Blake v. Cisneros, Civ. A. No. G-92-455.

• Decision Date: 19 November 1993
• Docket Number: Civ. A. No. G-92-455.
• Citation: 837 F. Supp. 834
• Parties: Johnnie L. BLAKE v. Henry CISNEROS, Secretary of the United States Department of Housing and Urban Development.
• Court: U.S. District Court — Southern District of Texas

837 F. Supp. 834

Johnnie L. BLAKE v. Henry CISNEROS, Secretary of the United States Department of Housing and Urban Development.

Civ. A. No. G-92-455.

United States District Court, S.D. Texas, Galveston Division.

November 19, 1993.

Kenneth Charles Kaye, League City, TX, for plaintiff.

Eleanor A. Robinson-Gaither, U.S. Attorney's Office, Houston, TX, for defendants.

ORDER GRANTING SUMMARY JUDGMENT

KENT, District Judge.

Plaintiff Johnnie L. Blake commenced this action by filing a document styled "Petition for Review of Administrative Order," wherein Mr. Blake asked this Court to set aside orders of the United States Department of Housing and Urban Development (HUD) Board of Contract Appeals (BCA) authorizing HUD to refer a debt of Blake's to the Internal Revenue Service for offset against any tax refund which may otherwise have been owed to Blake. Before the Court is Blake's Motion for Summary Judgment, HUD's Motion to Dismiss, and HUD's Motion for Summary Judgment. Mr. Blake's motion is DENIED, HUD's motion to dismiss is DENIED, and HUD's motion for summary judgment is GRANTED.

I. Background

The subject dispute concerns a promissory note in the original principal sum of $12,000.00, purportedly executed by the Plaintiff Johnnie Blake and his former wife, Rebecca Lynn Blake, in favor of Amoco Employees Federal Credit Union (Credit Union). After making this note, Johnnie and Rebecca divorced in 1983. The Texas Divorce Court awarded Rebecca the real property which secured this note, and ordered her to pay the balance and interest on the note and to indemnify Johnnie for any failure to so discharge this debt. The Divorce Court also ordered Rebecca to pay certain other debts to the Credit Union.

Rebecca failed to pay these debts. In 1984, Johnnie filed a "Motion for Enforcement and Clarify Judgment" with the Divorce Court, and served the Credit Union as a party. The Credit Union answered with the undeniably correct assertion that the Divorce Court had no jurisdiction to disturb the Credit Union's rights with regards to the debts of Johnnie and Rebecca. In its subsequent "Order of Enforcement and Clarifying Judgment," the Divorce Court reiterated that Rebecca owed the remainder of certain notes, and that Rebecca was to indemnify Johnnie for any failure to pay these. However, nowhere does this Order of Enforcement refer to the $12,000.00 note at issue in the case at bar, and nowhere does this Order purport to affect the rights of the Credit Union in any way.

HUD had insured the $12,000.00 note against nonpayment pursuant to Title I of the National Housing Act, 12 U.S.C. § 1703. In 1988, after Rebecca continued to fail to make payments on the note, the Credit Union assigned the note by endorsement to the United States of America, on whose behalf the Defendant herein currently holds the note. The note remains in default, and the current unpaid principal and interest amount to a little over $10,000.00.

Pursuant to the Deficit Reduction Act of 1984, 31 U.S.C. § 3720A, HUD referred this debt to the Secretary of the Treasury for offset against any refund which may have been due to Johnnie Blake on his Federal Income Tax Return. Johnnie objected to this action on the basis that the Divorce Court's "Order of Enforcement" made this debt legally unenforceable against him. On December 23, 1991, the HUD BCA overruled this objection. Johnnie appeals that decision to this Court.

II. Jurisdiction

Mr. Blake's Petition does not comply with Federal Rule of Civil Procedure 8(a)(1), which requires any pleading which asks for relief to include a short and plain statement of the grounds upon which the court's jurisdiction depends. Even in response to HUD's motion to dismiss on this basis, Blake has cavalierly refused to point to any statute under which this Court may exercise jurisdiction over this claim.

Ordinarily, such intransigence would alone compel this Court to dismiss the action. See Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1214 (1969). However, the Court also acknowledges that, when the United States is a party, the pleading burden of Rule 8(a)(1) "occasionally proves difficult to discharge." Id. at § 1212. The procedural history of this case underscores this concern. Mr. Blake originally filed this review action in the Court of Appeals for the Federal Circuit, on the theory that jurisdiction there was proper under 28 U.S.C. § 1295(a)(10) as review of agency action under the Contracts Disputes Act, 41 U.S.C. § 601 et seq. The Federal Circuit dismissed that claim, holding that the subject contract is not within the purview of the Contracts Dispute Act and, therefore, jurisdiction over this action "lies, if anywhere, in federal district court." Blake v. Kemp, 979 F.2d 215 (Fed.Cir.1992). That Court also denied Mr. Blake's subsequent motion to transfer the case to a district court because Blake did not demonstrate the necessity for such action. "Indeed, Blake has not shown that the district court would have jurisdiction over this case." Blake v. Kemp, No. 92-1339 (Fed.Cir. Nov. 23, 1992), cert. denied, 123 L.Ed.2d 467 (1993).¹

Despite Mr. Blake's apparent attitude that research of potential jurisdictional bases is not worthy of his effort, this Court will nonetheless exercise subject matter jurisdiction over his claims in order to afford some sense of finality to this seemingly endless litigation over a simple promissory note.² While a specific jurisdictional grant for this review cannot be found in the statutes, the power to make the dispositions made herein is granted under one or more of the following jurisdictional statutes: 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (Tucker Act), and 28 U.S.C. § 1361 (mandamus). It would also appear that every Court which has published an opinion on review of agency referrals under 31 U.S.C. § 3720A has either explicitly found or implicitly assumed that the Federal District Court had original jurisdiction over such review. See, e.g., Grider v. Cavazos, 911 F.2d 1158 (5th Cir.1990); Hurst v. United States Dep't of Education, 901 F.2d 836 (10th Cir.1990); Jones v. Cavazos, 889 F.2d 1043 (11th Cir. 1989); Thomas v. Bennett, 856 F.2d 1165 (8th Cir.1988) (holding that 26 U.S.C. § 6402(e) does not bar jurisdiction over claim against Secretary of Education for review of 31 U.S.C. § 3720A referral); Gerrard v. U.S. Office of Education, 656 F.Supp. 570, 572-73 (N.D.Cal.1987) (finding jurisdiction under the Tucker Act); see also Richardson v. Baker, 663 F.Supp. 651 (S.D.N.Y.1987) (simply listing six possible bases for subject matter jurisdiction).

HUD also asks for dismissal for Blake's failure to plead a waiver of sovereign immunity, another prerequisite to subject matter jurisdiction. Again, while this Court is loathe to forgive this defect, it is nonetheless clear that the United States has waived sovereign immunity for this type of action through the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Sheehan v. Army & Air Force Exchange Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev'd on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982). This Act explicitly grants the right of judicial review of agency actions, and directs that such a claim "shall not be dismissed nor relief therein be denied on the ground that it is against the United States." 5 U.S.C. § 702. A cause of action for review of agency action is available unless a showing is made of a "clear and convincing" contrary legislative intent to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). HUD has made no such showing.

III. Standing/Ripeness

On November 2, 1992, after the commencement of this action, HUD BCA dismissed the proceedings underlying this review on the motion of Defendant. On this basis Defendant argues that the case is not ripe, and that Blake is without standing because no case or controversy exists which this Court can resolve, as required by Article III of the United States Constitution.

This argument is without merit. The BCA dismissed the action without prejudice to HUD's right to refer the debt to the IRS in the future. Article III only requires that the party invoking the Court's authority "show that he personally has suffered some actual or threatened injury as a result of the putative illegal conduct of the defendant, and that the injury ... is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United For Sep. of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted) (emphasis added). It is undisputed that Mr. Blake faces a threatened injury: HUD holds a note purportedly signed by Mr. Blake, on which HUD has indicated a clear intention to collect. Furthermore, its appears from HUD's pleadings that this is not the first instance in which HUD has begun the referral process and then dismissed the action, leading this Court to conclude that the threat of future injury is not hypothetical, but both "real and immediate." See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); American-Arab Anti-Discrim. Comm. v. Thornburgh, 970 F.2d 501, 506-08 (9th Cir.1991) (finding standing where government had dropped underlying charges for tactical reasons). A favorable decision by this Court would resolve the conflict at issue because, if this Court were to declare the debt not legally enforceable, future proceedings by HUD would be barred. Conversely, if Mr. Blake's claims were valid, dismissal of this action would permit the Secretary to nonetheless continuously repeat the wasteful course which HUD has taken in this case³ while effectively evading judicial review. See Thomas, 856 F.2d at 1168 & n. 3 (review of federal loan debt...