Garreaux v. U.S.

Decision Date31 March 2008
Docket NumberNo. CIV 07-3021.,CIV 07-3021.
Citation544 F.Supp.2d 885,2008 D.S.D. 7
CourtU.S. District Court — District of South Dakota
PartiesYvonne GARREAUX, Plaintiff, v. UNITED STATES of America<SMALL><SUP>1</SUP></SMALL>, Alphonse Jackson, Secretary of U.S. Department of Housing and Urban Development, his designees and assigns, and Dirk Kempthorne, Secretary of U.S. Department of Interior, his designees and assigns, Defendants.

Robert J. Doody, Robert Doody Law Office, St. Francis, SD, for Plaintiff.

Stephanie Carlson Bengford, U.S. Attorney's Office, Sioux Falls, SD, for Defendants.


KORNMANN, District Judge.


[¶ 1] Plaintiff, Yvonne Garreaux ("Plaintiff), instituted this suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 and 1346(b), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiff brings this action against the United States of America and its agents, Alphonse Jackson, Secretary of the Department of Housing and Urban Development ("HUD"), and Dirk Kempthorne, Secretary of the Department of Interior ("DOI"). Plaintiff seeks monetary damages in excess of $250,000 pursuant to the FTCA and declaratory and injunctive relief pursuant to the APA. Plaintiff alleges two specific causes of action: (1) an FTCA claim, namely that HUD negligently created, supervised, approved and administered the plaintiffs Mutual Help Occupancy Agreement and that the Department of Interior's Bureau of Indian Affairs ("BIA") negligently drafted, created, approved and administered the underlying lease agreement on land held in trust by the BIA and leased to the Cheyenne River Housing Authority ("CHRA"); (2) an APA claim, namely that both HUD and the BIA failed to enforce their standards and perform their duties; in other words, they have acted in a manner which is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Defendant now moves to dismiss this action (Doc. 9) under Fed.R.Civ.P. 12(b)(1) for want of subject matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.


[¶ 2] On September 21, 1977, the BIA approved a renewable twenty-five year renewable lease agreement between CHRA and certain Indian heirs of land held in trust for them by the United States. This parcel of land consisted of 2.5 acres in Dewey County, South Dakota. The lease terms provided that the premises were to be used to construct a dwelling for Mable Blackbird, one of the heirs, with the financial assistance of HUD, in accordance with the United States Housing Act of 1937. When Ms. Blackbird and her successors failed to make timely payments on the dwelling, the home was turned over to CHRA to be administered as a Mutual Help Home under the auspices of the MHHO Program administered by HUD. Under the MHHO Program, Indians who are eligible and interested in buying a family home enter into a contract, called a "Mutual Help and Occupancy Agreement" ("MHOA"), 42 U.S.C. § 1437bb(e), with the relevant Indian housing authority for that area, in this case CRHA.

[¶ 3] In 1992, the plaintiff, an elderly Native American woman, allegedly entered into a MHOA with CHRA to purchase the dwelling. She allegedly took possession of the dwelling with the understanding that CHRA would make repairs to the dwelling and that if she complied with the terms of the MHOA, she would eventually be conveyed title to the dwelling. In March 2005, the necessary repairs were estimated at over $40,000, which was approximately equal to the appraised value of the home.

[¶ 4] In October 2004, the plaintiff allegedly satisfied all the terms of the MHOA, with the exception of the final payment. Either the plaintiff or CHRA initiated contact to request a meeting to arrange conveyance of title. During the process of conveying title, the Superintendent of the BIA contacted the plaintiff. The Superintendent informed the plaintiff that because HUD no longer had an interest in the leased land, the lease was terminated and she had thirty days to move her house and leave the land. Shortly thereafter, CHRA contacted the BIA to inform them that they still had a financial interest in the land because the final payment had not been made and because outstanding repairs to the dwelling had not been completed. The BIA agreed that the lease could remain in effect until such time as CHRA ceased to maintain an interest or until an agreement was reached between the parties concerning the repairs.

[¶ 5] Between March 2005 and May 2006, CHRA and the plaintiff attempted to resolve their differences. CHRA offered to provide the plaintiff a replacement home, with the purchase price being offset by a credit for the value of her current home plus the amount of the outstanding repairs. This offer was unacceptable to the plaintiff due to replacement home's location and due to the fact that the purchase price for the replacement home exceeded the credit being offered. Unable to resolve their differences, on January 31, 2006, the plaintiff filed an administrative compliant under the FTCA. In her administrative complaint, the plaintiff alleged that HUD and the BIA negligently administered the MHOA and the lease agreement and were also negligent in their trust responsibility to an American Indian person.

[¶ 6] Prior to the resolution of her administrative complaint, on July, 5, 2006, the plaintiff filed a complaint in the U.S. Court of Federal Claims ("COFC"). In that complaint, the plaintiff alleged that the government committed a breach of contract and a wrong under Article I of the 1868 Fort Laramie Treaty by the following acts: (1) breaching the MHOA; (2) failing to properly administer the MHOA; (3) failing to provide safe, sanitary and healthy living conditions as mandated by the Indian Housing Act; and (4) negligence in administration and breach of the MHOA. On November 29, 2006, the BIA and HUD denied the plaintiffs administrative claims on the basis that the plaintiff chose to file a lawsuit in the COFC concerning the same matter. 28 U.S.C. § 2675(a). On July 27, 2007, the COFC dismissed the plaintiffs complaint holding that (1) HUD did not have privity with the plaintiff; and (2) the plaintiffs breach of contract claims and negligence claims did not fall with the purview of the "bad men" provision of the Fort Laramie Treaty, so as to create subject matter jurisdiction. Garreaux v. United States, 77 Fed.Cl. 726 (Fed.Cl.2007). Finally, on May 22, 2007, plaintiff initiated this suit, claiming violations of the FTCA and the APA.


[¶ 7] "Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. United States, 4 F.3d 643, 646 (8th Cir.1993) (citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501, reh'g denied 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986), (citing in turn Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803))). "The threshold inquiry in every federal case is whether the court has jurisdiction" and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir.1964), and Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987).

[¶ 8] A motion to dismiss for lack of subject matter jurisdiction challenges the court's power to hear the case. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). Jurisdictional issues are for the court to decide and the court has broad power to decide its own right to hear a case. Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Because jurisdiction is a threshold question, judicial economy demands that the issue be decided at the onset. Osborne, at 729.

[¶ 9] Where, as here, the defendants move for dismissal under Rule 12(b)(1), Fed.R.Civ.P., as well as on other grounds, "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." 5B C. Wright and A. Miller, Federal Practice and Procedure, § 1350, p. 548 (1969). cf., Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).

[¶ 10] "The district court has the authority to consider matters outside the pleadings on a motion challenging subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir.1993). See also Osborn, 918 F.2d at 729, fn. 4 (citing Land v. Dollar, 330 U.S. 731, 735 & fn. 4, 67 S.Ct. 1009 1011 & fn. 4, 91 L.Ed. 1209 (1947), and Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir.1980)). Such consideration does not convert a motion to dismiss into a motion for summary judgment. Denser v. Vecera, 139 F.3d 1190, 1191 fn. 3 (8th Cir.1998), and Drevlow, 991 F.2d at 470. Plaintiff has the burden of establishing that jurisdiction exists. It is not the responsibility of defendants to prove otherwise. Titus, 4 F.3d at 593 fn. 1.

[¶ 11] The Eighth Circuit, in Osborn, delineated the standard of review for motions to dismiss under Fed.R.Civ.P. 12(b)(1):

[H]ere ...

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