National Alliance to End Homelessness et al v. Turner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
NATIONAL ALLIANCE TO END
HOMELESSNESS and WOMEN’S
DEVELOPMENT CORPORATION,
Plaintiffs,
v.
SCOTT TURNER, in his official
capacity as Secretary of the United
States Department of Housing and
Urban Development, and UNITED
STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT,
Defendants.
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C.A. No. 25-cv-00447-MSM-AEM
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
This case involves the executive branch’s attempt to leverage federal grant
funding to pressure compliance with its policy goals. After having already reviewed
applications 	and 	selected 	awardees 	for 	grant 	funding 	intended 	to 	address
homelessness, and just weeks before the statutory lapse of that funding, the
Department of Housing and Urban Development (“HUD”) issued new eligibility
criteria that would disqualify applicants from jurisdictions that do not align with the
current administration’s immigration and homelessness policies. 	This new criteria
also requires each applicant to certify that it will not operate safe injection sites (even
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on its own dime) and, peculiarly, that the applicant “does not and will not deny the
sex binary in humans or promote the notion that sex is a chosen or mutable
characteristic.” (ECF No. 25-1 at 31.)
Two nonprofit organizations that work to address homelessness (together,
“Plaintiffs”) 	sued 	both 	HUD 	and 	HUD 	Secretary 	Scott 	Turner 	(together,
“Defendants”), challenging HUD’s actions as unlawful. (ECF Nos. 1; 25.) Before the
Court is the Plaintiffs’ Motion for Summary Judgment (ECF No. 26) and the
Defendants’ Cross-Motion for Summary Judgment (ECF No. 28.) 	For the following
reasons, the Plaintiffs’ Motion for Summary Judgment is GRANTED IN PART and
DENIED 	IN 	PART, and Defendants’ 	Cross-Motion 	for Summary 	Judgment 	is
GRANTED IN PART and DENIED IN PART.
I. 	BACKGROUND
Congress enacted the McKinney-Vento Homeless Assistance Act (“Homeless
Assistance Act”) in 1987 to provide federal funding for programs that seek to
ameliorate homelessness. 	Pub. L. No. 100-77, § 102, 101 Stat. 482, 484-85 (1987),
codified at 42 U.S.C. § 11301. 	Congress amended the Homelessness Assistance Act
in 2009 through the Rapid Transition to Housing Act, establishing the Continuum of
Care (“CoC”) program to help individuals and families experiencing homelessness
move into transitional and permanent housing. Pub. L. No. 111-22, div. B, tit. III, §
1301(2), 123 Stat. 1632, 1680-84 (2009),
codified at 42 U.S.C. § 11381. 	Grants
awarded under CoC must be used to carry out one or more of a set of statutorily
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prescribed activities related to increasing homeless individuals’ access to housing and
supportive services.
See 42 U.S.C. §§ 11383(a), 11360(29).
A statutory framework governs HUD’s administration of grant funding for
programs like CoC. Under 42 U.S.C. § 12711, HUD is barred from “establish[ing] any
criteria for allocating or denying funds . . . based on the adoption, continuation, or
discontinuation by a jurisdiction of any public policy, regulation, or law that is (1)
adopted, 	continued, 	or 	discontinued 	in 	accordance 	with 	the 	jurisdiction’s 	duly
established authority, and (2) not in violation of any Federal law.” 	42 U.S.C. §
11386a(b)(1) sets required selection criteria for awarding funds, including: (A) “the
previous performance of the recipient regarding homelessness”; (B) the recipient’s
planned use of the funds to address homelessness; (C) the methodology used by the
recipient in determining project priority; (D) “the extent to which the amount of
assistance to be provided . . . will be supplemented with resources from other public
and private sources”; (E) the “demonstrated coordination by the recipient” with other
entities targeting homelessness; (F) the program goals and outcomes of recipients
who serve homeless families with children and youth; and (G) “such other factors as
the Secretary determines to be appropriate to carry out this part in an effective and
efficient manner.” 	42 U.S.C. § 11386(b) outlines a list of required terms to which a
recipient must agree to receive funds, all relating to effective administration of
proposed projects, including a residual clause permitting “such other terms and
conditions as the [HUD] Secretary may establish to carry out this part in an effective
and efficient manner.”
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The HUD Reform Act of 1989 further requires that HUD publish the criteria
through which it selects awardees “[n]ot less than 30 days before any deadline by
which applications . . . must be submitted.” 	42 U.S.C. § 3545(a)(3). 	This deadline
may only be waived “if the Secretary determines that the waiver is required for
appropriate response to an emergency.”
	Id. § 3545(a)(5). 	In such circumstances,
“[n]ot less than 30 days after providing a waiver . . . the Secretary shall publish in
the Federal Register the Secretary’s reasons for so doing.”
In 2022, Congress appropriated $75 million for “one-time awards under the
Continuum of Care program for new construction, acquisition, or rehabilitation of
new permanent supportive housing.” Consolidated Appropriations Act of 2023, Pub.
L. No. 117-328, div. L, tit. II, 136 Stat. 4459, 5160 (2022). 	Awards from these
appropriations are required to be made “on a competitive basis, based on need and
other factors to be determined by the Secretary, including incentives to establish
projects that coordinate with housing providers, healthcare organizations and social
service providers.”
	Id. 	These funds were to “remain available until September 30,
2025.”
Id. at 5158.
HUD issued a notice of funding opportunity (“NOFO”) in July 2024 to solicit
applications for these CoC funds. (ECF No. 26-2 at 13.) Although those applications
were due in December 2024,
id. at 18, HUD did not make any awards before the
change in presidential administrations. Instead, HUD published a new CoC Builds
NOFO on May 16, 2025.
Id. at 5. That NOFO, which stated that it “aligned with the
President’s Executive Orders and the goals of the Administration,” required prior
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applicants to resubmit their applications.
Id. Due to the impending expiration of the
appropriated funds in September, a 45-day deadline (rather than the usual 60-day
deadline) was set for applications.
	Id. at 7. 	From the 107 applications it received,
HUD selected 14 applicants for awards, and it notified Congress in August 2025 that
those awards had been made.
Id. at 10–12.
However, before any awards were actually finalized, on September 5, 2025,
HUD issued a new NOFO with a deadline of 3 p.m. on September 12.
	Id. at 568.
This NOFO included two categories of new criteria (collectively, “New Criteria”)
required for all recipients.
Id. at 168–77. First, the NOFO required that the proposed
project be located in a jurisdiction that “enforces laws and/or ordinances prohibiting
urban camping or loitering, prohibiting open illicit drug use, and prohibiting urban
squatting,” “cooperates with Federal immigration enforcement,” and “[s]ubstantially
implements 	and 	complies 	with 	SORNA 	[the 	Sex 	Offender 	Registration 	and
Notification Act], particularly in the case of registered sex offenders with no fixed
address, including by adequately mapping and checking the location of homeless sex
offenders.”
	Id. 	Plaintiffs categorize these requirements as “Jurisdiction-Based
Criteria.” (ECF No. 27 at 20.)
Second, the September 5, 2025 NOFO added two criteria related to applicants’
own activities, apparently without regard for whether those activities are related to
federal funding. 	(ECF No. 26-2 at 176, 179.) 	One of these criteria requires each
applicant to certify that it “does not” and “will not operate drug injection sites or ‘safe
consumption sites,’ knowingly distribute drug paraphernalia on or off of property
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under their control, permit the use or distribution of illicit drugs on property under
their control, or conduct any of these activities under the pretext of ‘harm reduction.’”
Id. at 171. The other (the “Sex Binary Criterion”), contained within a provocatively
named subsection “Affirming Fairness and Reality,” requires each applicant to certify
that it “does not and will not deny the sex binary in humans or promote the notion
that sex is a chosen or mutable characteristic.”
Id. at 176. Plaintiffs categorize these
two requirements as “Applicant-Based Criteria.” (ECF No. 27 at 21.)
The September 5 NOFO outlined a three-step process for reviewing awards,
which ensures that applicants who fail to satisfy these criteria are ineligible for CoC
Builds awards.
	See ECF No. 26-2 at 168–79. 	The NOFO states that eligible
applicants will receive awards on, effectively, a first-come, first-served basis.
	Id. at
179–80. 	Defendants appear to have provided no contemporaneous rationale for the
added criteria or other changes in CoC awards, apart from a statement referencing
two 	Executive 	Orders 	related 	to 	grant 	administration 	and 	homelessness 	and
asserting that the September 5 NOFO “upholds” those orders. (ECF No. 26-2 at 9.)
Plaintiffs sued Defendants on September 11, 2024 challenging the September
5 NOFO’s new criteria and process. (ECF No. 1.) Plaintiffs moved that same day for
a temporary restraining order enjoining HUD from imposing or implementing the
criteria and pausing the expiration of the appropriated CoC funds. (ECF No. 2.) The
Court granted the requested order, barring Defendants from awarding the funds and
suspending the funds’ lapse. 	(ECF No. 14.) 	The parties subsequently agreed to
proceed directly to summary judgment. (ECF No. 16.)
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On October 2, 2025, HUD published in the Federal Register its reasons for
waiving the statutorily mandated 30-day application period. 90 Fed. Reg. 47809 (Oct.
2, 2025). 	According to HUD, “exigent and emergency circumstances” justified the
shortened period based on the impending September 30 deadline for awarding the
CoC Builds funds.
	Id. at 47810. 	HUD explained that the September 5 NOFO was
issued so close to the deadline because the new “administration needed adequate
time” 	to 	ensure 	that 	HUD’s 	“grantmaking 	activity 	aligned 	with 	the 	current
administration’s policy priorities.”
	Id. 	HUD claimed that September 5th “was the
earliest 	the 	NOFO 	could 	be 	published 	while 	still 	meeting 	HUD’s 	statutory
requirement to obligate the CoC funds before they expire on September 30, 2025.”
Id.
Plaintiffs subsequently amended their Complaint to,
inter alia, add claims related to
HUD’s delays in administering the CoC Builds grants.
See ECF No. 25.
II. 	STANDARD OF REVIEW
A motion for summary judgment requires the moving party to show “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). 	A fact is material if it “might affect the
outcome of the suit under the governing law.”
	Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). 	In ruling on a motion for summary judgment, “[a]ll reasonable
inferences are to be drawn in favor of the party opposing summary judgment,” and
“all disputed facts are viewed in the light most favorable” to that party.
O’Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993). 	“Where the parties cross-move for
summary judgment, the court must examine each motion separately, drawing
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inferences 	against 	each 	movant 	in 	turn.”
	Vazquez-Velazquez 	v. 	Puerto 	Rico
Highways & Transp. Auth., 73 F.4th 44, 51 (1st Cir. 2023) (cleaned up).
“[T]he summary judgment rubric has a ‘special twist in the administrative law
context.’”
Boston Redevelopment Auth. v. Natl. Park Serv., 838 F.3d 42, 47 (1st Cir.
2016) (quoting
Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.
1997)). 	“In that context, a motion for summary judgment is simply a vehicle to tee
up a case for judicial review and, thus, an inquiring court must review an agency
action not to determine whether a dispute of fact remains but, rather, to determine
whether the agency action was arbitrary and capricious.”
	Id. 	In making that
determination, “the court shall review the whole record or those parts of it cited by a
party.” 5 U.S.C. § 706.
III. 	DISCUSSION
Plaintiffs challenge the New Criteria on three grounds. 	(ECF No. 27 at 26–
46.) 	First, 	Plaintiffs 	claim 	that 	the 	New 	Criteria 	violate the 	Administrative
Procedure Act (“APA”) because they are contrary to law, exceed Defendants’ statutory
authority, are arbitrary and capricious, and are contrary to the Constitution.
	Id. at
27–36.) 	Second, Plaintiffs contend that the New Criteria violate the Constitution;
specifically, constitutional separation of powers principles, the Spending Clause, the
Tenth Amendment, and the First Amendment.
Id. at 36–45. Third, Plaintiffs assert
that the New Criteria are ultra vires conduct—that is, in excess of Defendants’
statutory authority—and that, even should the APA not provide an adequate
opportunity 	for 	judicial 	review—the 	Court 	must 	enjoin 	Defendants 	from
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implementing or enforcing them.
Id. at 45–46. Plaintiffs also challenge Defendants’
delay in awarding the CoC Builds grants as unreasonable and unlawful.
	Id. at 37–
40.
Defendants challenge the availability and merits of Plaintiffs’ claims. 	(ECF
No. 28-1.) Because the heart of this case is easily resolved by Plaintiffs’ APA claims,
the Court focuses its analysis there.
A. 	Defendants’ Actions Violated the APA
Under 5 U.S.C. § 706(2)(A), when reviewing a challenge under the APA, the
reviewing court must “hold unlawful and set aside agency action, findings, and
conclusion found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” The APA thus “requires agencies to engage in ‘reasoned
decisionmaking.’”
Dep’t. of Homeland Sec. v. Regents of the U. of California, 591 U.S.
1, 16 (2020) (quoting
Michigan v. E.P.A., 576 U.S. 743, 753 (2015)). 	“An agency’s
decision 	is 	arbitrary 	and 	capricious 	if 	the 	agency 	relied 	on 	improper 	factors,
disregarded ‘an important aspect of the problem, offered an explanation that runs
counter to the evidence,’ or when a reasonable explanation for the agency’s decision
cannot be discerned.”
Gulluni v. Levy, 85 F.4th 76, 82 (1st Cir. 2023) (quoting
Motor
Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). When changing positions, an agency “of course . . . must show that there are
good reasons for the new policy,”
FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009), and must consider any “serious reliance interests” engendered by the
status quo,
Regents, 591 U.S. at 30. Importantly here, “[i]t is a ‘foundational principle
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of administrative law’ that judicial review of agency action is limited to ‘the grounds
that the agency invoked when it took the action.’”
	Regents, 591 U.S. at 20 (quoting
Michigan, 576 U.S. at 758).
As a threshold matter, Defendants challenge the availability of APA review for
Plaintiffs’ claims because “with certain limited exceptions” Defendants’ decisions
were “committed to agency discretion by law” and therefore not among those
categories of agency actions that are judicially reviewable under the APA.
	See ECF
No. 28-1 at 15–16 (quoting 5 U.S.C. § 701(a)(2)). But as this and other courts facing
similar challenges have determined, 5 U.S.C. § 701(a)(2)’s restriction of judicial
review is to be read “quite narrowly,” and applies only to “those rare circumstances
where the relevant statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.’”
	Dep’t of
Commerce v. New York, 588 U.S. 752,772 (2019) (quoting
Weyerhaeuser Co. v. U.S.
Fish and Wildlife Serv., 586 U.S. 9, 22 (2018));
see also Illinois v. Noem, No. 1:25-CV-
00495-MSM-PAS, 2025 WL 3707011, at *14 (D.R.I. Dec. 22, 2025). 	Here, the
statutory framework governing the CoC programs and the APA itself provide
meaningful standards for reviewing HUD’s administration of the CoC Builds grants.
APA review is therefore not foreclosed by 5 U.S.C. § 701(a)(2).
Having disposed of that threshold issue, the Court finds that Defendants’
actions in imposing the New Criteria—and in reissuing the NOFO itself—violated
the APA. 	At the outset, the Court notes that Defendants provided no meaningful
contemporaneous explanation for their decision to reissue the CoC Builds NOFO with
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the New Criteria. 	While Defendants propose that their post-hoc rationalizations of
that decision help illuminate “reasons obscured but implicit in the administrative
record,”
see ECF No. 30 at 12 (quoting
Clifford v. Pena, 77 F.3d 1414, 1418 (D.C. Cir.
1996)), 	Defendants 	provide 	scant 	support 	for 	this 	assertion, 	citing 	only 	(1) 	a
September 5 email to prospective recipients notifying them of the new NOFO and
stating that it “upholds the President’s Executive Orders on homelessness and the
grantmaking process” and (2) a September 11 email exchange involving a HUD
official engaging in some discussion of the NOFO’s language about illicit drug use.
See ECF No. 28-1 at 11–14. Neither these emails nor the rest of the administrative
record before the Court illuminates any “obscured but implicit” reasons for HUD’s
decision to reissue the CoC Builds NOFO with the New Criteria within weeks of the
statutory deadline, after having already announced awardees. 	Absent any such
reasonable explanation for its actions, its decisions were quintessentially arbitrary
and capricious.
See Gulluni, 85 F.4th at 82.
The New Criteria also violate the APA by exceeding Defendants’ statutory
authority. 	“When an executive agency administers a federal statute, the agency's
power to act is ‘authoritatively prescribed by Congress.’”
	City of Providence v. Barr,
954 F.3d 23, 31 (1st Cir. 2020) (quoting
City of Arlington v. FCC, 569 U.S. 290, 297
(2013)). “It is no exaggeration to say that ‘an agency literally has no power to act . . .
unless and until Congress confers power upon it.’”
Id. (quoting
La. Pub. Serv. Comm'n
v. FCC, 476 U.S. 355, 374 (1986)). 	“Any action that an agency takes outside the
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bounds of its statutory authority is ultra vires and violates the Administrative
Procedure Act.”
Id. (internal citations omitted).
Here, Congress established required selection criteria for awarding funds for
programs like CoC Builds.
	See 42 U.S.C. §§ 11386a(b)(1); 11386(b). 	As none of the
specific criteria included in those statutes encompass the kinds of policy objectives
advanced by the New Criteria, Defendants rely on residual clauses affording the
Secretary some discretion in making awards based on “such other factors as the
Secretary determines to be appropriate.” (ECF No. 28-1 at 16–17) quoting 42 U.S.C.
§ 11386(a)(b)(1)(G);
see also id. § 11386(b)(8). But as this Court has previously stated,
“the existence of a residual clause at the end of [a] list cannot be read as surrendering
unbridled discretion to Defendants” in grant administration.
	Illinois v. Noem, 2025
WL 3707011, at *13;
see also City of Providence v. Barr, 954 F.3d 23, 40–41 (1st Cir.
2020) 	(rejecting 	similar 	arguments 	reading 	a 	residual 	clause 	as 	authorizing
discretion to impose unrelated immigration cooperation conditions on grant funding).
And another court has already rejected Defendants’ arguments as they pertain to
CoC grant funding.
	See Martin Luther King, Jr. Cnty. v. Turner, 785 F. Supp. 3d
863, 886–87 (W.D. Wash. 2025),
appeal docketed, No. 25-3664. 	The Court likewise
determines that the New Criteria exceeded Defendants’ statutory authority.
The Jurisdiction-Based Criteria further violate the APA because they are
contrary to 42 U.S.C. § 12711’s explicit prohibition on criteria that are “based on the
adoption, continuation, or discontinuation by a jurisdiction of any public policy,
regulation, or law” so long as that policy or law was “(1) adopted, continued, or
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discontinued in accordance with the jurisdiction’s duly established authority, and (2)
not in violation of any Federal law.” 	Defendants claim that the Jurisdiction-Based
Criteria is not, in fact, “based” on jurisdictional laws or policies, but are instead based
on “carrying out the CoC program efficiently and effectively.” (ECF No. 28-1 at 19–
20.) 	This is sheer sophistry. 	The Jurisdiction-Based Criteria obviously fall within
the plain meaning of 42 U.S.C. § 12711 terms because they determine eligibility for
CoC funds based on whether an applicant is located in a jurisdiction that maintains
certain public policies or laws. 	The Jurisdiction-Based Criteria therefore clearly
violate that statute.
Plaintiffs also challenge the Sex Binary Criterion as contrary to law based on
existing statutory and regulatory prohibitions on discrimination. (ECF No. 27 at 34–
35.) 	Defendants 	expressly 	decline 	to 	defend 	the 	Sex 	Binary 	Criterion, 	and
acknowledge that it “may be read to apply to grantee actions beyond the scope of
federal funding,
contra Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.
205 (2013).” (ECF No. 28-1 at 24.) Given the merits of Plaintiffs’ arguments against
the Sex Binary Criterion and Defendants’ refusal to defend that criterion, the Court
concludes that it is also unlawful under the APA.
Plaintiffs’ claim that Defendants’ unreasonably delayed or unlawfully withheld
required agency action also implicates the APA; namely, 5 U.S.C. § 706(1), which
requires 	a 	reviewing 	court 	to 	“compel 	agency 	action 	unlawfully 	withheld 	or
unreasonably delayed.”
See Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004)
(explaining that “[t]he APA provides relief for a failure to act in § 706(1)”). 	But as
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Defendants note, “[g]enerally ‘[t]he cases in which courts have afforded relief have
involved 	delays 	of 	years.’”
	Am. 	Acad. 	of 	Pediatrics 	v. 	U.S. 	Food 	and 	Drug
Administration, 330 F. Supp. 3d 657, 664 (D. Mass. 2018) (quoting
	Towns of
Wellesley, Concord and Norwood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir. 1987));
see also id. at 665 (collecting cases). Here, while Defendants did apparently engage
in some degree of delay by waiting until September to reissue the CoC Builds NOFO,
the statutory deadline for Defendants to award the funds had not yet passed before
the Court enjoined the lapse of those funds. 	While the Court’s injunction may not
necessarily “free” HUD from its obligation to award funds in a timely manner,
see id.
at 664, the delay in agency action here does not amount to the kind of unreasonable
delay found actionable by other courts, and—as the Court has already determined
Defendants’ actions otherwise violated the APA—is likely unnecessarily duplicative
of Plaintiffs’ other claims.1
B. 	Vacatur and Declaratory Relief Are Warranted
In their Motion for Summary Judgment, Plaintiffs request that the Court do
the following:
(1) declare unlawful, vacate, and set aside the September 5 NOFO, the New
Criteria, and the one-week application period;
(2) permanently enjoin Defendants, their agents, and all persons acting in
concert or participation with Defendants from imposing or implementing the
1 However, should Defendants persist in attempting to add unlawful criteria to CoC
Builds grants following this Court’s order, Defendants may expose themselves to a
future 5 U.S.C. §706(1) claim.
Cf. Oxfam Am., Inc. v. SEC, 126 F. Supp. 3d 168, 172–
73 (D. Mass. 2015) (concluding that an agency’s promulgation of a later vacated rule
constituted “inadequate action” that did not satisfy statutory requirements).
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New Criteria, or any substantively similar criteria, on any HUD CoC Builds
awards in any manner, including by requiring applicants to meet the criteria
to be considered for an award or to receive an award, by considering those
criteria in selecting awardees, or by requiring grantees to comply with such
criteria upon obtaining an award;
(3) compel Defendants to award expeditiously, pursuant to lawful criteria and
process, the $75 million that Congress appropriated for one-time awards under
the CoC program for permanent supportive housing; and
(4) continue exercising its equitable authority to preserve the appropriated
CoC Builds funds for award pending Defendants’ compliance with the Court’s
order requiring lawful award of the funds.
(ECF No. 26 at 1–2.) 	Having determined that Plaintiffs’ 5 U.S.C. § 702(1) claim is
unsupported by the present circumstances, and confident that it continues to possess
the authority to preserve the appropriated CoC Builds funds, the Court focuses on
the first two forms of relief Plaintiffs request.2
Defendants propose that, should the Court find for Plaintiffs, “the appropriate
relief would be to remand to the agency so that HUD can revise the NOFO with lawful
criteria and/or so that HUD can address any finding that it acted arbitrarily and
capriciously and provide a more reasoned explanation of its actions.” (ECF No. 28-1
2 While Defendants raise some doubts as to the Court’s equitable authority to prevent
appropriations from lapsing, citing
Goodluck v. Biden, 104 F.4th 920, 928 (D.C. Cir.
2024), as the Court has previously noted,
Goodluck appears to have questioned that
authority “based on that court’s apparent understanding of 31 U.S.C. § 1502(b) as
providing an alternate statutory basis for such authority.”
Illinois v. Noem, 2025 WL
3707011, at *9;
see Goodluck, 104 F.4th at 928 (“But in the appropriations context,
Congress has expressly authorized courts to suspend the lapse of budget authority
while lawsuits play out.”) (citing 31 U.S.C. § 1502(b)). The Court remains confident
that, whether through 31 U.S.C. § 1502(b), the Court’s own equitable authority, or
the underlying mechanics of federal appropriations,
see 1 U.S. Gen. Accounting
Office,
Principles of Federal Appropriations Law, 5-82 (3d ed. 2004), it continues to
possess the authority to suspend the expiration of the funds at issue here.
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at 33.) 	Defendants suggest that, should vacatur be warranted, the Court “need not
set aside the entire NOFO” and could instead simply sever any improper conditions
from the NOFO.
	Id. at 36. 	Defendants also challenge the appropriateness of a
permanent injunction, arguing that such an “extraordinary remedy” is not warranted
here because it is unnecessary, overbroad, vague, and otherwise not merited.
	Id. at
33–35.
Under 5 U.S.C. § 706(2)(A), a court that has found agency action to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”
must “hold unlawful and set aside” that agency action. 	Here, the unlawful agency
action was not just HUD’s decision to include the New Criteria for CoC Builds
awards, but its decision to reissue the NOFO for those awards at the last minute,
after having already determined awardees, and with only a seven-day deadline for
applications.3 As such, the appropriate remedy is to vacate the September 5 NOFO
altogether.
The Court now turns to Plaintiffs’ request that the Court permanently enjoin
Defendants 	from 	imposing 	the 	New 	Criteria. 	“According 	to 	well-established
principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-
factor test before a court may grant such relief.”
	eBay Inc. v. MercExchange, L.L.C.,
3 Although HUD has invoked the HUD Secretary’s authority to waive the statutory
30-day deadline for applications,
see 90 Fed. Reg. 47809 (Oct. 2, 2025), the “exigent
and emergency circumstances” it claims justified that waiver was the impending
September 30 deadline for awarding the CoC Builds funds. But this was an entirely
self-inflicted circumstance. 	Permitting HUD to create its own “emergency” through
its decision to reissue the NOFO would obviously and severely undermine the 30-day
deadline provided by Congress.
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547 U.S. 388, 391 (2006). 	“A plaintiff must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.”
	Id.
The third and fourth factors “merge when the Government is the opposing party.”
Nken v. Holder, 556 U.S. 418, 435 (2009). 	However, “[i]n the context of analyzing
claims under the APA, some courts have held that ‘once the court reache[s] the
conclusion that the rule was indeed illegal . . . there [is] no separate need to show
irreparable injury . . . .”
	Illinois v. FEMA, 2025 WL 2716277, at *15 (quoting
Nat’l
Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998))
(alterations in original).
Under these circumstances, the Court finds that permanent injunctive relief is
not warranted here. Plaintiffs’ only argument that they face irreparable harm absent
such an injunction is that they will lose the “‘opportunity to compete’ for the funds on
fair terms.”
	See ECF No. 27 at 51. 	But this contention appears to be an “overly
speculative forecast of anticipated harm” given the Court’s determination that
vacatur of the September 5 NOFO is appropriate here.
See Ross-Simons of Warwick,
Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996). While the Court acknowledges
that Defendants might, notwithstanding the Court’s finding that the New Criteria
are unlawful, nevertheless attempt reissue a NOFO containing those unlawful
criteria, that possibility is not enough to justify the “drastic remedy” of a permanent
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injunction.
	See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010)
(“If a less drastic remedy (such as partial or complete vacatur of [the agency’s]
decision) [is] sufficient to redress respondents’ injury, no recourse to the additional
and extraordinary relief of an injunction [is] warranted.”).
IV. 	CONCLUSION
Once again, this Court is faced with a case in which an executive agency has
made a last-minute decision to make major, disruptive changes to grants within its
purview, all for the express purpose of accomplishing the current administration’s
policy objectives. As it has stated before, the Court’s role here is not to evaluate the
merits of those policy objectives, and it remains “entirely possible that Defendants
could, through proper adherence to the APA and to both the text and intent of the
existing statutory framework, make rational adjustments to the way in which [grant]
funds are awarded to reflect the current administration’s [priorities].”
	Illinois v.
Noem, 2025 WL 3707011, at *19. 	And where the existing statutory framework
forecloses the particular adjustments that Defendants seek, the appropriate remedy
is to engage with Congress to obtain clear legal authorization through amendments
to that framework.
As it stands, however, Defendants violated the APA through their slapdash
imposition of political whims on CoC Builds grants. As such, for the reasons provided
above, the Plaintiffs’ Motion for Summary Judgment (ECF No. 26) is GRANTED IN
PART 	and 	DENIED 	IN 	PART, 	and 	Defendants’ 	Cross-Motion 	for 	Summary
Judgment (ECF No. 28) is GRANTED IN PART and DENIED IN PART. 	The
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September 5 NOFO, the New Criteria, and the one-week application period for CoC
Builds grants are declared unlawful and are ordered vacated and set aside. 	The
appropriated CoC Builds funds are continued to be ordered preserved pending
Defendants’ lawful awarding of those funds, consistent with the Court’s order.
Plaintiff’s request for a permanent injunction is denied.
IT IS SO ORDERED.
______________________________
Mary S. McElroy
United States District Judge
March 31, 2026
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