THE INCLUSIVE COMMUNITIES PROJECT, INCORPORATED, Plaintiff-Appellant,
DEPARTMENT OF TREASURY; OFFICE OF THE COMPTROLLER OF THE CURRENCY, Defendants-Appellees.
from the United States District Court for the Northern
District of Texas
JOLLY, SMITH, and COSTA, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
Inclusive Communities Project, Inc. ("ICP"), sued
the Department of the Treasury ("Treasury") and the
Office of the Comptroller of the Currency ("OCC"),
asserting, inter alia, claims under Section 3608 of
the Fair Housing Act ("FHA") and the Fifth
Amendment. ICP averred that Treasury and OCC had failed to
regulate the federal Low-Income Housing Tax Credit
("LIHTC") program so as to promote fair housing.
The district court granted summary judgment to OCC and
Treasury on three grounds: (1) ICP lacked Article III
standing to sue OCC; (2) the court couldn't review
ICP's FHA claim because ICP hadn't challenged any
"final agency action" under the Administrative
Procedure Act ("APA"); and (3) ICP's Fifth
Amendment claim failed on the merits. Because ICP lacks
standing to sue either OCC or Treasury, we affirm in part,
vacate in part, and render a judgment of dismissal.
Reform Act of 1986 established the LIHTC program to encourage
the development of affordable rental housing. Pub. L. No.
99-514, § 252, 100 Stat 2085, 2189-208 (codified at 26
U.S.C. § 42). The statute provides tax subsidies for
"qualified low-income housing project[s]." 26
U.S.C. § 42(g)(1). The credits are first apportioned by
Congress, based on population, to state and local Housing
Credit Agencies ("HCAs"), id. §
42(h)(3), which then allocate the credits to sponsors of and
investors in affordable housing projects, see id.
HCA is required to enact a Qualified Allocation Plan
("QAP") establishing the body's priorities for
allocating the credits. Id. § 42(m)(1)(B). Each
QAP must set forth selection criteria, give preference to
projects benefiting people most in need of affordable
housing, and provide a procedure for the HCA to monitor
noncompliance by project sponsors. Id. HCAs also may
add criteria that "are appropriate to local
conditions." Id. § 42(m)(1)(B)(i). And
HCAs can deviate from those criteria if they offer a publicly
available written explanation. Id. §
Texas Department of Housing and Community Affairs
("TDHCA") has adopted a comprehensive scoring
rubric to determine which affordable housing projects will
receive LIHTCs. See generally 10 Tex. Admin. Code
§ 11.9. The scoring criteria reduce to four basic
categories: (1) "[c]riteria promoting development of
high quality housing," (2) "[c]riteria to serve and
support Texans most in need," (3) "[c]riteria
promoting community support and engagement," and (4)
"[c]riteria promoting the efficient use of limited
resources and applicant accountability." Id.
§ 11.9(b)-(e). Significant points are available in all
four categories, though the most are potentially available in
categories (2) and (3). Generally, applications with the
highest combined score are given the highest priority for
LIHTC assignment. See id. § 11.6(3).
federal level, the LIHTC program is administered by Treasury,
which has the authority to "prescribe such regulations
as may be necessary or appropriate." 26 U.S.C. §
42(n). Treasury also has the power to deny or recapture a
LIHTC claimed by a noncompliant investor. Id. §
42(j). It is likewise empowered to issue revenue rulings,
publish guidance, and issue notices regarding all provisions
of the Tax Code, including those governing LIHTCs. See
id. § 7805(a); 26 C.F.R. § 601.601(d). Only
HCAs, however, have the power to choose what projects will
receive LIHTCs. See 26 U.S.C. § 42(m).
independent bureau within Treasury, is the primary regulator
of "national banks" and "federal savings
associations." See 12 U.S.C. § 1 et
seq. National banks generally are forbidden from owning
or investing in real property, but they can make public
welfare investments ("PWI") in real estate,
including LIHTC projects, that don't expose them to
unlimited liability. As part of its role, OCC regulates and
approves national banks' PWIs. See 12 C.F.R. pt.
24. But OCC doesn't regulate all individuals or entities
that may invest in LIHTC projects, and it isn't involved
in selecting which projects receive LIHTCs.
"is a fair housing focused nonprofit organization
working with families seeking access to housing in
predominately nonminority areas of the Dallas metropolitan
area." ICP uses its resources to encourage the
development of LIHTC projects in non-minority-concentrated
areas, and it assists minority families who participate in
the Dallas Housing Authority's Section 8 Housing Choice
Voucher program. Because LIHTC units can't refuse to rent
to tenants using Section 8 vouchers,  it's important to ICP
where those projects are located within the Dallas
metropolitan area. ICP can help its clients obtain LIHTC
units more efficiently-i.e., using less time and
money-than other housing options.
been involved in litigation related to the LIHTC program for
more than a decade. In 2008, ICP brought a FHA claim against
TDHCA, alleging that TDHCA perpetuated racial segregation by
disproportionately allocating LIHTCs to projects in non-white
neighborhoods. That case, which included a bench trial
and review in this court and the Supreme Court, was
ultimately dismissed in 2016.
filed this suit in 2014, asserting, inter alia,
claims under Section 3608 of the FHA and the Fifth
Amendment. Specifically, ICP averred that Treasury
and OCC have abdicated their Section 3608 duties to regulate
the LIHTC program in a manner that furthers fair housing.
That abandonment, ICP suggested, was also intentional
discrimination in violation of the Fifth Amendment. ICP
sought injunctive relief, attorney's fees, and costs.
claim is based primarily on statistical data showing that
LIHTC housing in Dallas remains segregated by race. As of
2017, 96% of both LIHTC projects (161 of 168) and LIHTC units
(27, 823 of 28, 874) were located in minority-concentrated
areas (less than 50% white, non-Hispanic). Between 1995 and
2017, 96 of the 101 approved LIHTC projects in Dallas were
built in minority-concentrated areas. Moreover, 57 of them
were owned by national banks, and only one of these
bank-owned projects was sited in a minority-concentrated
area. Black voucher families often suffered the effects most
acutely, and ICP alleged that the current racial segregation
in Dallas public housing was equivalent to the conditions
under city-sanctioned de jure segregation but with
more than three times as many units.
and OCC moved for summary judgment on three grounds: ICP (1)
lacked Article III standing; (2) hadn't challenged any
final agency action under the APA, a jurisdictional
prerequisite for its Section 3608 claim; and (3) hadn't
made a prima facie case of intentional
discrimination under the Fifth Amendment. ICP moved for
partial summary judgment on standing and its Section 3608
district court granted Treasury and OCC's motion and
denied ICP's. The court ruled that ICP didn't have
standing to pursue its claims against OCC because it
hadn't established that its alleged injury was traceable
to OCC's conduct or that the relief it requested would
redress that injury. The court found that ICP had standing to
sue Treasury, but it still rejected the claims against it.
The court held that it lacked jurisdiction to consider the
Section 3608 claim because ICP hadn't identified any
final agency action under Section 702 of the APA. And as for
the Fifth Amendment claim, the court determined that ICP had
failed to adduce "any evidence that would support the
reasonable finding that Treasury failed to act, or delayed in
acting, because it intended to discriminate on the basis of
race." ICP appealed. We review summary judgments and
questions of standing de novo. See Nat'l
Rifle Ass'n of Am., Inc. v. McCraw, 719 F.3d 338,
343 (5th Cir. 2013).
law of Article III standing, which is built on
separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches." Town of Chester v. Laroe
Estates, Inc., 137 S.Ct. 1645, 1650 (2017). To have
standing, ICP "must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial deci-sion." "Th[at] triad of injury
in fact, causation, and redressability constitutes the core
of Article III's case-or-controversy requirement,"
and ICP, as "the party invoking federal jurisdiction[, ]
bears the burden of establishing its existence."
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 103-04 (1998) (footnote omitted).
element of Article III standing must be supported in the same
way as any other matter on which the plaintiff bears the
burden of proof, with the same evidentiary requirements of
that stage of litigation." Legacy Cmty. Health
Servs., Inc. v. Smith, 881 F.3d 358, 366 (5th Cir.),
as revised (Feb. 1, 2018), cert. denied,
139 S.Ct. 211 (2018) (quotation marks omitted). Thus, at
summary judgment, ICP can't rely on "mere
allegations"; it "must set forth by affidavit or
other evidence ...