Federal Circuit Revives Portions of Lummi/Hopi/Fort Berthold Housing Authorities NAHASDA Claims

Here is the opinion in Lummi Tribe v. United States (Fed. Cir.). An excerpt:

[W]e conclude that because neither the Claims Court nor this court previously adjudicated Lummi’s breach of contract, breach of fiduciary duty, and breach of trust claims, the Claims Court erred by dismissing Lummi’s entire case.


Opening Brief

US Answer Brief


Prior posts here.

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.

Lummi Tribe v. United States Cert Petition [HUD Funding]

Here is the petition:

Cert Petition

Questions presented:

Does 28 U.S.C. § 1491 grant the court of federal claims jurisdiction over an action to recover grant-in-aid funds unlawfully recouped by the United States or is the action one for specific relief which must be brought under the Administrative Procedure Act, 5 U.S.C. § 702?
Does the court of federal claims have jurisdiction to enter a judgment on an illegal exaction claim when the United States had previously awarded money to a recipient under a grant-in-aid statute and then unlawfully recouped the funds?
Where a grant-in-aid statute mandates that the United States pay grant funds to a plaintiff, does the court of federal claims have jurisdiction to enter a money judgment for the failure to pay the grant funds even if there are conditions on the use of the grant funds after they are awarded?

Lower court materials here.


us cert opp


Split Tenth Circuit Panel Rules HUD Illegally Recaptured NAHASDA Funds but Tribes Cannot Recover

Here is the opinion in the consolidated appeal captioned Modoc Lassen Indian Housing Authority v. United States Department of Housing and Urban Development.

An excerpt from the lead opinion:

These consolidated appeals arise from a government agency’s decision to recapture, via administrative offset, funds that the agency allegedly overpaid to multiple grant recipients. The grant recipients brought suit in federal court, arguing in relevant part that the agency lacked authority to recapture the funds without first providing them with administrative hearings. The district court agreed and ordered the agency to repay the grant recipients. The agency now appeals that order.

If these underlying facts sound relatively straightforward, it’s because they are. But they nevertheless give rise to three legal questions that are decidedly less so: (1) did the agency recapture the funds pursuant to a statute or regulation that imposed a hearing requirement, thus rendering the recaptures illegal; (2) if the agency didn’t recapture the funds pursuant to such a statute or regulation, did it have authority to recapture the alleged overpayments at all; and (3) if not, must the agency reimburse the grant recipients for the amounts it illegally collected?

In answering the first of these three questions, the panel unanimously agrees that the agency didn’t recapture the funds pursuant to a statute or regulation that imposes a hearing requirement. Thus, we agree that the district court erred in ruling that the recipients were entitled to hearings before the agency could recapture the alleged overpayments.

But that’s where our unanimous agreement ends; the remaining questions divide the panel. Ultimately, two members of the panel agree that the agency lacked authority to recapture the funds via administrative offset. Accordingly, we affirm the portion of the district court’s order that characterizes the recaptures as illegal. Nevertheless, two other members of the panel agree that if the agency no longer has the recaptured funds in its possession, then the district court lacked authority to order the agency to repay the recipients. Thus, we reverse that portion of the district court’s order and remand for further factual findings.


HUD Brief

Tribes Brief

HUD Reply

Federal Court Decides Walker River Paiute NAHASDA Funding Allocation Challenge

Here are the materials in Walker River Paiute Tribe v. HUD (D. Nev.):

18 Walker River Paiute Motion for Summary J

21 HUD Response & Cross Motion

27 Walker River Paiute Reply

31 HUD Reply

40 HUD Supplemental Brief

41 Walker River Paiute Supplemental Brief

45 DCT Order

Tlingit-Haida Regional Housing Authority v. HUD

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

74 DCT Order on Liability

85 DCT Order on Damages

An excerpt:

On March 4, 2008, Plaintiff Tlingit–Haida Regional Housing Authority (“Tlingit–Haida” or “the Tribe”) filed this action for judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., claiming that the Defendants (collectively “HUD”) violated the Native American Housing Assistance and Self–Determination Act of 1996 (“NAHASDA”), 25 U.S.C. § 4101 et seq., by reducing the number housing units counted as Formula Current Assisted Stock (“FCAS”) for the calculation of the Tribe’s share of the annual Indian Housing Block Grant (“IHBG”) and recapturing IHBG funds which the Tribe had received in past years for those units. Tlingit–Haida filed an amended complaint for declaratory and injunctive relief on June 17, 2010, requesting various and alternative forms of relief, including the disgorgement of recaptured funds.


FURTHER ORDERED that final judgment shall enter requiring the Defendants to restore to Plaintiff Tlingit–Haida Regional Housing Authority the amount of $1,139,658, for Indian Housing Block Grant funds that were illegally recaptured from the Plaintiff for fiscal years 1998 through 2002. Any such restoration shall be in addition to the full IHBG allocation that would otherwise be due to the Plaintiff under the Native American Housing Assistance and Self–Determination Act (“NAHASDA”) in a given fiscal year as calculated without application of the amount of the Judgment; it is

FURTHER ORDERED that Defendants shall make restoration of the IHBG funds from all available sources, including, but not limited to the funds set aside for Plaintiff’s benefit by stipulation of the parties on March 6, 2008 and ordered by this court in an Order entered on March 18, 2008 in the amount of $1,499,887[.]

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.

Absentee Shawnee/Okla. Seminole Challenge to HUD Funding Allocation Regulation Fails

Here are the materials in Absentee Shawnee Housing Authority v. HUD (W.D. Okla.):

DCT Order Rejecting Challenge to HUD Decision

Plaintiffs’ Brief

HUD Response

Plaintiffs’ Reply