On Saturday, December 23, 2017, a federal judge ordered the Trump Administration immediately to reinstate an Obama Administration regulation providing thousands of low-income families who use Housing Choice Vouchers the opportunity to move from impoverished, racially segregated neighborhoods to areas that provide better schools, better jobs, and greater access to community amenities.
Judge Beryl Howell of the U.S. District Court for the District of Columbia granted a preliminary injunction against the Department of Housing and Urban Development, after finding that it lacked authority to suspend the Small Area Fair Market Rent Rule and had no good reason for the suspension. The Firm and its co-counsel sued HUD and Secretary Carson in October on behalf of two individual plaintiffs who want to use the Rule's benefits to move from their current homes in Chicago and Hartford, and the Open Communities Alliance, a Connecticut-based civil rights organization.
"This case is about the rule of law," Judge Howell's opinion states in its opening paragraph. The 47-page opinion goes on to meticulously demonstrate how HUD misapplied its own regulation to claim authority it does not possess and drew unwarranted conclusions from evidence that does not support HUD's action.
"Judge Howell clearly recognized that HUD's suspension of this vital rule was unlawful, and that it harmed families who want and deserve real housing choice now," said Sasha Samberg-Champion of Relman, Dane & Colfax, who argued the preliminary injunction motion on December 19. "By setting aside HUD's action as arbitrary and capricious, and granting our request for preliminary injunction, she is providing relief for tens of thousands of households who are the Rule's intended beneficiaries."
The Small Area Fair Market Rent Rule was adopted to expand the purchasing power for Voucher households by increasing so-called "fair market rent" standards in high-cost areas. Historically, FMRs have been calculated crudely, based on average market rents across broad metropolitan areas. This approach results in subsidy levels that exclude Voucher families from high opportunity areas and concentrate them in areas characterized by concentrated poverty and racial segregation.
After years of study, the Obama Administration promulgated the Rule in 2016, requiring the use of FMRs calculated by zip code, to more accurately measure housing costs in 24 metropolitan areas that collectively serve about 10 percent of the country's voucher holders. Those areas met stringent criteria to ensure that small area FMRs would do the most good and would not have adverse side effects.
In flagrant violation of the Administrative Procedure Act, the Trump Administration abruptly announced-in letters to the affected public housing agencies in August 2017-that it would not require the PHAs to use small area FMRs for at least two years, effectively suspending the Rule. It provided no prior notice or opportunity for comment. While the agency claimed to be acting on new evidence that the Rule wouldn't work, Judge Howell found that the evidence it pointed to did not support its conclusion.
Pursuant to the Rule, and Judge Howell's injunction, the affected public housing agencies, or PHAs, are required to begin using small area FMRs beginning on January 1, 2018.
The Firm represents Crystal Carter and Tiara Moore, single mothers living in Hartford, Connecticut and Chicago, Illinois, who, because of HUD's action, will be unable to move to safer neighborhoods where their children can attend good schools. Recent research studies have indicated that children moving to such neighborhoods have better health outcomes, improve academic achievement and have higher earnings as adults. Open Communities Alliance, a Hartford-based civil rights nonprofit whose mission is to provide greater opportunities and more choices for people living in low-opportunity areas in Connecticut, is also a plaintiff, alleging that its mission has been frustrated by suspension of the SAFMR Rule.
The litigation team at Relman, Dane & Colfax includes Sasha Samberg-Champion, Sara Pratt and Michael Allen. Co-counsel are NAACP Legal Defense and Educational Fund; Poverty & Race Research Action Council; Lawyers' Committee for Civil Rights Under Law; and Public Citizen Litigation Group.