                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT


                                 No. 04-1614


Darst-Webbe Tenant Association Board,*
a Missouri non-profit corporation;     *
Housing Comes First, a Missouri non- *
profit corporation; Peabody Tenant     *
Association, a Missouri non-profit     *
corporation,                           *
                                       *
       Plaintiffs - Appellants,        *
                                       * Appeal from the United States
              v.                       * District Court for the Eastern
                                       * District of Missouri
St. Louis Housing Authority, a         *
Municipal corporation; Cheryl A.       *
Lovell, in her official capacity as    *
Director of the St. Louis Housing      *
Authority; United States Department of *
Housing and Urban Development; Mel *
Martinez, in his official capacity as  *
Secretary of United States Department *
of Housing and Urban Development,      *
                                       *
       Defendants - Appellees.         *


                        Submitted: December 16, 2004
                            Filed: August 8, 2005


Before MELLOY, BOWMAN, and BENTON, Circuit Judges.
MELLOY, Circuit Judge.

      On remand following partial summary judgment, a bench trial, and a prior
appeal, the district court1 found in favor of the defendants on six claims that relate to
alleged discrimination in housing. We affirm.

I. Background

       Plaintiffs-Appellants Darst-Webbe Tenant Association Board, Peabody Tenant
Association, and Housing Comes First, Inc., brought this action against Defendant-
Appellees the United States Department of Housing and Urban Development
(“HUD”) and the St. Louis Housing Authority (the “Housing Authority”). The
plaintiffs’ grievances arose from the defendants’ funding, approval, and
implementation of revitalization plans for the Darst-Webbe and Clinton Peabody
public housing complexes in the Near South Side of St. Louis, Missouri. The
revitalization plans employed federal HOPE VI program funds and called for the
demolition of older housing projects that contained a high density of low-income,
public housing rental units. The plans also called for the construction of mixed-
income housing.

       The proposed mix of housing for the revitalization area included: low-income,
public housing rental units in which rent was a percentage of the occupants’ income;
low-income tax credit units in which rent was a percentage of the area median
income; market rate rental units; and units built for sale at market and below-market
rates. The revitalization plans called for a reduction in the total number of low-
income, public housing rental units and also a reduction in the number of large, multi-
bedroom units capable of comfortably housing large families.



      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.

                                          -2-
       To aid in the redevelopment, the City of St. Louis applied for and received
Section 108 loan guarantees for improvements to the streets and other infrastructure
around the reconstructed area. The infrastructure improvements were designed to
eliminate the “superblock” model of the old projects, allow improved access for law
enforcement and emergency services, reconnect the neighborhood to the street grid
and the surrounding historic districts, and restore normal pedestrian and vehicle
flows.

       We set forth the history of this matter in Darst-Webbe Tenant Ass’n Bd. v. St.
Louis Housing Auth., 339 F.3d 702 (8th Cir. 2003) (“Darst-Webbe I”).2 There we
explained that the Darst-Webbe buildings, built in the 1950s, originally contained 758
low-income, public housing rental units for families and 242 units designated for use
by elderly residents. By 1995, when the Housing Authority formulated its initial
revitalization plan, many of the units were dilapidated and only 220 of the family
public housing rental units remained occupied. Those units were occupied almost
entirely by African-American residents, resulting in a segregated development.
Households with children and female-headed households were disproportionately
represented among the residents. These disproportions also existed to a substantial
extent among households on the waiting list for public housing and households
eligible for public housing.

       The Housing Authority did not proceed with demolition and reconstruction
under the initial, 1995 plan. As a result, HUD placed the Housing Authority in
default under the terms of the HOPE VI program. HUD then assisted the Housing
Authority in the development of a new revitalization plan. The product of this
collaboration was a modified, 1998 revitalization plan. Under the 1998 plan, which
is currently being implemented, the existing 758 total units/220 occupied units were


      2
       Like the first appeal in this litigation, the present appeal does not involve the
Clinton-Peabody complex or its residents.

                                          -3-
to be replaced with a mix of housing that included eighty low-income, public housing
rental units. Of the eighty replacement low-income, public housing rental units,
twelve contained four bedrooms and none contained more than four bedrooms.

       The plaintiffs brought the present action against the Housing Authority
requesting that an additional 120 low-income, public housing rental units be built on-
or off-site and that the unit mix include a greater number of units with four or more
bedrooms to accommodate large families. The plaintiffs also brought claims against
HUD, alleging various infirmities with HUD’s process of approving, and HUD’s
decision to approve and fund, the Housing Authority’s plan.

       The district court granted summary judgment in favor of the defendants on one
count and held a bench trial to address the other counts. Following the bench trial,
the district court returned a mixed verdict, ruling in favor of the plaintiffs on counts
that involved the separate, Clinton Peabody housing complex, but ruling in favor of
the defendants on counts related to the Darst-Webbe complex. The defendants did
not appeal the adverse rulings regarding the Clinton Peabody housing complex.

       In the prior appeal, Darst-Webbe I, the plaintiffs appealed the summary
judgment ruling and eight of the counts related to Darst-Webbe. We affirmed the
district court’s grant of summary judgment in favor of the defendants. We also
affirmed the district court’s trial judgment in favor of the defendants on two of the
eight appealed counts. On the remaining six counts, we remanded for further findings
of fact and law.

      The first three remanded counts were original Counts I-III against the Housing
Authority. In these counts, the plaintiffs alleged disparate impact discrimination
under the Fair Housing Act, 42 U.S.C. § 3604(a) & (b) (“FHA”) based on race, sex,
and familial status, respectively. No parties sought to augment the record on remand,
and the district court considered no new evidence. The district court applied the

                                          -4-
burden shifting analysis for FHA disparate impact claims, found that the plaintiffs
had failed to demonstrate a disparate impact upon a protected class, and found in the
alternative that even if the plaintiffs had demonstrated a disparate impact, the
Housing Authority had met its burden to prove that any disparate impact was
justifiable as necessary to achieve legitimate policy objectives. See, e.g., Oti Kaga,
Inc. v. South Dakota Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003)
(applying a burden-shifting analysis to an FHA disparate impact claim and finding
a public housing fund allocation decision “justifiable on the ground it is necessary to
[the defendant’s] exercise of its funding responsibilities.”). The district court found
in the further alternative that the plaintiffs had failed to offer an alternative policy that
could meet the many and varied policy goals set out for the HOPE VI program and
revitalization of the Near South Side without discriminatory effects. See, e.g., id. at
883 (noting that a plaintiff “may nonetheless prevail by showing another policy
would accomplish [the proffered policy] objectives without the discriminatory
effects”); Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 936
(2d Cir. 1988) (stating that if defendants set out a legitimate, non-discriminatory
justification, the burden shifts back to plaintiffs to show alternative means to achieve
the legitimate goals with a less discriminatory effect).

       The second three remanded counts were original Counts XIII, XVII, and XVIII
against HUD. In these counts, the plaintiffs alleged that HUD did not adequately
consider the impact of the Housing Authority’s revitalization plan on protected
classes. The plaintiffs also alleged that the revitalization plan discriminated against
African-Americans, women, and children and consigned displaced Darst-Webbe
family households to live in racially segregated public housing developments.3 As
a result, the plaintiffs argued, HUD violated the Administrative Procedures Act, 5
U.S.C. § 701 et seq. (“APA”) and the Fair Housing Act, 42 U.S.C. § 3608(e), by


       3
      By the time of the prior appeal, all residents of the former Darst-Webbe project
had been relocated, mostly through the use of Section 8 vouchers.

                                            -5-
failing to consider impact on protected classes and failing to satisfy HUD’s general
statutory mandate to affirmatively further fair housing.

       Count XIII focused specifically on HUD’s approval of the Section 108 loan
guarantee to the City of St. Louis as an objectionable action that failed to
affirmatively further fair housing. In Count XVII, the plaintiffs alleged that HUD
violated the APA by approving the Section 108 loan guarantee. Finally, in Count
XVIII, the plaintiffs alleged that HUD violated the APA by approving the Darst-
Webbe HOPE VI plan.

       As to these latter three Counts, the district court found against the plaintiffs.
The district court discussed the history of the specific HOPE VI plan for the Near
South Side and the relationship between the HOPE VI plan and the Section 108 loan
program to help the city improve infrastructure around the project. The district court
also discussed the HOPE VI program in general, identified many of the numerous
goals that HUD is required by statute to satisfy and noted that the plan in this case
was supported by detailed studies regarding the unique needs on the Near South Side.
Ultimately, the district court found that HUD considered the impact of the proposed
actions on protected classes and acted in an effort to affirmatively further fair
housing. Accordingly, the district court found that HUD did not abuse its broad
discretion by acting arbitrarily or capriciously when it decided to approve and fund
the projects.

II. FHA Claims Against the Housing Authority

      To establish a prima facie FHA claim under Oti Kaga, the plaintiffs must
demonstrate that the objected-to action results in, or can be predicted to result in, a
disparate impact upon protected classes compared to a relevant population. We
assume for the sake of our analysis that the plaintiffs’ statistical proof established a



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prima facie case. Accordingly, we turn our attention to the subsequent steps of the
burden shifting analysis.

       Under the second step, the Housing Authority must demonstrate that the
proposed action has a “manifest relationship” to the legitimate, non-discriminatory
policy objectives and “is justifiable on the ground it is necessary to” the attainment
of these objectives. Oti Kaga, 342 F.3d at 883. If the Housing Authority makes this
showing, the burden shifts back to the plaintiffs to show that a viable alternative
means is available to achieve those legitimate policy objectives without
discriminatory effects. Id.

       The district court’s findings under the second and third steps of the disparate
impact burden-shifting analysis are factual findings. See Chambers v. Omaha Girls
Club, Inc., 834 F.2d 697, 702 (8th Cir. 1997) (stating in the context of a disparate
impact employment discrimination claim that determinations under the burden
shifting analysis “are reviewed under the clearly erroneous standard of review applied
to factual findings”). Following a bench trial, “we review the trial court’s findings
of fact for clear error.” Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Insur.
Co., 48 F.3d 365, 369 (8th Cir. 1995); see also Fed. R. Civ. Pro. 52(a).

       The Housing Authority identified numerous legitimate policy objectives to
support its revitalization plan, some of which are expressly set forth in federal
legislation. These include the overarching statutory goals of reducing the
concentration of low-income housing and developing sustainable, mixed income
communities. See, e.g., 42 U.S.C. § 1437p(d) (implementing the goal of reducing the
concentration of low-income public housing by providing that replacement housing
is permitted on-site following the demolition of obsolete housing “if the number of
replacement public housing units is significantly fewer than the number of units
demolished”) (emphasis added); Id. at § 1437v(a)(3) (calling for “housing that will
avoid or decrease the concentration of very low-income families”). The Housing

                                         -7-
Authority also identified that the concentration of low-income housing was not
merely an abstract issue, but at Darst-Webbe, an acute problem in need of a remedy.

       Above and beyond the general statutory mandate of de-concentration, the
Housing Authority set forth more specific objectives as follows: (1) providing for the
marketability of a new mixed income community to families from a range of incomes
by providing a balanced mix of housing types; (2) providing a strong home ownership
component to ensure the presence of residents with vested, ownership-related
incentives to improve and maintain the neighborhood; (3) providing for partnership
with the City of St. Louis to provide social services to existing and new residents; (4)
providing for partnership with the Missouri Department of Family Services to provide
on-site services to eligible residents of the community; and (5) providing for
partnership with the St. Louis Agency on Training and Employment to provide
assessment and services to eligible area residents. Finally, as already noted, the
Housing Authority developed its revitalization plan to be implemented in concert
with infrastructure investments by the City of St. Louis. In general, the overall plan
was an effort, consistent with the statutory goal of deconcentration, to shift the model
of public housing in the Near South Side from that of densely clustered low income
housing to a model of economic integration, with social services available to
residents, with attendant public services restored, and without isolation of the
development from the rest of the city.

       These general and specific objectives are legitimate and facially neutral. The
plaintiffs’ contentions that these objectives are illegitimate are without merit. The
plaintiffs focus their primary efforts on proving that the proffered objectives are
pretextual and/or insufficient to justify the action taken by the Housing Authority.
We, however, find no evidence of pretext. Also, the district court did not err when
it concluded as a factual determination that the Housing Authority’s comprehensive
plan for redevelopment of the Darst-Webbe site and the surrounding area bears the



                                          -8-
requisite manifest relationship to the legitimate policy objectives. Oti Kaga, 342 F.3d
at 883.

       To achieve the objectives of creating a sustainable, mixed-income community,
it was necessary to employ a marketable housing mix so that the post-redevelopment
population would include actively employed residents to serve as role models and
homeowners with a vested interest in the upkeep of the neighborhood. Determination
of an appropriate housing mix necessarily relied upon imprecise predictive judgments
regarding the likely marketability of various housing mixes. Accordingly, there was
no one piece of evidence that stated with certainty how many low-income rental units
should have been included or what the optimal housing mix may have been. The
plaintiffs make much of this fact and urge us to find that the lack of conclusive
evidence prevents any successful showing that the specific housing mix was
“necessary” to achieve the policy objectives. As a result, the plaintiffs argue, the plan
may be amended to accommodate their request for more replacement, low-income
public housing rental units.

       We, however, do not sit as a secondary legislative body to amend or rework
funding and planning decisions based on our own, alternative predictive judgments
about the likely success of alternative proposed actions. As a result, our review under
the burden shifting analysis is not an exercise in balancing the need for low-income
housing units against the need for less-heavily subsidized units or market rate units.
In other words, our review is not to determine if one, ten, or one hundred additional,
replacement, low-income rental units should have been included in the amended plan.
Rather, our review is to ensure that “ a demonstrated disparate impact in housing be
justified by a legitimate and substantial goal of the measure in question.” Langlois
v. Abington Housing Auth., 207 F.3d 43, 51 (1st Cir. 2000). The plaintiffs ask for
more, seeking to have the court hold that the Housing Authority’s policy decisions
and predictive judgments regarding marketability can be incrementally improved.
“But to have federal judges make such policy choices is essentially to impose on them

                                          -9-
the job of making decisions that are properly made by Congress or its executive
branch delegates.” Id.

       Here, the Housing Authority relied upon an extensive housing market study
performed by a consulting firm, Zimmerman Volk and Associates, to predict a
marketable housing mix. The Housing Authority did not rely exclusively on this
study, as acknowledged by the plaintiffs, but rather, considered other sources and
incorporated a greater number of tax-credit units than recommended under the study.
The Housing Authority determined that, consistent with the general statutory mandate
to achieve a deconcentration of low-income public housing, eighty low-income rental
units mixed with a balance of market and below market for-sale and rental units
would be marketable to residents from a variety of income levels. Marketability of
the unsubsidized units and tax credit units was a critical component of the planned
neighborhood.

       The plaintiffs argue that the project could have a strong home ownership
component, enjoy the desired partnerships with city and state social service providers,
and remain marketable even if the number of replacement, low-income rental units
were increased to 200. The plaintiffs also argue that the requested, additional 120
low-income public housing units could be built off-site with HOPE VI funds by
diverting funding from certain aspects of the current Darst-Webbe revitalization plan
but leaving the actual, on-site, proposed housing mix unchanged. The plaintiffs point
to expert testimony in which various professionals opined that marketability and other
goals could be met even if HOPE VI funds were used to provide more low-income
public housing on or off-site. These experts, in turn, relied on representative housing
mixes in another St. Louis area redevelopment site as well as redevelopment sites in
other communities.

      One expert the plaintiffs relied upon was Dr. Paul Fischer, a political science
professor, who in turn relied on a literature review, a March 2000 appraisal report by

                                         -10-
a company named Design Solutions, and the original plan submitted by the Housing
Authority to HUD in 1995. Plaintiffs claim that these items of evidence demonstrate
that a housing mix with 120 additional low income units would meet the Housing
Authority’s stated objectives as effectively as the Housing Authority’s plan while
reducing the discriminatory effect. Dr. Fischer does opine that such a housing mix
would be marketable. His opinion, however, relies in part on the appraisal report, and
the appraisal report does not support his view. To the contrary, the appraisal assesses
the marketability of the housing mix contained in Phase I of the redevelopment (a
phase that included 36 of the 80 replacement public housing units) against the
backdrop of the overall plan to build eighty replacement units. Dr. Fischer draws
from the appraisal that the housing mix contained wholly within Phase I would be
marketable in the Near South Side if applied to the revitalization area as a whole.
This conclusion, however, relied on the Phase I mix when taken out of context and
viewed in isolation as a model housing mix. Taken out of context, as done by Dr.
Fischer, this evidence falls far short of demonstrating that the Housing Authority’s
plan is unjustified in light of the legitimate policy objectives.

       Also, we believe the district court properly declined to rely upon the original,
1995 redevelopment proposal as evidence that the Housing Authority could have
included a greater number of low-income rental units and maintained marketability.
Redevelopment stalled under that proposal, and HUD declared the Housing Authority
to be in default. With HUD’s assistance, the Housing Authority revised the plan and
arrived at the housing mix that the plaintiffs now challenge. While the 1995
redevelopment proposal demonstrates that, at an earlier date, the Housing Authority
believed that a different housing mix would be marketable, we do not find it
appropriate to declare the district court’s findings infirm on the basis of an abandoned
plan that was never implemented.

      Also, we do not believe that the plaintiff’s arguments related to the viability of
housing mixes at other revitalization locations demonstrate error in the Housing

                                         -11-
Authority’s plan. The plaintiffs argued that the Murphy Park neighborhood in St.
Louis and revitalization housing developments in other cities contained a
substantially higher percentage of low-income public housing rental units and
achieved marketability. As noted by the district court, these comparison
neighborhoods each carried unique circumstances given their settings, which differed
considerably from the Near South Side. A different planning body may have elected
to give these comparison sites more weight when developing a housing mix for the
Near South Side. However, the role of the court is not to balance interests or second
guess the minutia of a comprehensive redevelopment plan. Simply put, we do not
believe that these other sites’ alternative housing mixes demonstrate that the Housing
Authority in this case erred when it reached different conclusions about a marketable
housing mixes.

       Overall, our review reveals that the plaintiffs’ evidence fails to show that the
district court committed error when it found that any discriminatory impact of the
Housing Authority’s plan was justified by the need to achieve the stated objectives
Importantly, we note that even if the plaintiffs had provided sufficiently strong and
clear evidence to prove error in the district court’s determination as to necessity (i.e.,
marketability), it is not sufficient for the plaintiffs merely to prove the viability of an
alternative housing plan or housing mix. Rather, the plaintiffs must offer a viable
alternative that satisfies the Housing Authority’s legitimate policy objectives while
reducing the revitalization plan’s discriminatory impact. This the plaintiffs did not
do.

       No party offered evidence to show that a plan which diverts funds for 120
additional low-income housing units from other functions would actually result in a
different post-development concentration of protected class members. During trial,
defense counsel questioned Dr. Fischer and the following exchange took place:




                                           -12-
      Q.     You don’t have a prediction in your report as to the number of
      Clinton-Peabody and Darst-Webbe residents that would be displaced
      from the Near South Side revitalization area as a result of the [Hope VI
      plan]?
      A.     That’s correct.
      Q.     And, Professor Fischer, you did not make a prediction in your
      report as to the likely demographic characteristics as to the families that
      will occupy any newly constructed units developed as part of the [Hope
      VI plan], for instance the market rate rental units, the low-income
      housing tax credit units, the affordable home ownership and the market
      rate home ownership units, is that correct?
      A.     Explain what you mean by population mix – If you are talking
      about racially or talking about in terms of income?
      Q.     Any demographics [sic] characteristics, aside from income, any
      demographic characteristics?
      A.     Correct.

       Without evidence to demonstrate a reliable prediction as to the composition of
the post-redevelopment population, the plaintiffs cannot prove that their proposed
plan achieves a lesser impact than the plan as implemented. Further, under the clear
error standard, it is not sufficient for the plaintiffs merely to offer some evidence
regarding the alternative policy’s ability to satisfy the Housing Authority’s legitimate
policy objectives and reduce disparate impact. Rather, we must affirm unless the
plaintiffs’ evidence in this regard is so compelling that we are “left with the definite
and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). By this measure, the plaintiffs fail. The
plaintiffs have not presented evidence to demonstrate by this standard that their
proposed housing mix would allow the Housing Authority to achieve its numerous
goals with a less discriminatory impact.




                                         -13-
                             III. Claims Against HUD

       Regarding the claims against HUD, Count XIII alleges that HUD failed to
affirmatively further fair housing in violation of the general mandate in 42 U.S.C. §
3608(e). Count XVII and XVIII are claims under the APA that HUD failed to
adequately consider impact on protected class members and affirmatively further fair
housing when it approved the City’s Section 108 loan guarantee and approved the
Housing Authority’s Hope VI plan. We review HUD’s actions for compliance with
the APA and a general statutory mandate under a highly deferential standard,
reversing only if we find an abuse of HUD’s broad discretion. Norton v. Southern
Utah Wilderness Alliance, 542 U.S. 55, – , 124 S.Ct. 2373, 2381 (2004); NAACP v.
Secretary of Hous. & Urban Dev., 817 F.2d 149, 157 (1st. Cir. 1987). Our review is
deferential because it is not the role of the courts to micro-manage agency actions for
compliance with broad, general statutory mandates. In Norton, the Supreme Court
clearly articulated the problems attendant to such an invasive form of judicial review
over agency action. There the court stated:

      The principal purpose of the APA limitations we have discussed—and
      of the traditional limitations upon mandamus from which they were
      derived—is to protect agencies from undue judicial interference with
      their lawful discretion, and to avoid judicial entanglement in abstract
      policy disagreements which courts lack both expertise and information
      to resolve. If courts were empowered to enter general orders compelling
      compliance with broad statutory mandates, they would necessarily be
      empowered, as well, to determine whether compliance was
      achieved—which would mean that it would ultimately become the task
      of the supervising court, rather than the agency, to work out compliance
      with the broad statutory mandate, injecting the judge into day-to-day
      agency management.
             ...
      The prospect of pervasive oversight by federal courts over the manner
      and pace of agency compliance with such congressional directives is not
      contemplated by the APA.

Id. at 2381.

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      This case, like Norton, involves a broad, general statutory mandate, HUD’s
“duty to affirmatively further fair housing.” See 42 U.S.C. § 3608(e)(5) (providing
HUD’s duty to “administer activities relating to housing and urban development in
a manner affirmatively to further the policies of this subchapter”). Darst-Webbe I,
339 F.3d at 713. Norton makes clear that our review of HUD’s action is not a review
to determine whether HUD has, in fact achieved tangible results in the form of
furthering opportunities for fair housing. Rather, our review is to assess whether
HUD exercised its broad authority in a manner that demonstrates consideration of,
and an effort to achieve, such results. Norton, 124 S.Ct. at 2380-81.

        We instructed the district court, on remand, to determine whether HUD had
“‘assess[ed] negatively those aspects of [the] proposed course of action that would
further limit the supply of genuinely open housing and . . . assess[ed] positively those
aspects of [the] proposed course of action that would increase that supply.’” Darst-
Webbe I, 339 F.3d at 713 (quoting NAACP, 817 F.2d at 156). We also asked the
district court to explain “its conclusion that HUD appropriately considered its duty
to affirmatively further fair housing.” Id. On remand, the district court found that the
lengthy history of the revitalization efforts had created a large volume of documentary
evidence. In reviewing HUD’s action, the district court reviewed all of this evidence,
rather than merely reviewing the final documents issued by HUD regarding approval
of the loans and revitalization plans. The district court noted the unique, drawn-out
nature of the agency action below starting with the initial revitalization plan, the
Housing Authority’s default under that plan, and the collaborative effort to revise the
plan. In this evidence, the district court found a record of HUD’s consideration of the
project’s impact on protected class members.

      Plaintiffs argue that the district court should have ignored this larger body of
evidence and focused only on HUD’s failure to explicitly discuss impact upon
protected class members in the final communication of approval to the Housing
Authority and the City. We believe the district court properly found that the evidence

                                         -15-
to be considered was the evidence spanning the entire time frame for the project and
not merely HUD’s final communication of approval to the Housing Authority.
Review for compliance with a general statutory mandate—a deferential review only
for abuse of discretion—should not focus myopically only on an agency’s end
product. The plaintiffs are correct to criticize HUD’s failure to discuss the issue of
impact on protected class members. The plaintiffs also correctly note that we must
not invent justifications for the agency’s actions, but must view what the agency
actually considered. However, in the end, the issue is not whether HUD adequately
discussed the impact on protected class members in one document. The issue is
whether HUD adequately considered the impact on protected class members. We are
convinced HUD did so in a manner sufficient to satisfy the general mandate.

        The district court cited evidence that showed how HUD assessed negatively the
impact of the Housing Authority’s proposed action. For example, HUD considered
an analysis of impediments report prepared by the University of Missouri-St. Louis
Public Policy Research Centers with Community Development Block Grant funds
and support from the St. Louis City and County housing agencies. As described by
the district court, this report included information gathered from lenders, real estate
professionals, owners and renters. It also included analyses of fair housing actions
and census data. The conclusions in this report were that better information about
housing opportunities needed to be provided to minority tenants, realistic
opportunities for home ownership needed to be provided, and ancillary services were
needed to aid minority tenants in obtaining jobs to empower home ownership. As
discussed above, the revitalized plan incorporated these ancillary services to provide
truly open housing and opportunities to integrate the Darst-Webbe neighborhood and
its residents into the city. The plan as adopted was an explicit rejection of the former
model of public housing: attempts at integration and opportunities for residents rather
than publicly funded, high density, high rise apartments. In short, as found by the
district court, the record demonstrates consideration of impact and pursuit of a course
of action that, on its face, demonstrates responsiveness to the perceived impact.


                                         -16-
       Also, HUD’s initial approval of the 1995 plan demonstrates consideration of
alternative plans – in fact, consideration of elements of the plaintiffs’ desired plan.
HUD placed the Housing Authority in default when the Housing Authority failed to
move forward with that plan. It cannot reasonably be said that the Housing Authority
failed to consider alternatives when, in fact, HUD initially approved the plan offered
by the plaintiffs.

       The plaintiffs rely heavily on the testimony of one HUD employee, Jo Anne
Garrison, who did not recall reviewing specific data regarding impact on African-
Americans. The plaintiffs infer that this testimony demonstrates HUD personnel were
unaware that Darst-Webbe was overwhelming segregated and that its residents were
predominantly African-American. The position that such an inference can be made
is simply incredible as it ignores the well-documented reality of the situation that
existed at Darst-Webbe before the Housing Authority began relocating residents.
While we would hope that future actions of this type would involve a more explicit
discussion from the agency regarding impact on protected classes, we agree with the
district court in this case and find the agency satisfied the requirements of the FHA
and the APA.

      The judgment of the district court is affirmed.
                     ______________________________




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