Had HUD known the truth about conditions in Dallas, it would have been prohibited from disbursing funds to Defendants. See 42 U.S.C. §§ 3608; 5304(b)(2); 24 C.F.R. §§ 91.225(a)(1), 570.

MacKenzie filed this suit after HUD entered into the voluntary compliance agreement with the City of Dallas. MacKenzie’s original complaint sought relief under a theory that HUD had failed to carry out a statutorily prescribed mission “affirmatively to Case 3:15-cv-00752-D Document 89 Filed 08/09/16 Page 9 of 26 PageID 1072 HUD Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint – Page 5 further” the policies of the Fair Housing Act in its investigation. (See Doc. 3, ¶ 1 (citing 42 U.S.C. § 3608(e)(5)).) However, the magistrate judge recommended dismissal of MacKenzie’s claim for lack of jurisdiction, on the ground that the issue of how best “affirmatively to further” the Fair Housing Act’s policies is committed to agency discretion and thus unreviewable in court. (See Doc. 48 at 3–5.) MacKenzie then sought leave to amend his complaint, which this Court granted rather than dismiss the case as the magistrate judge had recommended. (Doc. 69.) In the first amended complaint, MacKenzie no longer relied on the Fair Housing Act’s “affirmatively to further” provision. (See Doc. 70.)

Case 1:06-cv-02860-DLC Document 97 Filed 10/31/08 Page 15 of 41 10 Forty years ago, Congress enacted the original AFFH provisions as part of the Fair Housing Act (“FHA”). 42 U.S.C. § 3608(e)(5) requires that HCD programs be conducted “in a manner affirmatively to further the policies of [the FHA].”13 Congress clearly intended that recipients of HCD funds “act affirmatively to achieve integration in housing,” Otero v. New York City Housing Authority, 484 F.2d 1122, 1133 (2d Cir. 1973), and “saw the antidiscrimination policy [embodied in the Fair Housing Act] as the means to effect the antisegregation-integration policy.”