls.’ Decl.”), Ex. I, Poverty Data for Simsbury Town, CT, ECF No. 16-9, is much
lower than the poverty rate in Ms. Carter’s ZIP code, which is 32.2 percent, Pls.’ Decl., Ex. G,
Poverty Data for 06114 ZIP Code, ECF No 16-7. Simsbury offers higher quality education and a
safer living environment for Ms. Carter’s entire family than does Hartford. Carter Decl. ¶ 6. As
the plaintiffs observe, “[l]iving close to her children’s schools has obvious benefits for any
parent, including reducing the children’s commute times, giving them more opportunity to

38

engage with their classmates out of school, and allowing the parent to be more involved with her
children’s schools.” Pls.’ Mem. at 39.
The Rule’s implementation would enable Ms. Carter to move her family from Hartford to
Simsbury; the Rule’s suspension deprives her of the Rule’s benefits. If the Rule goes into effect,
the FMR for a four-bedroom unit in much of Simsbury will be $1,940 per month for Fiscal Year
2018. See Pls.’ Decl., Ex. F, 2018 Hartford SAFMRs at 2, ECF No. 16-6. 16 Should the Rule’s
implementation remain delayed, however, the FMR for a four-bedroom dwelling in Simsbury
will be $1,620 per month, see Pls.’ Decl., Ex. E, 2018 Hartford FMRs at 5, ECF No. 16-5—an
amount that Ms. Carter’s experience shows to be insufficient to find an appropriate in Simsbury.
Carter Decl. ¶ 7. The fact that Ms. Carter’s PHA may implement SAFMRs voluntarily, see
Suspension Mem. at 3; Letter to PHAs at 3, does not prevent Ms. Carter from showing
irreparable harm. For the reasons explained above, SAFMRs fail to assist voucher holders to
relocate to high-opportunity areas unless all or substantially all PHAs within a metropolitan area
implement SAFMRs, meaning that a single PHA, such as Ms. Carter’s, likely will not implement
SAFMRs voluntarily. Further, HUD’s counsel conceded at oral argument that no Rule-affected
PHA has come forward to opt into the Rule voluntarily, Hr’g Tr. at 18–19, which likewise
illustrates the unlikeliness that Ms. Carter’s PHA will implement SAFMRs voluntarily.
The defendants correctly observe that Ms. Carter’s children already attend school in
Simsbury, Defs.’ Opp’n at 34, but do not dispute that Ms. Carter would enjoy the obvious
benefits of “be[ing] closer to [her] children’s schools” and “liv[ing] in a safer and healthier
neighborhood environment for [her] children” if she lived in Simsbury. Carter Decl. ¶ 6. The

16

The Court, relying on the United States Postal Service’s “Look Up A ZIP Code” tool, see Look Up A Zip
CodeTM, U.S. POSTAL SERV., https://tools.usps.com/go/ZipLookupAction!input.action?mode=2&refresh=true (last
visited Dec. 23, 2017), takes judicial notice that the ZIP Code for much of Simsbury is 06070. FED. R. EVID. 201.

39

defendants argue that “the mere possibility . . . that [Ms. Carter’s] school-age children may
potentially earn a higher income in their mid-twenties if they move at some point to a lowerpoverty area is entirely speculative and in no way imminent.” Defs.’ Opp’n at 34. The
plaintiffs, however, identify “robust evidence that children who moved to lower-poverty areas
when they were young (below age 13) are more likely to attend college,” to “have substantially
higher incomes as adults,” and to “live in better neighborhoods themselves as adults,” and are
“less likely to become single parents.” Raj Chetty et al., The Effects of Exposure to Better
Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106
AM . ECON. REV. 855, 899 (2016); see also LORA ENGDAHL, P OVERTY & RACE RES. ACTION
COUNCIL, NEW NEIGHBORHOODS, NEW SCHOOLS: A P ROGRESS REPORT ON THE BALTIM ORE
HOUSING MOBILITY P ROGRAM 27–28 (2009) (finding that relocation to low-poverty areas
produces significant mental health benefits to Housing Choice Voucher holders); MARGERY
AUSTIN TURNER & LYNETTE RAWLINGS, URBAN INST ., P ROM OTING NEIGHBORHOOD DIVERSITY:
BENEFITS, BARRIERS, AND STRATEGIES 2 (2009) (describing the myriad ways “[n]eighborhoods
matter to the well-being of children and families.”). The weight of this research certainly
indicates that Ms. Carter’s family may enjoy some additional benefits from living in Simsbury.
The defendants also argue that Ms. Carter has not “identified any imminent risk that she
or her family will actually be subject to criminal activity in Hartford.” Defs.’ Opp’n at 34. This
arguments set the bar too high. “[A]s a preliminary injunction requires only a likelihood of
irreparable injury, . . . Damocles’s sword does not have to actually fall . . . before the court will
issue an injunction.” League of Women Voters, 838 F.3d at 8–9. Irreparable harm can flow not
only from actual criminal victimization, but also from “continued exposure to [a] high crime rate
. . . and unsafe conditions of [one’s] present community.” Bronson v. Crestwood Lake Section 1

40

Holding Corp., 724 F. Supp. 148, 153 (S.D.N.Y. 1989); see also ENGDAHL, supra, at 27
(“Families in disadvantaged neighborhoods are at higher risk for disease and earlier death likely
due” in part to “the cumulative stress arising from living in unsafe neighborhoods with limited
resources.”); TURNER & RAWLINGS, supra, at 3 (“Young people who live in high-crime areas are
more likely to commit crimes themselves.”).
The defendants observe that Ms. Carter has not “alleged that she has applied for housing
in Simsbury, that if she did apply she would be likely to be selected despite competition from
other applicants, or that there are sufficient landlords in Simsbury participating in the HCV
program and accepting voucher-holding tenants including, in particular, her.” Defs.’ Opp’n at
34. To apply for housing in Simsbury prior to the Rule’s implementation, however, would be
futile—the Rule’s premise is that voucher holders such as Ms. Carter cannot obtain housing in
high-income areas like Simsbury because current payment standards do not suffice to make such
housing affordable. Ms. Carter has established that she intends to apply for and obtain such
housing as soon as she possibly can. Carter Decl. ¶¶ 6–7. A landlord’s discrimination against
voucher holders, moreover, would violate Connecticut law. See Con. Gen. Stat. § 46a-64c;
Comm’n on Human Rights & Opportunities v. Sullivan Assocs., 739 A.2d 238, 241 (Conn.
1999). Furthermore, HUD’s own calculation, based on detailed housing market data, that an
FMR of $1,940 will suffice to allow a voucher holder to rent a four-bedroom unit in Simsbury
belies HUD’s speculative assertion that such units may be unavailable to Ms. Carter even under
the Rule, see Defs.’ Opp’n at 34.
Finally, the defendants dispute that any expenses associated with Ms. Carter’s longer
commute would be sufficiently burdensome to warrant injunctive relief. Id. This argument
mischaracterizes the nature of the harm that Ms. Carter’s family would suffer from her commute.

41

The relevant harm is not primarily an economic injury, but “the opportunity cost of spending
hours on a bus instead of participating in after school activities, studying, and engaging in active
play.” Pls.’ Reply at 21.
2. Tiara Moore
Plaintiff Tiara Moore likewise has demonstrated a risk of irreparable injury sufficient to
warrant a preliminary injunction. Ms. Moore and her minor child live in an apartment in the City
of Chicago, Illinois. Moore Decl. ¶ 1. The Chicago Housing Authority has issued Ms. Moore a
Housing Choice Voucher for $1,207 per month for a two-bedroom unit. Id. ¶¶ 4, 7. Ms. Moore
wishes to move to DuPage County, Illinois, to live in a neighborhood that will afford her family
greater employment opportunities, higher quality education, and a safer living environment, as
well as to be nearer to Ms. Moore’s mother, who provides child care so that Ms. Moore can
work. Id. ¶¶ 5–6. DuPage County’s poverty rate of 7.4 percent, Pls.’ Decl., Ex. J, Poverty Data
for DuPage County, Ill., ECF No. 16-10, is also much lower than the poverty rate in Ms.
Moore’s ZIP code, which is 33.8 percent, Pls.’ Decl., Ex. H, Poverty Data for 60644 ZIP Code,
ECF No 16-8. Ms. Moore has not, however, been able to locate any two-bedroom rental units in
DuPage County for $1,207 per month. Id. ¶ 7. The Rule would enable Ms. Moore to move her
family from the City of Chicago to DuPage County. For fiscal year 2018, the FMR for a twobedroom unit in the broad Chicago metropolitan area, which includes DuPage County, would be
$1,180 per month. Pls.’ Decl., Ex. C, Chicago FMRs at 1, ECF No. 16-3. In contrast, under the
Rule, 41 of DuPage County’s ZIP codes would have SAFMRs exceeding $1,180 per month, with
SAFMRs in the highest-cost ZIP codes reaching $1,770 per month. Pls.’ Decl., Ex. D, 2018
Chicago SAFMRs, ECF No. 16-4. This difference in voucher purchasing power throughout
much of DuPage County would dramatically improve Ms. Moore’s ability to find suitable

42

housing there. In addition, Ms. Moore will, absent the Rule’s implementation, continue to incur
opportunity and transportation costs arising from her daily trips to bring her child to and from her
mother’s house for child care. Moore Decl. ¶ 6.
The defendants argue that Ms. Moore will suffer no injury from the Rule’s delay, as the
Rule would not benefit her in the first place. Defs.’ Opp’n at 35. The defendants observe that
the Chicago Housing Authority is a Moving to Work PHA and so would be exempt from use of
SAFMRs even if the Rule were implemented. See id., Attach. 3, Decl. of Marianne Nazzaro ¶¶
2–3, ECF No. 24-3; Final Rule, 81 Fed. Reg. at 80,578. Ms. Moore, however, seeks to move to
DuPage County, not to Chicago. Moore Decl. ¶¶ 5–6, 9. The DuPage County PHA, not the
Chicago Housing Authority, sets payment standards for DuPage County, see 24 C.F.R. §
982.503(a)(1) (providing that PHAs set payment standards for their own jurisdictions), and,
unlike the Chicago Housing Authority, is not a Moving to Work PHA, see Moving to Work
(MTW) - Participating Sites, U.S. DEP’T HOUSING & URBAN DEV.,
https://www.hud.gov/program_offices/public_indian_housing/programs/ph/mtw/mtwsites (last
visited Dec. 23, 2017). The Rule’s implementation thus would benefit Ms. Moore. 17
3. OCA
Finally, Plaintiff OCA has demonstrated a risk of irreparable injury sufficient to warrant a
preliminary injunction. An organization, to show irreparable harm, must show first that “the
‘actions taken by the defendant have perceptibly impaired the organization’s programs.” League
of Women Voters, 838 F.3d at 8 (quoting Fair Emp’t Council of Greater Wash., Inc. v. BMC
Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)). “If so, the organization must then also show

17

The defendants also assert that their arguments as to why Ms. Carter has not shown irreparable harm apply
equally to Ms. Moore. Defs.’ Opp’n at 34–35. The defendants’ arguments fail as to Ms. Moore for the same reason
they fail as to Ms. Carter.

43

that the defendant’s actions ‘directly conflict with the organization’s mission.” Id. (quoting Nat’l
Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). “[O]bstacles
[that] unquestionably make it more difficult for [an organization] to accomplish [its] primary
mission . . . provide injury for purposes [of] . . . irreparable harm.” Id. at 9. OCA works “to
promote access to opportunity,” including educational, employment, and housing opportunity,
“for all people, and specifically to address the disproportionate isolation from opportunity
experienced by Blacks and Latinos in Connecticut due to residential segregation.” Pls.’ Mot.,
Attach. 5, Decl. of Erin Boggs, Exec. Dir., OCA (“OCA Decl.”) ¶ 2, ECF No. 15-5. “OCA’s
central focus in this work is leveraging affordable and subsidized housing programs to enable
low-income families to access housing outside of areas with concentrated poverty and
segregation.” Id. Much of this work involves enabling families who receive housing vouchers
to move to higher-opportunity areas and addressing the concentration of voucher holders (who,
in the Hartford area, primarily are nonwhite) in high-poverty, segregated areas. Id. ¶¶ 4–9. For
example, OCA works to improve housing mobility programs for voucher users and to increase
the supply of rental housing suitable for voucher holders in high-opportunity neighborhoods. Id.
OCA has shown that the Rule’s delay will “perceptibly impair[]” OCA’s programs and
“directly conflict with the organization’s mission.” League of Women Voters, 838 F.3d at 8. The
Rule’s delay frustrates OCA’s ability to assist voucher holders gain access to greater opportunity
in several ways. First, the delay frustrates OCA’s “engage[ment] with . . . developers to
encourage the acquisition and construction of housing that is affordable to voucher holders in
non-concentrated, high-opportunity areas in the Hartford metropolitan area,” because “[t]he
anticipated income from voucher holders will not support financing of such development while
[voucher] rents are being calculated on a metropolitan-wide basis, rather than with a small-area

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calculation.” OCA Decl. ¶ 8. OCA also has diverted scarce resources away from previously
planned projects to address HUD’s delay of the Rule. Id. ¶¶ 10–12. “With the suspension in
effect,” OCA explains, “OCA will need to spend significant resources on research, outreach,
public education, and advocacy to implement small area market rents ‘voluntarily’ on a PHA-byPHA basis across the Hartford metropolitan area, a multi-year effort that may ultimately prove
futile.” Id. ¶ 10. OCA has already changed its activities as a result of the Rule’s delay. For
example, OCA “planned to produce a Small Area Fair Market Rent web portal which would
have included (a) an analysis of the difference between SAFMRs and FMRs across the state, (b)
an explanation of SAFMRs, (c) data on the current location of voucher holders, and (d) the
results of a time consuming rent study that highlighted the additional units that would become
available under the new rent calculation formula.” Id. ¶ 11. In light of the Rule’s delay, OCA is
“now taking steps to revise the content of this portal and to instead produce an advocacy piece,
based on this data, explaining why the program freeze is detrimental.” Id. Finally, the Rule’s
delay has required OCA “to engage in further meetings and other communications with
stakeholders to ensure that the impact of this policy suspension is fully understood” and to
“spen[d] time conducting outreach to [OCA’s] coalition members to explain the freeze and its
consequences for voucher holders.” Id. ¶ 12.
The defendants assert that plaintiffs must show that OCA’s claimed monetary loss
“threatens the very existence of the movant’s business” to support OCA’s claims of irreparable
economic injury. Defs.’ Opp’n at 36 (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.
Cir. 1985)). The defendants misread the authority on which they rely. Wisconsin Gas Co. held
that “[r]ecoverable monetary loss may constitute irreparable harm only where the loss threatens
the very existence of the movant’s business.” 758 F.2d at 674. OCA’s monetary losses,

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however, are not recoverable, as the APA provides no damages remedy. See 5 U.S.C. § 702
(authorizing actions “seeking relief other than money damages”). Wisconsin Gas Go. thus is
inapposite; to show irreparable harm, OCA need only show that HUD’s delay of the Rule will
“perceptibly impair[]” OCA’s programs and “directly conflict with the organization’s mission.”
League of Women Voters, 838 F.3d at 8. For the reasons given, OCA has made such a showing.
C.

Balance of Equities and Public Interest

The third and fourth factors that courts consider in determining whether a preliminary
injunction is warranted are “a balance of the equities in [the plaintiffs’] favor, and accord with
the public interest.” Id. at 6 (quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d at 505). The
harm the plaintiffs would suffer from the Rule’s delay is clear, for the reasons explained above.
As HUD’s counsel acknowledged at oral argument, moreover, the Rule’s delay would leave in
place the 50th Percentile Rule, which the defendants recognize has failed to serve Section 8’s
goals. Hr’g Tr. at 17. The harms the defendants assert that voucher holders would suffer should
HUD implement the Rule on schedule, in contrast, are wholly speculative because they presume
the Interim Report’s findings apply to Rule-affected areas, which, also for reasons explained
earlier, the defendants have failed to show. The defendants, moreover, “cannot suffer harm from
an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127,
1145 (9th Cir. 2013); accord R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) (same).
The balance of equities thus weighs in the plaintiffs’ favor. A preliminary injunction’s issuance
also would serve the public interest. “There is generally no public interest in the perpetuation of
unlawful agency action.” League of Women Voters, 838 F.3d at 12. “To the contrary, there is a
substantial public interest in having governmental agencies abide by the federal laws”—such as
the APA, as well as regulations such as § 888.113(c)(4)—“that govern their existence and

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operations.” Id. (internal quotation marks omitted); accord Gulf Coast Mar. Supply, Inc. v.
United States, 218 F. Supp. 3d 92, 101 (D.D.C. 2016), aff’d, 867 F.3d 123 (D.C. Cir. 2017)
(“The public interest is served both by ensuring that government agencies conform to the
requirements of the APA.”). As such, the plaintiffs have met their burdens to show that the
balance of equities and consideration of the public interest support the injunctive relief they seek.
IV.

CONCLUSION
For the foregoing reasons, the plaintiffs’ motion for preliminary injunction is granted.

An appropriate Order accompanies this Memorandum Opinion.
Date: December 23, 2017

__________________________
BERYL A. HOWELL
Chief Judge

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