Litigation

Amicus Brief in Seventh Circuit Court of Appeals case of Brumit v. Granite City.

NHLP staff: Kate Walz and Eric Dunn

Class action Complaint  against public housing agency for failing to notify public housing tenants paying minimum rent of the mandatory hardship exemption policy, or of the right to a grievance procedure at which to contest improper charges. NHLP is co-counsel with the Milton R. Abrahams Legal Clinic at Creighton University and the firm Car & Reinbrecht, P.C..

NHLP Staff: Kate Walz, Marcos Segura

Complaint challenging illegal rent increases, evictions, and neglected upkeep at Rural Development property in Española, New Mexico. Action seeks to hold owners accountable for deferred maintenance, illegally raising rents, and misleading tenants about their rights, as well as challenge USDA’s unlawful approval of a Section 515 loan prepayment. NHLP co-counsel with New Mexico Center on Law & Poverty.

NHLP Staff: Natalie Maxwell, Marcos Segura, Kate Walz

Complaint with HUD Office of Fair Housing Enforcement by consortium of community organizations challenging policy and practice of “aldermanic prerogative” in Chicago, which enables local alderman to effectively veto affordable housing projects in their wards and has resulted in discrimination against Black and Latinx households, families with children, and people with disabilities.

NHLP Staff: Kate Walz

Complaint to the U.S. Dept. fo Housing & Urban Development on behalf of community organizations in a suburb of Flint, Michigan, that challenges the approval and development of a new asphalt plant that will release toxic emissions from a site within 1600 feet of existing public housing and a low-income, primarily Black neighborhood. Alleges violations of Title VI, the Fair Housing Act, and the Housing & Community Development Act. Partners include Earth Justice and the Great Lakes Environmental Law Center.

Complaint

Fair Housing Act complaint to the U.S. Department of Housing & Urban Development, challenging a large multifamily landlord’s “no-evictions policy” by which prospective new tenants with any kind of eviction history are categorically excluded. The challenged no-evictions policy is a blanket ban that deters applicants and denies admission for any eviction record, irrespective of when it occurred, the reason for the filing, the outcome of the case, any mitigating circumstances, subsequent changes, or other relevant information. This policy disproportionately denies housing opportunities to Black renters, and Black women especially; the policy also reinforces and contributes to racial segregation in Oak Park, Illinois.

NHLP staff: Kate Walz, Eric Dunn

Complaint filed in U.S. District Court for the Northern District of Illinois, alleging fair housing discrimination by  a multifamily landlord through the use of a “no-evictions policy” that categorically excludes prospective new tenants with any kind of eviction history. The challenged no-evictions policy is a blanket ban that deters applicants and denies admission for any eviction record, irrespective of when it occurred, the reason for the filing, the outcome of the case, any mitigating circumstances, subsequent changes, or other relevant information. This policy disproportionately denies housing opportunities to Black renters in Chicago, and Black women especially.

NHLP staff: Kate Walz, Eric Dunn

Amicus brief filed with the U.S. Sixth Circuit Court of Appeals in Pickett v. Cleveland, urging it to protect Black Ohioans from discrimination and foreclosure and to recognize their protections under the Fair Housing Act. The suit was filed by the Legal Defense Fund in support of Black homeowners who are challenging the City of Cleveland’s discriminatory policy of imposing water liens which greatly increases their risk of foreclosure. The National Housing Law Project, the National Association for the Advancement of Colored People, Southern Poverty Law Center, the Lawyers’ Committee for Civil Rights Under Law, Center for Rural Enterprise and Environmental Justice, and National Fair Housing Alliance filed the brief.

The amicus brief argues that Cleveland’s policy of putting water liens on properties with overdue water bills put Black homeowners at even greater risk of foreclosure and constitutes race discrimination, which is redressable under the Fair Housing Act. The brief also argues that American cities have long been segregated by race, which in turn results in disparately unfair and harmful local policies that deprive Black people access to affordable and clean water and proper sewer services. 

Amicus Brief  argues that having an inoperable vehicle in the parking lot of a public housing project does not threaten a sufficiently material impact on the project environment to establish good cause for the tenant’s eviction, particularly where the PHA has other remedies such as towing the vehicle. Explains that eviction from public housing should be the last option pursued after exhausting all alternatives, given the goals of the program and the heightened risk of homelessness that tenants evicted from public housing face.

Wisconsin Court of Appeals decision reversing trial court and holding that tenant’s violation of the parking policy was neither a “serious: or “repeated” violation of a material term of the lease. While the court did not determine whether the parking policy was material, the facts showed the violation was not serious and was a single continuing violation rather than “repeated” violations.

NHLP staff: Marie Claire Tran-Leung, Sarah Brandon, Eric Dunn

Summary:

Action originally filed in U.S. District Court for the Central District of California.  Challenged Los Ángeles Ordinance No. 186585, which imposes a local moratorium on residential evictions motivated either by financial causes, minor lease violations, or without fault of the tenant in City of L.A.  The challengers failed to secure a preliminary injunction and appealed to Ninth Circuit, which affirmed.  Challengers have petitioned for certiorari to U.S. Supreme Court  but certiorari was denied at 142 S.Ct. 1699 (Mem), 212 L.Ed.2d 595 (Apr. 18, 2022). 

NHLP staff: Deborah Thrope, Eric Dunn

Documents:

• Ninth Circuit Court of Appeals opinion
• District Court opinion
• NHLP Amicus Brief in Ninth Circuit
• NHLP Amicus Brief in District Court
• Notice of Petition for Certiorari
• Order Denying Certiorari

Summary:

Action originally filed in Circuit Court for Miami-Dade County in Florida, concerning the right of a nonprofit community development corporation to exercise its federal statutory right of first refusal by which to retain complete long-term ownership and control of a low-income housing tax credit property.   Trial court ruled in favor of the community development corporation, and investors who sought to deny the CDC’s attempt to purchase the property appealed.  Florida Court of Appeals summarily affirmed.

NHLP staff: Marcos Segura

Documents:

• Trial Court opinion
• NHLP amicus brief
• Florida Court of Appeals order affirming trial court

Summary:

Action filed in U.S. District Court for Western District of Washington, challenging the prepayment of two USDA Section 515 properties in Blaine, Washington.  The buildings included fifty-four units of senior/disabled housing, all with rental assistance—and the tenants were mostly very-low-income residents and nearly all elderly single women.  USDA approved the prepayment subject to use restrictions, but failed to notify tenants or enforce the restrictions them—including by allowing owner to raise rents and utility charges, decline lease renewals, and impose onerous new lease terms.  The tenants formed two tenant associations and sought representation from Northwest Justice Project to challenge the new leases and rent increases.  NJP partnered with NHLP (Gideon Anders) to file suit for a temporary restraining order and preliminary injunction to enforce the use restrictions, enjoin the new leases and increased rents, and require USDA to comply with federal law in notifying tenants about future prepayments.

After entry of an agreed TRO, the parties reached a settlement that prevented rent increases and resulted in the return of both properties to the Section 515 program through 2032 (when the original loans had been scheduled to mature).  This preserved the affordable housing and rental assistance.  However, the court then found the remaining claims seeking to improve USDA practices nationwide to be moot.

Documents:

• Order of dismissal (finding remaining claims against USDA moot)
• Article by Kelly Owen and Scott Crain of Northwest Justice Project, “Rural Housing in the Crosshairs: How USDA Affordable Housing Is Targeted for Market Rate Conversion and What Advocates Can Do to Preserve It,” 30 J. of Affordable Hsg. 78 (2021) (discussing BPTA v. Bouma case extensively)

Supreme Judicial Court of Massachusetts Cause No. SJC-12623 Issues: (1) whether the Violence Against Women Act can be a defense to eviction from public housing for nonpayment of rent when a survivor’s failure to pay rent and arrearages was the direct result of a physically, emotionally, and financially abusive relationship; and (2) whether a public housing authority can lawfully require a survivor to obtain a restraining order against her abuser to avoid eviction from public housing. Partners: ACLU Women’s Rights Project, ACLU of Massachusetts, Sargent Shriver National Center on Poverty Law NHLP Role: Amicus Curiae in support of Y.A. Documents: Brief of amici curiae

Amicus Brief (and attachment) filed in the Northern District of Atlanta in opposition to the plaintiffs’ motion for preliminary injunction in the first of numerous civil actions challenging the CDC’s temporary halt on evictions. Advocates from Legal Services of Northern Virginia, Atlanta Legal Aid, and NHLP collaborated on the brief.  The court subsequently denied the preliminary injunction, Brown v. Azar, 497 F. Supp. 3d 1270 (N.D. Ga. 2020), aff’d sub nom. Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4 F.4th 1220 (11th Cir. 2021), vacated, 20 F.4th 1385 (11th Cir. 2021), and appeal dismissed sub nom. Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 20 F.4th 1385 (11th Cir. 2021).

Amicus Brief filed April 28, 2021, by Southeast Louisiana Legal Services, Acadiana Legal Services, Southern Poverty Law Center, and National Housing Law Project in support of affirming trial court decision in Chambless Enterprises, LLC v. Redfield, 508 F.Supp.3d 101 (W.D.La. 2020), which had denied a preliminary injunction prohibiting enforcement of the CDC halt order.

Complaint challenging municipal housing authority’s planned disposition of 23 acres of high value real estate, which would have been an appropriate site for the development of affordable housing, to a private business owner instead.

Amicus Brief filed in U.S. Supreme Court, on behalf of local, state, and national nonprofit organizations devoted to ending gender-based violence, in case concerning whether the Eighth Amendment prohibition on cruel & unusual punishment prohibits localities from adopting “camping” ordinances that effectively criminalize sleeping or lying in public places for persons with no other shelter. NHLP drafted the brief wth the Sexual Violence Law Center of Seattle.

NHLP Staff: Kate Walz

Amicus Brief in Fourth Circuit Court of Appeals case of de Reyes v. Waples Mobile Home Park challenging a mobile home park’s policy of requiring all residents to present proof of U.S. citizenship or immigration status, contrary to the Fair Housing Act. NHLP’s brief shows how Congress could not have intended for the anti-harboring act (8 U.S.C. sec 1324) to require landlords to inquire into the citizenship or immigration status of every household member because Congress has authorized a number of federal housing and benefits programs that impose no immigration eligibility requirements and, in some cases, specifically allow mixed-status families (i.e., families with both U.S. citizens or eligible immigrants and household members without eligible status) to live together.

Fourth Circuit opinion reversing district court ruling (that fear of prosecution under anti-harboring statute justified housing discrimination against undocumented immigrants). Outlines burden shifting framework for disparate impact cases and makes clear defendant cannot “manufacture business necessity based on speculative, or even imagined, liability.” Finds risk of prosecution or liability under anti-harboring statute was not  plausible, as statute “simply does not apply to landlords merely leasing to undocumented immigrants, and Waples’s risk of prosecution is too attenuated to cross the threshold of a plausible concern.” Also recognizes that interpreting anti-harboring statute to prohibit merely leasing to undocumented immigrants would increase homelessness in the U.S.  

NHLP staff: Kate Walz, Natalie Maxwell, Eric Dunn

Amicus brief filed in Ninth Circuit seeking to affirm trial court’s ruling that the State of Washington’s eviction moratorium during Covid-19 was not a taking. Brief explains how temporarily disallowing the eviction of tenants that landlords voluntarily admitted to rental properties is neither a physical taking nor an excessively onerous regulation under the regulatory takings test set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Brief drafted by Democracy Forward Foundation and filed on behalf of NHLP, Appleseed Foundation, Alliance for Justice, International Municipal Lawyers’ Association, Lawyers’ Committee for Civil Rights under Law, and Western Center on Law & Poverty.

Minnesota Court of Appeals Case No. A18-1271 Issue: constitutionality of Minneapolis Ordinance No. 2017-078, which prohibits discrimination housing based on the use of housing vouchers or other “public assistance” benefits to pay rent. Partners: Poverty & Race Research Action Council, Housing Justice Center NHLP Role: Amicus Curiae in support of City of Minneapolis Documents: Brief of Amicus Curiae

Amicus Brief filed in the Western District of Missouri, in support of preliminary injunctive relief in KC Tenants v. Byrn, an action which challenges a local administrative order authorizing landlords to file eviction lawsuits and prosecute them to judgment in Jackson County, MO, as well as secure evidentiary hearings in which to contest the veracity of tenant “covered person” declarations given to invoke protection of the CDC halt order.  Advocates from Legal Aid of Western Missouri, Legal Services of Eastern Missouri, and NHLP collaborated on the brief. Injunction was regrettably denied. KC Tenants v. Byrn, 504 F. Supp. 3d 1026, 1027 (W.D. Mo. 2020), vacated, No. 4:20-CV-00784-HFS, 2022 WL 3656453 (W.D. Mo. Aug. 24, 2022).

Amicus brief in U.S. Supreme Court in support of the petition for certiorari, seeking review of an 8th Circuit decision holding that a mobile home park cannot have any duty to consider accepting a housing choice voucher from a resident as a reasonable accommodation for a disability. Eighth Circuit decision was based on rationale that such an accommodation ameliorates only the “downstream economic effects” of the disability and does not “directly ameliorate the disability” as other accommodations supposedly do. NHLP’s amicus brief explains that treating so-called “economic accommodations” differently is arbitrary, unsupported by the text of the statute, and contrary to well-established caselaw such that the 8th Circuit’s reasoning will call many kinds of routine reasonable accommodations into question.

NHLP staff: Lila Gitesatani, KC Shah, Eric Dunn, Kate Walz

U.S. District Court – Northern District of Ohio Cause No. 3:19-cv-00248 Filing Date: February 1, 2019 Claims: Declaratory Judgment Partners: Advocates for Basic Legal Equality, Inc. NHLP Role: Co-Counsel for Plaintiffs Documents:

• Complaint

Amicus Brief filed in Matorin v. Executive Office of Housing & Economic Development, a lawsuit that challenged that state’s now expired moratorium on “non-essential” eviction proceedings. Principally authored by NHLP with assistance from Joseph Sherman of MetroWest Legal Services in Framingham, Massachusetts. Order denying preliminary injunction. Opinion by Judge Paul Smith denying the landlords’ preliminary injunction motion. Ruling finds landlords unlikely to succeed on any of their claims, that they presented to basis for finding they would suffer irreparable harm in the absence of relief, and that the public interest weighed heavily against injunctive relief. Note: considered only state law theories as landlords had voluntarily dismissed their federal claims before the ruling. Those federal claims were re–filed in a U.S. District Court action, which also rejected the landlords’ claims. See Baptiste v. Kennealy, 490 F. Supp. 3d 353 (D. Mass. 2020).

Amicus brief in challenge to Washington statute RCW 59.18.375, which requires tenants in nonpayment eviction cases either to pay the amount of disputed rent into court or file a sworn statement denying the rent is owed. Failure to comply with the statutory requirement results in the issuance of a writ of restitution to remove the tenant without a hearing being held. Brief explains that numerous defenses can exist by which tenants may prevail in eviction cases, even if they cannot deny owning the unpaid rent for which the case is filed.

Order reversing trial court’s dismissal of the action without reaching the merits.

Coming Soon

U.S. District Court – Western District of Washington Cause No. 2:17-cv-01115-RSM Issue: whether the “special right of first refusal” the Low-Income Housing Tax Credit statute (at 26 U.S.C. § 42(i)(7)) gives non-profit housing providers to them a right to purchase those properties and thus maintain the long-term affordability of LIHTC properties. Partners: LeadingAge NHLP Role: Amicus Curiae in support of Senior Housing Assistance Group Documents: Proposed brief of amici curiae

Amicus Brief filed in the Northern District of Ohio in opposition to the plaintiffs’ motion for preliminary injunction in Skyworks Ltd. v. CDC one of numerous U.S. District Court lawsuits challenging the CDC temporary halt on evictions. Advocates from Community Legal Aid Services, Inc., and NHLP collaborated on the brief. Court ruled that CDC was without power to impose the eviction halt but denied injunctive relief. Skyworks, Ltd. v. Centers for Disease Control & Prevention, 524 F. Supp. 3d 745, 748 (N.D. Ohio), order clarified, 542 F. Supp. 3d 719 (N.D. Ohio 2021), appeal dismissed, No. 21-3563, 2021 WL 4305879 (6th Cir. Sept. 21, 2021), and appeal dismissed, No. 21-3443, 2021 WL 4352384 (6th Cir. Sept. 3, 2021).

Amicus brief in Ninth Circuit Court of Appeals in support of petition appealing the denial of class certification in a case challenging a senior housing provider’s failure to remove access barriers in multiple facilities. The District Court denied certification because the facilities did not share a common blueprint or design characteristics, and did not arise from centralized decisionmaking. Amicus brief argues that the the violations did result from a “policy and practice of disregarding the existence of access barriers and of failing to remove them,” however, which provided sufficient commonality for class certification. Amicus brief details various types of settings, including subsidized housing, in which the ability to secure class certification for injuries resulting from a common policy applied across multiple facilities is essential to enforce basic rights and protections.

Amicus Brief filed by National Housing Law Project in support of reversing trial court decision in Terkel v. CDC, 521 F.Supp.3d 662 (2021), which issued a declaratory judgment finding the CDC eviction halt impermissible under the Commerce Clause. Appeal dismissed voluntarily for mootness after U.S. Supreme Court decision in Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 210 L. Ed. 2d 856, 141 S. Ct. 2485 (2021). Terkel v. Centers for Disease Control & Prevention, 15 F.4th 683, 684 (5th Cir. 2021).

Amicus Brief filed in the Western District of Tennessee in opposition to the plaintiffs’ motion for preliminary injunction in Tiger Lilly LLC v. HUD, one of multiple U.S. District Court lawsuits challenging the CDC temporary halt on evictions.  Filed with the assistance of Butch, Porter & Johnson, PLLC. Preliminary injunction denied by Tiger Lily LLC v. United States Dep’t of Hous. & Urb. Dev., 499 F. Supp. 3d 538, 542 (W.D. Tenn. 2020). (Note, however, that the same court later ruled the CDC eviction halt unconstitutional under the Administrative Procedures Act and permanently enjoined enforcement in the Western District of Tennessee. See Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., 525 F. Supp. 3d 850 (W.D. Tenn.), aff’d, 5 F.4th 666 (6th Cir. 2021).)

U.S. Court of Appeals for the Eleventh Circuit Cause No. 17-11500 Issue: In the Housing Choice Voucher program, HUD rules require a housing authority to prove the grounds for terminating a family’s assistance by a preponderance of evidence in a so-called “informal hearing” at the housing authority before assistance may be terminated.  The issue in this case, being heard en banc after a panel opinion in the tenant’s favor, is whether a family has a right to challenge a voucher termination in court if the PHA hearing officer upholds the termination even though the housing authority fails to prove that violation by the preponderance of evidence. NHLP Role: Amicus Curiae in support of Appellant Yarbrough Documents:

• Brief of amicus curiae National Housing Law Project
• Brief of amicus curiae Sargent Shriver National Center on Poverty Law
• Brief of Southeast Amici
• Brief of Appellant Sheena Yarbrough
• Court’s Memorandum to Counsel or Parties

U.S. District Court – Western District of Washington Cause No. 2:18-cv-736-JCC Issue: constitutionality of Seattle’s “Fair Chance Ordinance,” which prohibits the denial of rental housing based on most criminal records. Partners: Sargent Shriver National Center on Poverty Law NHLP Role: Amicus Curiae in support of City of Seattle Documents: Brief of Amicus Curiae

Ninth Circuit brief