Overview of HUD Administrative Complaint Process Re Housing Discrimination Claims

Individuals make housing discrimination claims under state and federal laws based on several different theories including overt discrimination and failure to make a reasonable accommodation when merited due to a disability. An “aggrieved person” (a person who claims to have been injured by a discriminatory housing practice, or believes that he or she will be injured by a discriminatory housing practice that is about to occur) may seek relief by either: (1) filing a civil action in a federal district court; or (2) filing a complaint with the Department of Housing and Urban Development (“HUD”), or a substantially equivalent state agency. This article provides an overview of the process that is followed when an aggrieved person pursues a discrimination action by filing a complaint with HUD.

Filing of Administrative Complaint.

Claims that are filed with HUD by an aggrieved person must be filed with the Secretary of HUD within 1 year after the discriminatory housing practice has occurred or terminated. The complaint can be filed at the HUD offices in Washington, D.C. or at any regional or field office of HUD.

HUD Referral to Substantially Equivalent State Agency.

A complaint that alleges a discriminatory housing practice that occurred within the jurisdiction of a substantially equivalent state or local agency that is certified by HUD, will be referred to that state or local agency for processing.  Notwithstanding the referral, HUD can reactivate the case if the state or local agency ceases to qualify for certification or fails to timely act.

Action on Complaint.

Within 10 days after the complaint if filed with HUD, notifications are sent to each aggrieved party and to the person(s) that have been accused of engaging in unlawful behavior. The responding parties then have 10 days after receiving the notification to file an answer to the complaint.

Investigation by HUD.

If HUD has elected to retain jurisdiction of the case, an investigation is commenced following the filing of the complaint. Unless it is impracticable to do so, the investigation must be completed within 100 days after the filing of the complaint, but failure to complete the investigation within the 100 days does not deprive HUD of continued jurisdiction over the matter.

Conciliation.

During the investigation phase, HUD will attempt to resolve the matter through the conciliation process. If the conciliation is successful and the matter is settled by the parties, the agreement is reduced to writing. The resolution may include an award of damages to the aggrieved party (including those caused by humiliation or embarrassment), and attorney fees. It is also possible for equitable relief to be granted (such as an order granting access to the housing sought or to alternative housing). The conciliation agreement can also include requirements for public posting of fair housing notices and education of directors and managers on fair housing principals and laws.  The conciliation agreement can be enforced by an action filed by HUD.

HUD’s Final Report / Dismissal or Charge.

Upon completion of its investigation, HUD prepares a final report of its findings which is then sent to all of the parties.  If the matter has not been settled by conciliation, the Secretary of HUD will evaluate the report and make a determination as to whether reasonable cause exists to believe that the respondent(s) has/have engaged in an unlawful discriminatory practice under the Fair Housing Amendments Act of 1988 (FHAA). If there is no reasonable cause to believe an unlawful act occurred, the case will be dismissed. If reasonable cause was found, upon concurrence of the General Counsel of HUD, a formal charge against the respondent(s) will be issued.

Administrative Hearing.

Within 3 business days following issuance of the charge, HUD’s General Counsel must obtain a hearing date and file / serve the charge on all parties. Within the 20 days following receipt of the charge, either party may request that the claims be asserted in a civil action. If such a request is made, the General Counsel  notifies the United States Attorney General to file a civil action. If a civil action is not requested by either party, or if the parties don’t respond, the case will be handled by an administrative law judge. Each party may appear in person, be represented by legal counsel,  examine / cross-examine witnesses,, introduce other evidence, and request the issuance of subpoenas. The Federal Rules of Evidence apply to the presentation of evidence at the hearing. Unless it is impracticable to do so, the administrative hearing must be held within 120 days following issuance of the charge at a place within the vicinity of where the alleged discriminatory housing practice occurred.

The Decision.

Following the hearing, the administrative law judge may award the aggrieved party damages (including damages for humiliation and embarrassment) and/or injunctive or other equitable relief. The administrative law judge may also assess a civil penalty against the respondent(s)  if he or she determines that it is in the public interest. The penalties that range from: a maximum of $16,000 if the respondent(s) has not  been adjudged of having committed any prior discriminatory housing practice; or a maximum of $42,500 if the respondent(s) has / have been adjudged to have committed one other discriminatory housing practice during the 5 year period preceding the date of the filing of the charge; and a maximum of $70,000 if the respondent(s) has / have been adjudged to have committed two or more other discriminatory housing practice during the 7 year period preceding the date of the filing of the charge.  The administrative law judge could also impose higher penalties if he or she finds that the respondent(s) has / have engaged in separate and distinct discriminatory housing practices. If the administrative law judge finds that the charging party failed to prove that the respondent(s) engaged in a discriminatory housing practice, the charges against the respondent(s) are dismissed.

Final Decision.

After the administrative law judge’s decision is filed, the Secretary of HUD may review it and, either affirm, modify, or set it aside in whole or in part. He or she can also remand the case back to the administrative law judge for further proceedings. The Secretary’s final decision must be served on the parties no later than 30 days after the issuance of the judge’s decision. If this time requirement is not met, the administrative law judge’s decision shall be the final decision.

Appeals.

Either party may appeal the final decision to the federal court of appeals within 30 days. If no appeal is filed, the decision becomes final within 45 days.

Attorney Fees and Costs.

After a decision becomes final, any prevailing party (with the exception of the Justice Department) may apply for an award of attorney fees and costs.  The administrative law judge will then issue an initial decision on the requested fees and costs and that decision will become final within 30 days unless it is reviewed by the Secretary of HUD.  If the respondent(s) is / are the prevailing party, HUD will be liable for reasonable attorney fees and costs in accordance with provisions in the Equal Access to Justice Act (5 USC §504).

Enforcement of Order.

After the decision becomes final, HUD may petition an appropriate court for enforcement of the decision and appropriate temporary relief. If HUD has not taken any such action after 60 days, any person entitled to relief may file the necessary action for enforcement.

References:

• 41 USC, Chapter 45 (Fair Housing), Subchapters I and II
•  24 CFR, Subtitle B,  Chapters I and II