Inclusive Communities Project v. Department of Tre

Case: 19-10377 Document: 00515251573 Page: 1 Date Filed: 12/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10377 December 30, 2019
Lyle W. Cayce
Clerk
THE INCLUSIVE COMMUNITIES PROJECT, INCORPORATED,
Plaintiff–Appellant,
versus
DEPARTMENT OF TREASURY;
OFFICE OF THE COMPTROLLER OF THE CURRENCY,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, SMITH, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The 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
Case: 19-10377 Document: 00515251573 Page: 2 Date Filed: 12/30/2019
No. 19-10377
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.
I.
The Tax Reform Act of 1986 established the LIHTC program to encour-
age 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.
§ 42(m).
Each HCA is required to enact a Qualified Allocation Plan (“QAP”) estab-
lishing 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 explana-
tion. Id. § 42(m)(1)(A)(iv).
The 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
2
Case: 19-10377 Document: 00515251573 Page: 3 Date Filed: 12/30/2019
No. 19-10377
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 availa-
ble in all four categories, though the most are potentially available in categor-
ies (2) and (3). 1 Generally, applications with the highest combined score are
given the highest priority for LIHTC assignment. See id. § 11.6(3).
At the 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 recap-
ture a LIHTC claimed by a noncompliant investor. Id. § 42(j). It is likewise
empowered to issue revenue rulings, publish guidance, and issue notices re-
garding 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).
OCC, an 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 prop-
erty, but they can make public welfare investments (“PWI”) in real estate,
including LIHTC projects, that don’t expose them to unlimited liability. 2 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
1 Applications also may receive a 30% boost in “Eligible Basis”—the tax basis against
which the credit is applied—if the proposed project meets certain criteria. See 10 TEX. ADMIN.
CODE § 11.4(c). And in addition to the scoring metrics, TDHCA also considers, among other
things, the concentration of the LIHTC projects it approves. See id. § 11.3.
2 12 U.S.C. § 24 (Eleventh); see also 64 Fed. Reg. 70986, 70988 (Dec. 20, 1999) (recog-
nizing that LIHTC projects may be PWIs).
3
Case: 19-10377 Document: 00515251573 Page: 4 Date Filed: 12/30/2019
No. 19-10377
invest in LIHTC projects, and it isn’t involved in selecting which projects
receive LIHTCs.
ICP “is a fair housing focused nonprofit organization working with fami-
lies 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, 3 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.
II.
ICP has been involved in litigation related to the LIHTC program for
more than a decade. In 2008, ICP brought a FHA claim against TDHCA, alleg-
ing that TDHCA perpetuated racial segregation by disproportionately allocat-
ing LIHTCs to projects in non-white neighborhoods. 4 That case, which in-
cluded a bench trial and review in this court and the Supreme Court, was
ultimately dismissed in 2016. 5
ICP filed this suit in 2014, asserting, inter alia, claims under Section
3 See 26 U.S.C. § 42(h)(6)(B) (requiring an “extended low-income housing commit-
ment,” which prohibits credit holders from refusing to rent to tenants using a Section 8 hous-
ing voucher); 26 C.F.R. § 1.42-5(c)(1)(xi) (requiring annual certification of compliance with
§ 42(h)(6)(B)(iv)).
4See Inclusive Cmtys. Project, Inc. v. Tex. Dep’t of Hous. & Cmty. Affairs, No. 3:08-CV-
0546-D, 2008 WL 5191935, at *1 (N.D. Tex. Dec. 11, 2008).
5See Inclusive Cmtys. Project, Inc. v. Tex. Dep’t of Hous. & Cmty. Affairs, No. 3:08-CV-
0546-D, 2016 WL 4494322, at *1 (N.D. Tex. Aug. 26, 2016).
4
Case: 19-10377 Document: 00515251573 Page: 5 Date Filed: 12/30/2019
No. 19-10377
3608 of the FHA and the Fifth Amendment. 6 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.
ICP’s 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 segre-
gation but with more than three times as many units.
Treasury 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 claim.
The 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
6 ICP also raised claims under Section 3604 of the FHA and 42 U.S.C. § 1982, but it
doesn’t press them on appeal.
5
Case: 19-10377 Document: 00515251573 Page: 6 Date Filed: 12/30/2019
No. 19-10377
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 judg-
ments 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).
III.
A.
“The 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.” 7 “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 exis-
tence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103–04 (1998) (foot-
note omitted).
7Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Accord Texas v. United States,
No. 19-10011, 2019 U.S. App. LEXIS 37567, at *25 (5th Cir. Dec. 18, 2019).
6
Case: 19-10377 Document: 00515251573 Page: 7 Date Filed: 12/30/2019
No. 19-10377
“[E]ach 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 specific facts” supporting standing. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992) (quotation marks omitted).
B.
Even though Article III requires a causal connection between the plain-
tiff’s injury and the defendant’s challenged conduct, it doesn’t require a show-
ing of proximate cause or that “the defendant’s actions are the very last step
in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 169 (1997). Causa-
tion, for example, isn’t precluded where the defendant’s actions produce a
“determinative or coercive effect upon the action of someone else,” resulting in
injury. Id. But ICP’s injuries can’t be “the result of the independent action of
some third party not before the court.” Id. at 167. Nor can they be “self-
inflicted.” Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 358
(5th Cir. 1999).
To satisfy redressability, a plaintiff must show that “it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000) (emphasis added). The relief sought needn’t com-
pletely cure the injury, however; it’s enough if the desired relief would lessen
it. See Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014). But “[r]elief that
does not remedy the injury suffered cannot bootstrap a plaintiff into federal
court.” Steel Co., 523 U.S. at 107.
7
Case: 19-10377 Document: 00515251573 Page: 8 Date Filed: 12/30/2019
No. 19-10377
Those standards make it difficult for a plaintiff to establish standing to
challenge a government action if he isn’t its direct object:
When . . . a plaintiff’s asserted injury arises from the government’s
allegedly unlawful regulation (or lack of regulation) of someone
else, . . . causation and redressability ordinarily hinge on the re-
sponse of the regulated (or regulable) third party to the govern-
ment action or inaction—and perhaps on the response of others as
well. The existence of one or more of the essential elements of
standing depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and le-
gitimate discretion the courts cannot presume either to control or
to predict, . . . and it becomes the burden of the plaintiff to adduce
facts showing that those choices have been or will be made in such
manner as to produce causation and permit redressability of
injury.
Defs. of Wildlife, 504 U.S. at 562 (quotation marks and citations omitted). We
confront that situation here: Neither Treasury nor OCC regulates ICP.
IV.
Nevertheless, ICP avers that it has standing to press its claims against
both Treasury and OCC. But the evidence on which it relies reveals that the
lines of causation between Treasury and OCC’s conduct and ICP’s injuries are
hazy at best. Consequently, ICP can’t establish causation or redressability
against either Treasury or OCC. 8
ICP’s alleges three injuries, all of which involve expending greater re-
sources to help place minority families in acceptable housing units located in
non-minority-concentrated areas. 9 First, ICP contends that the lack of LIHTC
units in non-minority-concentrated areas causes it to incur between $350 and
8 We therefore express no opinion on the other issues ICP raises on appeal.
9 Because the standing test is conjunctive, we assume, without deciding, that ICP has
satisfied Article III’s injury-in-fact requirement. See Williams v. Parker, 843 F.3d 617, 621
(5th Cir. 2016) (“If the party invoking federal jurisdiction fails to establish any one of injury
in fact, causation, or redressability, then federal courts cannot hear the suit.”).
8
Case: 19-10377 Document: 00515251573 Page: 9 Date Filed: 12/30/2019
No. 19-10377
$950 in additional operating costs to place each client. Second, ICP complains
that Treasury’s refusal to forbid TDHCA from applying “local veto selection
criteria” prevents LIHTC projects in non-minority-concentrated areas from
ever being built. That, in turn, renders ICP’s payments to developers to en-
courage building LIHTC projects in those areas “sunk costs.” And third, ICP
maintains that Treasury’s failure to enforce a certain Tax Code provision,
which requires LIHTC projects sited in “qualified census tracts” 10 to be part of
a “concerted community revitalization plan,” causes ICP to incur additional
costs.
A.
All three injuries ICP alleges apply to Treasury, and all boil down to
essentially the same theory of causation. ICP contends that its injuries are
traceable to Treasury’s actions because Treasury has plenary authority over
the LIHTC program, including the power both to issue regulations and to
recapture LIHTCs from investors who violate the FHA. To bolster its position,
ICP attempts to show that Treasury regulations can coerce parties it doesn’t
directly regulate by analogizing to Treasury’s regulation of tax credits for pri-
vate schools that discriminate based on race.
1.
ICP fails to appreciate Congress’s allocation of administrative responsi-
bilities for the LIHTC program. Although Congress gave Treasury the power
to regulate the program, see 26 U.S.C. § 42(n), it gave state and local HCAs the
power to allocate the credits to specific affordable housing projects, see
“The term ‘qualified census tract’ means any census tract which . . . for the most
10
recent year for which census data are available on household income in such tract, either in
which 50 percent or more of the households have an income which is less than 60 percent of
the area median gross income for such year or which has a poverty rate of at least 25 percent.”
26 U.S.C. § 42(d)(5)(B)(ii)(I).
9
Case: 19-10377 Document: 00515251573 Page: 10 Date Filed: 12/30/2019
No. 19-10377
id. § 42(h). Consequently, ICP’s theory of causation necessarily invokes two
levels of coercion: (1) Treasury’s coercion of TDHCA and (2) TDHCA’s coercion
of project sponsors. ICP therefore must establish a causal chain with at least
two links—one that connects the actions ICP proposes that Treasury take to
some corresponding change in how TDHCA allocates LIHTCs, and another
connecting that change to the financial injuries that ICP suffers, which are
caused by the location of LIHTC units. ICP establishes neither.
Even if Treasury regulated TDHCA in the manner that ICP wants (e.g.,
by issuing a regulation requiring TDHCA to allocate credits to affirmatively
further fair housing, or something like that 11), it isn’t at all clear how TDHCA
would respond. That’s unsurprising, because TDHCA’s QAP is a comprehen-
sive rubric with many factors. Certainly, community support can bolster an
application. 12 But substantial points are available in other criteria that Treas-
ury’s alleged failure to regulate doesn’t affect. See 10 TEX. ADMIN. CODE
§ 11.9(b)–(c), (e). And it’s unclear that TDHCA, which has broad latitude to
allocate LIHTCs in any manner “appropriate to local conditions,” 13 would
maintain the same scoring formula even if Treasury started regulating in the
manner that ICP wishes.
Moreover, even assuming that TDHCA would alter its scoring formula
to account for ICP’s concerns (e.g., by eliminating the “local veto” criteria)—a
speculative inference in itself—it’s entirely speculative that such would result
in LIHTCs’ being allocated to projects in locations that ICP favors. TDHCA
doesn’t commission projects or determine where they should be sited. Private
11 At oral argument, counsel for ICP was unable to articulate what regulation ICP
thinks Treasury should enact. So, we must engage in at least some guesswork.
12 See 10 TEX. ADMIN. CODE § 11.9(d). A lack of community support would, admittedly,
put a project at a disadvantage. But it wouldn’t operate as a true “veto.”
13 26 U.S.C. § 42(m)(1)(B)(i).
10
Case: 19-10377 Document: 00515251573 Page: 11 Date Filed: 12/30/2019
No. 19-10377
sponsors do. And many of the preference criteria—in both the LIHTC statute
and TDHCA’s QAP 14—prioritize building affordable housing projects in low-
income areas 15 where the need is greatest, where units can presumably be pro-
vided at lower costs, and where rents therefore can remain the lowest for the
longest period. That makes sense: “Federal law . . . favors the distribution of
[LIHTCs] for the development of housing units in low-income areas.” Tex. Dep’t
of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2513
(2015) (emphasis added).
Those issues with causation also crystalize ICP’s failure to establish
redressability. Because it’s unclear what effect any Treasury action—whether
ex ante regulation or ex post enforcement—would have on the conduct of project
sponsors or investors, it’s similarly uncertain that granting ICP the relief it
wants would remedy its injuries. ICP’s injuries are most directly caused by
the location of LIHTC housing units in the Dallas metro. But ICP hasn’t shown
how it is likely that the remedies it seeks will result in (1) LIHTC units being
sited in non-minority-concentrated areas, (2) LIHTC units becoming part of
concerted community revitalization plans, or (3) the building of specific LIHTC
projects for which it pays developers incentive payments.
2.
Bennett, on which ICP relies, is easily distinguished. In Bennett, 520
U.S. at 157, the challenged action was “a biological opinion issued by the Fish
and Wildlife Service [(“FWS”)] . . . concerning the operation of the Klamath
Irrigation Project by the Bureau of Reclamation, and the project’s impact on
14 See id. § 42(m)(1)(B); 10 TEX. ADMIN. CODE § 11.9(c), (e).
15ICP offered statistical evidence that black voucher families live in areas marked by
poverty rates greater than 30% and census tracts with the highest distress levels at higher
rates than do both Hispanic and white-non-Hispanic voucher families.
11
Case: 19-10377 Document: 00515251573 Page: 12 Date Filed: 12/30/2019
No. 19-10377
two varieties of endangered fish.” The challengers’ alleged injury was the
reduced irrigation water they would receive when the Bureau adopted the
Biological Opinion’s restrictions on water flow. See id. at 167. The Court found
that the alleged injury was sufficiently traceable to the challenged action, even
though the challengers’ water ultimately would be reduced by a later (and at
that time undefined) decision by the Bureau. See id. at 168–69.
But Bennett’s chain of causation was far less attenuated than the one
here. In Bennett, the critical coercion was FWS’s over the Bureau; once FWS
coerced the Bureau, that was “determinative” as to the plaintiffs—the quanti-
ties of irrigation water available to them would be reduced. Id. at 167–69. But
on account of a critical difference in procedural posture, there is no similar
determinative action here. 16 Instead, both project sponsors and TDHCA will
retain significant discretion in proposing projects and allocating LIHTCs.
The chain of causation here more closely resembles those in Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), and Allen
v. Wright, 468 U.S. 737 (1984), abrogated on other grounds by Lexmark Inter-
national, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). Like
this case, those cases involved chains of causation with at least two links. 17
16 Unlike this case, Bennett was reviewed on a motion to dismiss. See Bennett,
520 U.S. at 160–61. “At the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general
allegations embrace those specific facts that are necessary to support the claim.” Defs. of
Wildlife, 504 U.S. at 561 (cleaned up). Bennett’s complaint alleged that the Bureau of
Reclamation would “abide by the restrictions imposed by the Biological Opinion.” Bennett,
520 U.S. at 160. Because the Court was obligated to accept that allegation, that was enough
at the pleadings stage to make FWS’s opinion “determinative.” But because we review ICP’s
claim on summary judgment, we face no similar requirement here. See Defs. of Wildlife,
504 U.S. at 561.
17In Simon, 426 U.S. at 32–33, the plaintiffs’ alleged injuries were difficulties obtain-
ing medical care from hospitals that offered only certain services to the indigent. The chal-
lenged action was IRS Revenue Ruling 69-545, which allowed hospitals that provided only
12
Case: 19-10377 Document: 00515251573 Page: 13 Date Filed: 12/30/2019
No. 19-10377
And in each of those, the Court found that standing hadn’t been established. 18
B.
As for OCC, only ICP’s first injury—the increased resources ICP spends
on account of the lack of LIHTC units located in non-minority-concentrated
areas—is relevant. ICP must demonstrate a causal link between that injury
and OCC’s practice of approving national banks’ PWIs in LIHTC projects sited
in minority-concentrated areas.
To establish that link, ICP relies on OCC’s coercive power to approve
national banks’ PWIs in LIHTC projects. That approval, ICP avers, is neces-
sary for TDHCA to allocate a LIHTC to a national-bank-funded project, even
though TDHCA first tentatively approves the projects. ICP asserts that
emergency room services to the indigent to receive favorable federal tax treatment (i.e., non-
profit status). See id. at 30–32. The theory of causation was that, by protecting the hospitals’
nonprofit status, the revenue ruling incentivized hospitals to provide as few services to the
indigent as possible.
In Allen, 468 U.S. at 756, the plaintiffs’ purported injury was “their children’s dimin-
ished ability to receive an education in a racially integrated [public] school.” The challenged
activity was “the IRS’s grant of tax exemptions to some racially discriminatory [private]
schools.” Id. at 757. The plaintiffs’ theory of causation was that, because tax-exempt private
schools could discriminate, white children’s parents were moving them from public schools
under integration orders to racially discriminatory private schools.
18 In Simon, 426 U.S. at 42, the Court found causation lacking because “it [did] not
follow . . . that the denial of access to hospital services in fact results from petitioners’ new
Ruling, or that a court-ordered return by petitioners to their previous policy would result in
these respondents’ receiving the hospital services they desire.” Instead, “[i]t [was] purely
speculative whether the denials of service . . . fairly can be traced to petitioners’ ‘encourage-
ment’ or instead result from decisions made by the hospitals without regard to the tax impli-
cations.” Id. at 42–43.
In Allen, 468 U.S. at 759, the Court held that the plaintiffs lacked standing because
“[t]he links in the chain of causation between the challenged Government conduct and the
asserted injury [were] far too weak for the chain as a whole to sustain respondents’ standing.”
That was so because it was “uncertain how many racially discriminatory private schools
[were] in fact receiving tax exemptions” and “entirely speculative . . . whether withdrawal of
a tax exemption from any particular school would lead the school to change its policies.”
Id. at 758.
13
Case: 19-10377 Document: 00515251573 Page: 14 Date Filed: 12/30/2019
No. 19-10377
causation is established because OCC’s actions have successfully incentivized
national banks to invest significant sums in LIHTC projects.
But that theory misunderstands the nature of OCC’s involvement in the
LIHTC-allocation process. OCC doesn’t itself regulate TDHCA, which allo-
cates the LIHTCs, or project sponsors, who determine which projects to build
and where to put them. OCC only approves national banks’ proposed PWIs,
and it does that only after TDHCA has tentatively allocated an LIHTC (i.e.,
after the plans have already been made). OCC doesn’t have the power to direct
national banks to make investments in LIHTC projects or to regulate the
myriad other entities (e.g., individuals, partnerships, corporations, local and
regional banks, hedge funds, and so on) that may invest in LIHTC projects.
Consequently, the chain of causation as to OCC is even more attenuated
than as to Treasury, and, as the district court correctly observed, it’s “even
weaker than in Allen or Simon.” Just because national bank investments may
make up an important component of the LIHTC program doesn’t mean that
OCC’s practice of approving national banks’ investments in projects located in
minority-concentrated areas caused those projects to be sited there. The loca-
tion of LIHTC projects is driven primarily by sponsors’ decisions—both in
selecting locations and in finding investors, who may or may not be national
banks—and TDHCA’s allocation of credits. ICP’s evidence doesn’t show that
requiring OCC to reject approvals for national bank investments in LIHTC
projects located in minority-concentrated areas would affect those projects’
ultimate locations. Tellingly, ICP hasn’t identified a single case in which
standing was supported by so attenuated a chain of causation.
As is the case with Treasury, the maladies as to causation show why
redressability also is missing. Because OCC regulates only a subset of poten-
tial investors in LIHTC projects, it’s unclear what effect enjoining OCC from
14
Case: 19-10377 Document: 00515251573 Page: 15 Date Filed: 12/30/2019
No. 19-10377
approving investments by those entities would have. Forbidding national
banks from investing in LIHTC projects sited in minority-concentrated areas
could just as easily have no effect (e.g., because sponsors will seek investments
from other types of investors) or have the effect of preventing new LIHTC hous-
ing projects from being built at all. That isn’t enough to show that it’s likely—
as opposed to a merely possible—that granting ICP the relief it requests will
affect where future LIHTC projects are built.
* * * *
In sum, ICP doesn’t have standing to sue either Treasury or OCC. Con-
sequently, we AFFIRM the summary judgments as to ICP’s claims against
OCC and its Section 3608 claim against Treasury. Because the district court
reached the merits of ICP’s Fifth Amendment claim against Treasury, we
VACATE that summary judgment and RENDER a judgment of dismissal for
want of jurisdiction.
15