Claims and Bad Faith Law Blog

"JUST A WORD BEFORE I GO, TO WHOM IT MAY CONCERN ...."

Before 2020 came to an end, I left the following Comments on regulations.gov in response to yet another proposed new rule by the current regime.  I encourage you to do the same.

Or, leave your own Comments on or before the due date of January 4, 2021.

The identifying information for this proposed new rule is below in order to leave your Comments.   Here is a link to the proposed rule, followed by my Comments as an example that you can accept or reject when you write your own Comments:  Department of the Treasury, Office of the Comptroller of the Currency (OCC) Notice of Proposed Rulemaking, titled Fair Access to Financial Services.

Link: https://www.federalregister.gov/documents/2020/11/25/2020-26067/fair-access-to-financial-services

Comment:  ID: OCC-2020-0042

This is a new rule proposed by the Office of the Comptroller of the Currency that, as The Regulatory Review Weekly Summary on November 27, 2020 described it, "would prevent banks from refusing to lend to entire categories of lawful businesses, most notably ensuring that fossil fuel companies may not be denied financing solely on the basis of their business category [i.e., on the basis of their being fossil fuel companies]."

        The OCC justified its proposed new rule as ensuring fair access to bank services, capital, and credit on two grounds that are seemingly inconsistent: One, that the proposed rule "would codify more than a decade of OCC guidance" and, second, it would implement the far more recent language found in Title III of the Dodd-Frank Act in 2010.

        A representative of the Sierra Club put the proposed rule in context, reportedly saying that the Dodd-Frank Act was “not designed to force banks to invest in projects they deem to be overly risky and not good investments.”

        The OCC is not properly in the business of regulating business decisions of banks (or any other investors) about what to invest in, and what not to invest in. More to the point, the OCC does not have the authority to do so.

        This proposed rule is a failure as policy, and it is a failure because it is administrative agency overreach. For these reasons, it should be withdrawn and if not withdrawn, then it will be struck down judicially or legislatively after it is issued.

        Thank you for your consideration of these Comments.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

COMMENTS ON FEDERAL INFORMATION COLLECTION NOTICE DUE TOMORROW.

The organization that is still in control of the federal government proposes to collect information on "Federal and Non-Federal Financial Assistance Instruments" through the Forest Service.  The deadline for Comments on this proposal is tomorrow, Friday, November 13, 2020.  Now is the time to make your voice heard once again.

Feel free to use all or part of the Comments I left today, which are published below for your ease of reference.  Thank you for being a citizen.

Agency: FOREST SERVICE (FS)
Document Type: Notice
Title: Agency Information Collection Activities; Proposals, Submissions, and Approvals:: Federal and Non-Federal Financial Assistance Instruments
Document ID: FS_FRDOC_0001-3384

Document No.:  2020-20195.

Comment:

BECAUSE THE NOTICE IS UNSUPPORTED BY FACTS, IT IS IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT AND CANNOT BE IMPLEMENTED IN ACCORDANCE WITH LAW.

The Notice contains unsupported statements that the actions described in it are authorized by Congress because they are exempted by Congress from statutes that would otherwise govern these actions: "The Forest Service issues partnership agreements under specific authorities exempt from the Federal Grants and Cooperative Agreements Act (FGCAA). This collection is for a new form that will be used to enter into [certain] agreement[s.]"

   The Notice further contains this advisory: "In addition to Federal Financial Assistance (FFA), Congress created specific authorizations for acts outside the scope of the FGCAA. Appropriations language was developed to convey authority for the Forest Service to enter into relationships that are outside the scope of the FGCAA. The Forest Service implements these authorizations using instruments such as collection agreements, FGCAA exempted agreements, memorandums of understanding, and other agreements which mutually benefit participating parties. These instruments fall outside the scope of the Federal Acquisition Regulations (FAR) and often require financial plans and statements of work."

THE NOTICE FAILS TO SUFFICIENTLY IDENTIFY THE AUTHORITY OR LEGAL BASIS FOR IT. FOR THAT ADDITIONAL REASON, IT IS CONTRARY TO LAW AND CANNOT LAWFULLY BE IMPLEMENTED.

The exemptions are unidentified in this Notice except by reference generally to " the Federal Grants and Cooperative Agreements Act" and to "Federal Financial Assistance." "Authorization" to expend federal funds and enter into agreements is not specified. For these reasons, this Notice merits further attention.

    Background Information: This particular Notice is unusual in that it does not identify the specific statutory provisions on which it is based. The Federal Grants and Cooperative Agreements Act is codified at 31 USCA § 6301 et seq. The federal government has provided a description of its operation at https://www.grants.gov/learn-grants/grant-policies/federal-grant-cooperative-agreement-act-1977.html.

CONCLUSION

For all of the above reasons, whether taken separately or together, the proposed Notice is unauthorized and contrary to law. Therefore it cannot lawfully be implemented. Thank you for your consideration of these Comments.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall; permission is freely given to leave Comments in response to this proposed federal Notice on regulations.gov, that may contain material from this article.  All other rights reserved.

"If you do not help in this effort, who will?"

(Dennis J. Wall)

The Consumer Financial Protection Bureau has proposed a new rule that would contradict what Congress wrote in the Dodd-Frank Act.  They don't have the votes in Congress.  So, they are trying to make law in proposed rules like this one.  Comments are due by September 28, 2020.

Injustices like this must be opposed.  The success is in the opposition, not always in the result.  Feel free to use, paraphrase, or rephrase my own Comments below.  I was inspired by a National Consumer Law Statement on this proposed new rule, myself.  The important point is that proposed new rules like this one must be opposed.  If using my language is inspiration, too, for you to leave your own Comments in opposition, that is all to the good.

To rephrase the writer and philosopher Albert Camus who wrote about actions during a Plague among other things, this may be a country now in which people suffer.  We may not be able to do anything about that at the moment.  But we can lessen the number of suffering people.  If you do not help in this effort, who will?

The CFPB's Notice of Proposed Rulemaking is on www.regulations.gov where you can leave your Comments.  The docket number is CFPB-2020-0028.  The RIN is 3170-AA98.  To say again, Comments are due by September 28, 2020.

Thank you.

This rule proposed by the CFPB would immunize lenders from legal liability for making mortgage loans without regard to borrowers’ ability to repay if the borrower remains current for the first three years of the loan and the loan meets other requirements. This proposed new rule and new immunity for lenders is contrary to the Dodd-Frank Act.

In the Dodd-Frank Act, Congress required that before booking a loan so to speak, that lenders must make a good faith determination of a borrower’s ability to repay it. Further, Congress expressly allowed borrowers to defend foreclosure by asserting a defense that the lender ignored the borrower’s lack of ability to repay in making the loan.

There are many reasons a homeowner can make payments even for years and even when their mortgage is unaffordable. Examples drawn from real-world experience have been reported including "payments from roommates who are not on the mortgage, borrowing money, or even going without essentials such utilities or medical care." The Congressional choice to enact protections to homeowners to save their homes in the Ability-to-Repay rule already contemplated this situation and allowed for it. That is a policy choice. It is the policy choice made by Congress in the statutes that make up Dodd-Frank. No mere administrative agency including the CFPB has authority to repeal statutes, and no mere agency including the CFPB has the power to enact this proposed rule.

Congress wrote the Ability-to-Repay rule to prevent market excesses that contributed to the Great Recession. Many communities, especially low-income neighborhoods and communities of color, still have not recovered from the Great Recession. It is never a good idea to induce a Second Great Recession, but it is particularly not a good idea during a Pandemic.

Thank you.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

IF YOU DON'T LIKE A STATUTE: 1. GET VOTES, 2. CHANGE.

I have left the following Comments this morning on regulations.gov.  These Comments address the proposed neutering of asylum law in the United States through proposed rules and regulations.  The deadline for Comments is tomorrow.

Leave your own Comments.  Feel free to use any part of these Comments.  Leaving Comments is easy.  All you have to do to leave a Comment is to write one.  

Stay safe.  And help other people who depend on you to stay safe.

COMMENTS no 2 ON PROPOSED CHANGES TO RULES "PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL; CREDIBLE FEAR AND REASONABLE FEAR REVIEW."

Re:      Joint Proposed Rulemaking.

Department of Justice & Department of Homeland Security.

RIN 1125-AA94;

            EOIR Docket No. 18-0002.

These Comments address in particular your proposed additions and other changes of "streamlined proceedings" for processing applicants for admission to the United States.

To begin with, Congress has already established a procedure for processing applicants for admission to the United States.  You do not have the power or authority to change statutes by rules or regulations or by changes to rules and regulations.

Immigration officers are required by statute to screen applicants for admission to the United States.  See 8 USCA § 1225(b)(1)(A).

If the immigration officer determines that an applicant is inadmissible, she must refer the applicant to an asylum officer, by statute.  Congress specified two times in the statute when applicants deemed inadmissible are required to be referred to an asylum officer:

1. If the alien indicates an intention to apply for asylum in accordance with United States law, or
2. If the alien indicates a fear of persecution.

8 USCA § 1225(b)(1)(A).

Congress set out the statutory obligations of asylum officers in 8 USCA § 1225(b)(1)(B).  Subparagraph (B) of subsection 1225(b)(1) is titled, "Asylum Interviews[.]"

            Congress expressly defined a "credible fear of persecution":

(v)“Credible fear of persecution” defined

For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

8 USCA § 1225(b)(1)(B)(iv).

            The process that Congress established for determining a "credible fear of persecution" means a significant possibility, that the alien could establish eligibility for asylum under U.S. law.  The initial determination must, Congress wrote, include the taking of statements under oath from the alien and it must also include the asylum officer's determination of the alien's credibility in making those statements under oath.  Such other facts --not opinions, not speculation, not conjecture -- as are known to the asylum officer must also be taken into account in making the initial determination.

            This procedure has been established by Congress.  This procedure is so important that Congress established the procedure for processing applicants for admission to the U.S. in the legislation itself.   Your proposed rules changes do not reflect these safeguards established by Congress in the statute.  No rule you propose, and no rules change you advocate, can usurp the Constitutional prerogative of Congress in this area, nor in any other.

            Further, Congress knew about streamlined procedures when Congress wrote this statute.  Congress provided for streamlined procedures concerning Removal of Aliens Inadmissible on Security and Related Grounds.  See 8 USCA § 1225(c).  Congress chose not to enact a streamlined procedure in all cases whenever a person applies for admission to the United States.  Your proposed rules changes would do that.  You are attempting to rewrite a statute with rules and regulations.  This you may not lawfully do.

            It is a basic rule of statutory construction, an axiom of statutory construction if you will, that when any legislative body writes a statute, the fact that they clearly knew how to write different provisions but chose not to do so in the statute at hand,  strengthens the interpretation that the legislative body did not intend for different provisions to apply.  In writing this statute, Congress did not intend to write the different provisions you propose in your changed rules and regulations.   It is worth noting here that you have not introduced your proposal in Congress to change the law, because you do not have the votes.

            For all these reasons, whether taken separately or together, your proposed rules changes are invalid, without authority, and contrary to the Congressional mandate specified in 8 USCA § 1225.   Your proposed rules changes should be withdrawn accordingly.

            Thank you for your consideration of these Comments.

Sincerely,

Dennis J. Wall

IS INSURANCE BAD FAITH TOO DIFFICULT FOR 21st CENTURY JOURNALISM?

Insurance bad faith may be too difficult for 21st Century Journalism.  Hear what I have to say and decide for yourself.

My example is taken from the Code of Federal Regulations.  I will not embarrass you by telling you the grade I got in Administrative Law in Law School.  (Actually, I will not embarrass myself and so I will not tell you the grade.)  It is enough for my present purpose to say that I have recently learned some things about how Federal Rules and Regulations are written, adopted, and issued.  This will be a broad, general overview so if you find yourself thinking of many exceptions, that will be natural.

Most rules are published in draft with a Comment Period.  The Comment Period can vary from proposed rule to proposed rule, but it is usually 30 or 60 days.  The Comment Period begins when a proposed rule is officially published for public comment.  The key concept here is that during that entire time it is only a proposed rule.  It is not yet the law.  The corporate media very often gets this wrong.  It's as if they cannot process the actual concept.

The current regime posted a draft rule on June 12.  It would purport to abolish LGBTQ rights under the Affordable Care Act by allowing discrimination.  The corporate media reported that the current regime changed the law that day.  The regime did not.  They did not have the power.  21st Century Journalism conferred that power on them, but they did not have it before that.

Further, what the current regime published on June 12 was a draft rule expressly slated for official publication on June 19, a week later, when the official Comment Period will begin.  So, the earliest that the proposed discriminatory rollback rule can take effect is 60 days (the end of the Comment Period for this particular proposed Rule) from Friday, June 19 (not from Friday, June 12), or what I calculate as the end of business on Tuesday, August 18, 2020.  (Courts will certainly have something to say about all this, as well.)

Accordingly, diary your calendars to leave your Comment on regulations.gov against the regime's proposed discrimination in healthcare against LGBTQ patients, by Tuesday, August 18, 2020.

But back to the point at hand before coming to the end of this article.  It is a simple point, in the end:  If the commercial media cannot get proposed rules right, do not expect that they will get anything about insurance bad faith right when they report on any of its developments.  Rather, take advantage of what 21st Century Journalism does well and use their reports of developments as the starting point for your own forensic investigation, i.e., your own research in this case.  As the respected journalist John Nichols has himself very recently observed, the media are very good at reporting on a fire but not so good at reporting on a movement.

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.

 

 

 

THE DISPARATE IMPACT OF INSURANCE COMPANIES ON THE HUD REGULATION.

I left the following Comments among others today on www.regulations.gov. You can too! Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below. Be heard!

Friday, October 18, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed § 100.500(e) is arbitrary and capricious. Moreover it is a misguided attempt to "reverse preempt" current § 100.70(d)(4).

1. Your new paragraph (e) is arbitrary and capricious.

Your proposed new § 100.500(e) is arbitrary and capricious. You propose to proceed by case-by-case adjudication involving disparate-impact theories of liability concerning insurance, rather than rule-making. You have not provided a reasoned explanation for preferring case-by-case adjudication over rule-making which, after all, is the reason that HUD exists, i.e., to make rules. Under established law, as you know from a decision that you cite in your proposal, "[a]lthough HUD had discretion to decide whether to proceed by case-by-case adjudication or rule-making, it needs to provide a reasoned explanation for preferring case-by-case adjudication over rule-making. HUD's failure to do so was arbitrary and capricious." Prop. Cas. Ins. Ass'n of Am. v. Donovan, 66 F. Supp. 3d 1018, (N.D. Ill. 2014).
This holding was reached during judicial consideration of a previous version of this same regulation. So it is again regarding your current version: Your proposed, revised regulation is arbitrary and capricious with respect to the business of insurance as you have addressed it here, including by your proposed paragraph (e) and your proposed new section 100.500.

 

2. Your new paragraph (e) contravenes the Fair Housing Act's own statutory provisions, which supersede any conflicting proposed regulations of an administrative agency, as here. Further, it is an invalid and void attempt to "reverse preempt" insurance companies from disparate-impact liability for discrimination under the Fair Housing Act, and for these reasons it is unauthorized and unreasonable, as well as arbitrary and capricious.

The HUD Disparate Impact regulation already addresses the denial of "property or hazard insurance" in § 100.70(d)(4):

(d) Prohibited activities relating to dwellings under
                        paragraph (b) of this section include, but are not limited to:
* * *

(4) Refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.

Because of § 100.70(d)(4), "denying 'property or hazard insurance' violates the FHA." Nat'l Fair Hous. Alliance v. Travelers Indem. Co., 261 F. Supp. 3d 20, 30 (D.D.C. 2017).

Your proposed addition of § 100.500(e) would risk immunizing insurance providers who otherwise violate the provisions of section 100.70(d)(4), quoted in full above:

(e) Business of insurance laws.
Nothing in this section is intended to invalidate, impair, or supersede any law enacted by any state for the purpose of regulating the business of insurance.

84 F.R. at 42863.

    The Fair Housing Act already contains a provision governing the effect on State laws including that the FHA shall not be construed to invalidate or limit any such conflicting law, with an exception that you do not recognize in your proposal. Under the FHA, Congress would invalidate any State or local law "that purports to require or permit any action that would be a discriminatory housing practice [under the FHA] shall to that extent be invalid." 42 U.S.C.A. § 3615. Your proposal is unreasonable in that it adds nothing to the law as it currently exists, in other words, there is simply no reason for your proposal. Further, your proposal conflicts with the Statute enacted by Congress on the same subject and your proposal is void as a result.

    The McCarran-Ferguson Act, for its part, famously leaves the regulation of insurance to the States. The Congressional deference to the States in this regard is so strong that the McCarran-Ferguson Act includes a "reverse preemption" provision by which conflicting federal laws are deemed preempted by State insurance laws in appropriate circumstances. See 15 U.S.C.A. § 1012. It has been said that "the key issue in analyzing whether the McCarran-Ferguson Act reverse-preempts this application of the FHA is the specific details of the state insurance law that supposedly contradicts the FHA." Nat'l Fair Hous. Alliance v. Travelers Indem. Co., 261 F. Supp. 3d 20, 34 n.4 (D.D.C. 2017) (italics in original; emphasis by the court). Here as well you have not identified any specific details of any state insurance law that supposedly contradicts the FHA. Your attempt at reverse preemption with the addition of new § 100.500(e) is as a result both invalid and void.

    Thank you for your consideration of these Comments. 

Sincerely Yours,
Dennis J. Wall

Download IMMUNIZING INSURANCE COMPANIES FROM HOUSING DISCRIMINATION.COMMENTS TO PROPOSED DISPARATE IMPACT RULE REVISIONS BY HUD. 3. 10.18.19.

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RESISTING UNAUTHORIZED BURDENS AND SPURIOUS DEFENSES.

I left the following Comments among others today on www.regulations.gov. You can too! Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below. Be heard!

Thursday, October 17, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed revisions to the current Disparate Impact Rule are found at 84 F.R. 42854 -42863, with your Summary and your Supplementary Information.

The Comments below continue several comments on your proposed revisions.

Your proposed § 100.500(d) mis-states FHA law and would impose new, additional requirements not found either in the Fair Housing Act or in FHA law. You simply do not have the authority to rewrite any statutes nor any judicial decisions including ones that you do not like.

1. Your new paragraph (d)(1) incorrectly imposes burdens on persons pursuing discrimination claims on a disparate impact theory that the FHA and that FHA case law do not impose. It is not your place to impose them where Congress and the courts have refused to do so.

(i) The "elements in paragraphs (b)(2) through (5) of this section" as you call them are not proper elements of proof in the context of such claims.

Please see our earlier Comments concerning your new paragraphs (b)(2) through (5) of this section in particular, which are expressly incorporated herein by reference. A pdf copy will be appended to these Comments for this purpose and for your ease of reference.

(ii) This subparagraph (ii) in your new paragraph (d)(1) is an attempt on your part to introduce entirely new legal requirements in FHA law. You would effectively provide that even if an FHA plaintiff has proven the availability of less restrictive means for the defendant to pursue its policy objectives, then still the plaintiff must also prove yet another thing. You would require the FHA plaintiff at that point in a disparate impact discrimination liability case to also prove that the alternative means would not "impos[e] materially greater costs on, or creat[e] other material burdens for, the defendant." This requirement in your new subparagraph (ii) has no justification and no reason for existence.

By proposing your new requirements in subparagraph (ii), you would heap up burdens on FHA disparate treatment discrimination plaintiffs that never previously existed. This you may not do. You completely lack the authority to do so.

 

2. Your new paragraph (d)(2) incorrectly allows defenses to be raised by defendants in FHA discrimination claims that are based on a disparate impact theory, that the FHA and that FHA case law do not recognize.

(i) and (ii). What has been said above applies to these subparagraphs as well. The above Comments, and the Comments that were left previously to your § 100.500(b) (please see attached pdf, for example), are expressly incorporated herein by reference.

(iii). It bears repeating that your introduction of an unrecognized issue that a defendant in such an FHA discrimination case can escape liability by evidence that less restrictive alternatives to the defendant's discriminatory policies "would materially impose greater costs" or would "creat[e] other material burdens for the defendant," do not exist in the statutory language chosen by Congress or in the judicial opinions written by judges in the FHA case law. You do not have the authority to rewrite any of them.

Moreover, your statutory charge is to implement the FHA concerning the effects of discrimination.
Your duties are described in the Fair Housing Act. The Congressional statement of purpose is to facilitate relief from discrimination in the national housing market. Your duties do not include shielding defendants from "materially greater costs" or "other material burdens" as a consequence of their proven discrimination.

Thank you for your consideration of these Comments. As was noted from the beginning, more Comments will follow.
Sincerely Yours,
Dennis J. Wall

Download RESISTING UNAUTHORIZED BURDENS AND SPURIOUS DEFENSES.COMMENTS TO PROPOSED DISPARATE IMPACT RULE REVISIONS BY HUD. 2. 10.17.19.

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FIGHTING DISAPPEARING DISPARATE IMPACT DISCRIMINATION IN HOUSING.

I left the following Comments among others today on www.regulations.gov.  You can too!  Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below.  Be heard!

Thursday, October 17, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed revisions to the current Disparate Impact Rule are found at 84 F.R. 42854 -42863, with your Summary and your Supplementary Information.
These are the first of several comments on your proposed revisions.
Your proposed new § 100.500(b) is unreasonable and invalid. You propose to revise existing law on when a plaintiff alleging discrimination under the Fair Housing Act has made a prima facie case under a theory of discrimination by disparate impact. Your proposed revision is not based on facts and it is not based on the law established under the Fair Housing Act you say that you are implementing. You do not have the authority to make new law especially when it is contrary to existing statutes and FHA case law. The entire proposed new section 100.500(b) is found in 84 F.R. at 42862.
The current HUD regulation, § 100.500 as it has existed from long before your proposed revision of it, has been justly described as "similar to the framework the Supreme Court ultimately adopted in Inclusive Communities, and indeed, some courts believe the Supreme Court implicitly adopted the HUD framework altogether." Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 424 n.4 (4th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 2026 (2019). You of course claim in your proposal not only to have followed the Inclusive Communities decision but to credit that decision as the genesis of your proposal. Without deciding whether the Court followed the HUD regulation, the following Comments will address your proposed revision of the regulation.
(1) Your proposed § 100.500(b)(1) is contrary to the law established under the Fair Housing Act. Further, you have not shown any reason to undo and restate rules and regulations that were enacted by HUD when HUD had access to the relevant law that you rely on in your proposed revisions. This is not an attempt on your part to align the HUD regulation on Disparate Treatment with subsequent case law. as you say. Rather, this is an attempt on your part to re-align and rewrite HUD's previous regulation on Disparate Treatment because you do not approve of it.
You do a couple of things throughout your proposed revisions that are worth noting at the beginning here. You rely throughout your proposal on the 2015 decision by the U.S. Supreme Court in the case of Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). The requirements you propose under paragraph (b)(1) of your rewritten section 100.500 are not imposed by the Inclusive Communities decision, but are instead contrary to it. This will be discussed below as well.
Another thing that you do throughout your proposal is take words and phrases from judicial opinions and propose them as new law here. Picking out words and phrases does not equal the law. It does not represent the law any more than reading case headnotes does. Certainly your proposed paragraph (b)(1) does not represent FHA law, but rather is contrary to established law. In this regard, it should not have to be pointed out, but I will point it out for the record here, that HUD simply lacks the authority to invent the law let alone to disregard it. Further, any attempts by HUD to do so are unreasonable and invalid due to its lack of authority alone if for no other reason.
Your proposed revision is strikingly reminiscent of a recent federal appellate court's description of a lower court's erroneous view of causation in disparate impact claims brought under the Fair Housing Act. Like that district court, your view would erroneously "seem to require an intent to disparately impact a protected class in order to show robust causality, thereby collapsing the disparate-impact analysis into the disparate-treatment analysis. [Citation omitted.] This goes far beyond the 'robust causality' requirement the Supreme Court described." Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 430 (4th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 2026 (2019) (italics in original; emphasis by the Fourth Circuit Court of Appeals). Or to put the same thing another way, "determining whether a plaintiff made a prima facie case of disparate-impact liability requires courts [and HUD] to look at whether a protected class is disproportionately affected by a challenged policy.... The extra step of determining whether such a practice that has a disparate impact on a protected class is justified is properly contained" within the defendant's burden of persuasion. See Reyes, 903 F.3d at 424, 430 (italics in original; emphasis by the Fourth Circuit Court of Appeals).

(2) Your proposed paragraph (b)(2) of your proposal to revise section 100.500 does not represent the law which has developed under the Fair Housing Act. Moreover, it would introduce ambiguity which would tend toward the denial of otherwise valid claims under the Act.
Your proposed paragraph (b)(2) is another time when you clearly cherry-picked language from the case law, this time seemingly from the Inclusive Communities decision itself. Yet while the majority opinion used the phrase "robust causal link" one time, Inclusive Communities, 135 S. Ct. at 2523, the Court's one-off use of that phrase was not an effort by the Court to re-define the law of proximate cause, as your proposed revision would do if it is implemented. Rather, the Court used that phrase as a shorthand way to describe the requirement that an FHA plaintiff relying on a theory of disparate impact to show discrimination must allege and prove causation. The Court did not attempt to define "robust causal link" in any way other than using it as a shorthand reference for the requirement in this context to prove causation.

(3) Your new, proposed § 100.500(b)(3) is again made unreasonable by your using an ambiguous, undefined phrase to require FHA plaintiffs to allege and prove "an adverse effect" if those plaintiffs are going to make a prima facie case of FHA violations under a disparate impact theory. This again is also contrary to law under the Fair Housing Act.
FHA law does not require proof of undefined "adverse effects." Other law may require and speak to such proofs, but not this one. The law under the Age Discrimination in Employment Act of 1967 or ADEA, for example, apparently does require proof that employment decisions "adversely affect" a person's employment status, but FHA law does not contain this requirement. You lack the authority to rewrite the statute you say that you are implementing. Only Congress has such authority; you do not.
You seem to want to introduce previously undefined concepts not addressed in the Fair Housing Act or in FHA case law, or in previous HUD rules and regulations. The use of undefined, previously unknown words and phrases in your proposed regulation greatly increases the risk of adverse decisions to FHA claimants, whether the increased risk is inadvertent or not.

(4) Your proposed new paragraph (b)(4) in your proposal to revise section 100.500 would impose a new requirement contrary to established law, and not found in the Fair Housing Act you say you are implementing, that a prima facie case of discrimination under a theory of disparate impact requires proof that the alleged disparity is "significant." To say again, that requirement is new. It is not imposed by the statute and it is contrary to settled law.
What the federal courts have required of disparate impact claims under the FHA is that the plaintiff show that the challenged practice have "a significantly disparate impact." This is not the same as your proposal to require proof of a "significant" disparity.
In addition, what you mean by "significant" is not clear from your proposed revisions. Once again, your proposals would introduce uncertainty and the attendant risk along with that uncertainty of legitimate claims being denied for no good reason.

(5) Your final new proposal to revise section 100.500 is to add a paragraph (b)(5) that would require something you call a "direct link" between impact and injury. Again, this new proposed requirement is not found in the Fair Housing Act and it is not found in the law surrounding the FHA. Rather, this new requirement you propose is another example of twisting words and phrases, like headnotes, in an attempt to re-write statutes and case law more to your liking. This is beyond your authority to do.
What has already been said above applies with equal force here as well: When courts have spoken of "direct" causal links, they were not trying to re-define the law of proximate cause, as your proposed revision would almost certainly do if it is implemented. Rather, the courts have sometimes used that phrase as a shorthand way to describe the requirement that an FHA plaintiff relying on a theory of disparate impact must show discrimination by alleging and proving causation as a part of her prima facie case.

Thank you for your consideration of these Comments. As was noted from the beginning, more Comments will follow.
Sincerely Yours,
Dennis J. Wall

Download FIGHTING DISAPPEARANCE OF ACTIONABLE DISPARATE IMPACT DISCRIMINATION. COMMENTS 1 TO HUD. 10.17.19.

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COMMENTS TO HUD PROPOSAL TO ELIMINATE DISPARATE IMPACT PROOF DUE FRIDAY 10.18.19.

Comments to the Department of Housing and Urban Development's proposal to eliminate proof of discrimination by proving disparate impact are due Friday, October 18, 2019.

The HUD proposal would effectively reduce all proof of discrimination to direct proof of intent, such as an admission by the perpetrators that they are guilty.

The proposed HUD rule would run contrary to a Supreme Court decision that is four years old.

Go to https://www.regulations.gov to leave your Comments, whatever your Comments may be.

Please Read The Disclaimer. ©2019 Dennis J. Wall.  All Rights Reserved.