Federal Court Rejects HUD Restitution Motion in Ongoing Disputes with Tribal Housing Authorities

Here are the materials in the consolidated matters captioned Tlingit-Haida Regional Housing Authority v. United States Department of Housing and Urban Development (D. Colo.):

115 HUD Motion for Restitution

120 Housing Authority Opposition

122 Reply

124 DCT Order

An excerpt:

When asked at the hearing why the payments of the judgments were made during the appeal process, counsel for HUD said, “I think they thought it was, you know, the equitable thing to do.” He was right. The equitable thing for the Court to do now is to deny the motion for restitution.

Prior posts here.

Federal Court Rules against Intertribal NAHASDA Claims

Here are the updated materials in Lummi Tribe v. United States (Fed. Cl.):

44 Second Amended Complaint

45 US Motion to Dismiss

48 Lummi Response

50 US Reply

57 DCT Order Denying Motion to Dismiss

76 Lummi Motion for Partial Summary J

83 US Cross-Motion

88 Lummi Reply

95 DCT Order Granting US Motion

An excerpt:

This case arises under the Native American Housing Assistance and Self Determination Act of 1996 (“NAHASDA” or “the statute”), as amended, 25 U.S.C. §§ 4101–4212 (2006). Plaintiffs sue here to recover grant funds initially paid to them under the statute but later recaptured by the Department of Housing and Urban Development (“HUD” or “the agency”) when HUD determined that the allocation formula on which the grants had been based had been misapplied. This action is currently before the court on the parties cross-motions for partial summary judgment. By direction of the court, the parties have fully briefed only those arguments addressing the issue of whether 25 U.S.C. § 4152(b)(1), as originally enacted, prohibited HUD from excluding the housing units referenced in the statute from the allocation formula, rendering 24 C.F.R. § 1000.318’s removal of such units contrary to the statute and therefore invalid.

The court heard oral argument on July 30, 2013. For the reasons set forth below, plaintiffs’ motion for partial summary judgment as it relates to the alleged invalidity of 24 C.F.R. § 1000.318 is denied and defendant’s cross-motion is granted.

Prior post on this matter here.

HUD Must Provide Hearing Prior to Recapturing NAHASDA Funds in Allocation Formula Dispute

Here are the materials in Lummi Tribe v. United States (Fed. Cl.):

DCT Order Denying US Motion to Dismiss Count 2

HUD Motion to Dismiss

Lummi Response

HUD Reply

An excerpt:

In conclusion, we read Section 405 as governing HUD’s actions and thus as precluding HUD from exercising any common law right the agency might otherwise possess under circumstances not directly addressed by the statute. We further read that section as applying only in cases that do not involve a grant recipient’s substantial noncompliance with NAHASDA (which would fall instead under Section 401). In addition, we construe Section 405’s implementing regulations as requiring the Secretary to provide notice and the opportunity for a hearing before making an adjustment to a recipient’s grant amounts and as preventing the Secretary from recapturing grant amounts already expended on affordable housing activities. To conclude otherwise would allow HUD to deny grant recipients the protections Congress has afforded them when faced with a reduction in their grant funding, would further allow the agency to circumvent a process put into place by consensus rulemaking at the direction of Congress, and would lead to the anomalous result that a grant recipient in substantial noncompliance with NAHASDA would receive greater procedural protections before experiencing a recapture of their grant funds than recipients in full compliance (a target for recapture through a fault of HUD’s rather than their own). We are unwilling to endorse such an unsatisfactory result.

Intertribal NAHASDA Claims Proceed in Court of Federal Claims

Here are the materials in Lummi Tribe v. United States (Fed. Cl.):

DCT Order Denying Motion to Dismiss (mostly)

Government Motion to Dismiss

Lummi et al Response

Government Reply

An excerpt describing the claims:

This action is one of a dozen or more law suits currently pending before both this court and the United States District Court for the District of Colorado brought by various Indian tribes and tribal housing authorities to challenge actions by the United States Department of Housing and Urban Development (“HUD”) in calculating and seeking the repayment of grant funds paid to the tribes pursuant to the Native American Housing Assistance and Self-Determination Act of 1996 (“NAHASDA”), as amended, 25 U.S.C. §§ 4101-4212 (2006). In particular, plaintiffs in this case contend that HUD improperly determined that certain of plaintiffs’ housing units could not be included in their grant calculations, thereby depriving plaintiffs of funding to which they allegedly were entitled both under the payment mandates of NAHASDA and under their annual funding agreements.