Yakama Nation Hous. Auth. v. United States, Case No. 08-839C
| Decision Date | 05 December 2011 |
| Docket Number | Case No. 08-839C |
| Parties | YAKAMA NATION HOUSING AUTHORITY, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | Court of Federal Claims |
FOR PUBLICATION
Lummi Tribe v. United States, 99
Fed. Cl. 584 (2011); Anti-Deficiency
Act; 28 U.S.C. § 1500; NAHASDA;
Reauthorization Act of 2008, Pub. L.
No. 110-411, 122 Stat. 4319 Trusts;
Fiduciary Duties; Money-Mandating
Statute
Craig H. Kaufman, Quarles & Brady, LLP, Tucson, AZ, for Plaintiff.
Michael N. O'Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Donald E. Kinner, Assistant Director, Department of Justice, Washington, DC, for Defendant.
Before the Court is Defendant's Motion to Dismiss requesting that the Court dismiss Plaintiff Yakama Nation Housing Authority's ("YNHA") complaint for lack of subject matter jurisdiction or for failure to state a claim upon which relief may be granted pursuant to Rules 12(b)(1) and (6) of the Rules of the United States Court of Federal Claims.
In its complaint, YNHA alleges that it received annual housing grants, referred to as Indian Housing Block Grants ("IHBGs"), from the Department of Housing and Urban Development ("HUD") in each fiscal year from 1998 to 2010 through the grant allocation formula in the Native American Housing and Self-Determination Act ("NAHASDA"), 25 U.S.C.§ 4101 et seq. YNHA contends that HUD improperly reduced YNHA's annual grants in each of those years and seeks to account for and recover those grant funds which YNHA contends the Government both unlawfully withheld as well as attempted to recapture.
After full briefing, oral argument and careful consideration the Court hereby GRANTS IN PART AND DENIES IN PART Defendant's Motion to Dismiss for the reasons set forth below.
In order "to consolidate the low income housing assistance and to simplify the distribution of funds" Fort Peck Housing Auth. v. HUD, 367 Fed. Appx. 884, 885 (10th Cir. 2010), cert denied 131 S. Ct. 347 (2010) ("Fort Peck II"), Congress enacted the Native American Housing and Self-Determination Act ("NAHSDA"). Pub. L. 104-330, § 107, Stat. 4016 (1996). Taking effect after September 30, 1997, this law terminated previous Indian housing assistance under the 1937 Housing Act. 42 U.S.C. 1437 et seq. (1994). Unlike its predecessor, NAHSDA allocated annual block grants of funds to Indian tribes, determined by a distribution formula. Fort Peck II, 367 Fed. Appx. at 885 (citing 25 U.S.C. §§ 4151, 4152, 4116). If all the funds were not disbursed in the year, the appropriated funds were to be included into the next year's funding for distribution.
Congress established the formula by which the appropriated funds would be distributed. 25 U.S.C. § 4152(a). The formula is based upon factors reflecting need including: (1) The number of low-income housing dwelling units owned . . . ; (2) The extent of poverty and economic distress and the number of Indian families within Indian areas of the tribe; and (3) Other objectively measurable conditions as the Secretary and the Indian tribes may specify. Fort Peck II, 367 Fed. Appx. at 885-86 (citing 25 U.S.C. 4152(b)). Thereafter, a committee composed of 48 representatives of Indian tribes and 10 HUD representatives developed the regulations implementing NAHASDA.1 The allocation formula agreed upon has two components: (1) Formula Current Assisted Stock ("FCAS") and (2) need. Fort Peck II, 367 Fed. Appx. at 886 (citing 24 C.F.R. § 1000.310).
The FCAS component is based upon a tribe's inventory of rental units and lease-to-own units (referred to as "Mutual Help" and "Turnkey III" units) as of the date the Act became effective. The need component of the allocation formula is based upon seven criteria, including information derived from census data, such as the number of households in a tribe's population with income below a median income level, and the number of households living without kitchens and plumbing. Fort Peck II, 367 Fed. Appx. at 886. Each year, the funds appropriated are allocated by first calculating the FCAS component and then dividing the remaining funds under the need component; thus, a greater number of FCAS units reduce the amount available for the need component.
The FCAS component of the formula is the main focus of the present Complaint and the interpretation of the regulation that identifies when the lease-to-own units are no longer to be counted. See 24 C.F.R. § 1000.316. Whether a lease-to-own unit will no longer be counted for purposes of the allocation formula is significant because, as stated above, the FCAS component is calculated first. Therefore, if the lease-to-own unit is removed from the FCAS count, the tribe will receive a smaller FCAS-based portion of its housing grant from HUD and the overall housing grant it receives (including both the FCAS and "need" components) may, consequently, also be smaller. As the lease-to-own units are conveyed to Indian families as intended by the Mutual Help and Turnkey III programs, the units are no longer counted in FCAS. Thus, the funding previously used for funding FCAS becomes available for distribution under the need component. 24 C.F.R. §1000.324.
On October 14, 2008, Congress amended NAHASDA by enacting the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008, Pub. L. No. 110-411, 122 Stat. 4319 (the "Reauthorization Act"). The amendment essentially adopted the provisions in HUD's regulation at 24 C.F.R. § 1000.318 providing for units to become ineligible for inclusion in FCAS when the tribes no longer own, or should no longer own, the units.
In addition, the Reauthorization Act specified that in order to file a successful claim regarding the formula for current assisted stock calculation or count involving an Indian housing block allocation for any fiscal year through fiscal year 2008, the action relating to such had to be filed no later than 45 days after the date of the Reauthorization Act (October 14, 2008). Reauthorization Act, § 301(2); 25 U.S.C. § 4152(b)(1)(E). Thus, this provision required that any Indian tribe wishing to pursue a claim based upon the previous version of the statute and 24 C.F.R. § 1000.318 needed to file suit by November 28, 2008. Plaintiff filed this action before that deadline.
In 2001, HUD's Office of Inspector General ("OIG") performed a nationwide audit of the NAHASDA program. The OIG conducted site visits and the audit report concluded that IHBG funds had not been properly allocated in previous years because they were based on housing units that do not qualify as FCAS. HUD thereafter began seeking recovery of amounts it had paid for ineligible units.
In 2005, HUD relied upon the 1998 regulation, 24 C.F.R. § 1000.318, in its determination that it overpaid Forth Peck Housing Authority (Fort Peck) for dwelling units it no longer owned. Fort Peck partially repaid HUD, but then filed suit in the United States District Court for the District of Colorado stating that 24 C.F.R. § 1000.318 was invalid. The court agreed, holding that § 1000.318 conflicted with 25 U.S.C. § 4152(b)(1), which mandated that HUD include "low-income housing dwelling units owned or operated at the time pursuant to a contractbetween an Indian housing authority for the tribe and the Secretary." Fort Peck Housing Auth. v. HUD, 435 F. Supp. 2d 1125, 1132 (2006) ("Fort Peck I"). Before the case was heard on appeal, Congress passed the Reauthorization Act of 2008, which adopted the provisions of 24 C.F.R. § 1000.318. On appeal in 2010, the Tenth Circuit found that § 1000.318 complied with NAHASDA in accordance with the 2008 amendment and reversed its invalidation. Fort Peck II, 367 Fed. Appx. 884 (10th Cir. 2010).
On January 4, 2005, YNHA filed a petition for review with the United States Court of Appeals for the Ninth Circuit. YNHA appealed a November 4, 2004, letter from HUD to YNHA informing YNHA that it had received net Indian Housing Block Grant over-funding of $469,549, in fiscal years 1998 to 2004. YNHA was to contact HUD within 30 days to discuss repayment options that could include reducing previous or a future year's funding. YNHA's petition asserted jurisdiction under 25 U.S.C. § 4161(a), which provides jurisdiction over a petition filed within 60 days of the receipt of "notice under [25 U.S.C. § 4161(a)] of the termination, reduction, or limitation of payments under this chapter." On December 7, 2010, the Ninth Circuit dismissed the petition for lack of jurisdiction.
On November 24, 2008, YNHA filed its complaint in this Court. In its complaint, YNHA claimed the Government owed YNHA money improperly withheld by HUD for the fiscal years 1998 through 2008. The following day, November 25, 2008, YNHA filed a substantially similar claim in the District Court for the District of Colorado. This Court must determine whether it has jurisdiction pursuant to 28 U.S.C. § 1500 to hear YNHA's claim. If so, this Court must determine which, if any, of YNHA's claims are time-barred under § 2501 and whether those remaining claims not time-barred are brought under a money-mandating statute.
Defendant raises various arguments with respect to the reasons that the current case must be dismissed. The Court will address each argument below.
The first question to be asked in any case is whether the court has jurisdiction to hear the case. In this case, Defendant claims that this Court lacks jurisdiction because of two other filings. In 2005, YNHA filed a petition for review in the Ninth Circuit, which remained pending until it was dismissed in December 2010. Defendant asserts that because the petition for review was...
To continue reading
Request your trial