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.

Briefs:

HUD Brief

Tribes Brief

HUD Reply

Tenth Circuit Briefs in Modoc Lassen Indian Housing Authority v. HUD

Here:

HUD Brief

Appellee Brief

Lower court materials in Navajo Nation v. HUD are here.

Lower court materials on Tlingit-Haida Regional Housing Authority v. HUD are here.

Lower court materials in Modoc Lassen Indian Housing Authority v. HUD are here.

Lower court materials in Nambé Pueblo Housing Authority v. HUD are here.

Federal Court Dismisses Title VI Claim against Chickasaw Housing

Here are the materials in Sanders v. Anoatubby (W.D. Okla.):

11 Motion to Dismiss

14 Response

16 Reply

19 DCT Order

An excerpt:

Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual allegations are true and construing them in the light most favorable to plaintiff, the Court finds that this Court lacks subject matter jurisdiction to hear plaintiff’s claims alleged in her Complaint. The Court specifically finds that jurisdiction is not vested in this Court based on plaintiff’s claim that defendants violated Title VI by not complying with the NAHASDA since the NAHASDA specifically exempts federally recognized tribes, such as the Chickasaw Nation and the tribally designated housing entities of those tribes such as the Chickasaw Nation Housing Administration, from Title VI. Further, the Court finds jurisdiction is not vested in this Court based on the Ex parte Young doctrine. Plaintiff specifically included defendants’ official titles in the caption of this lawsuit and alleges that defendants violated tribal policies. Other than conclusory statements that defendants were acting outside the scope of their official tribal capacity, plaintiff has failed to allege facts to support her claim that defendants were acting outside the scope of their tribal capacity or violating federal law. Therefore, the Court finds plaintiff’s Complaint against defendants Governor Bill Anoatubby, Wayne Scribner, Renee Sweet, Jackie Williams, and Terry Davis should be dismissed.

Modoc Lassen IHA Wins Back $ 140,000 from HUD

Here are the materials in Modoc Lassen Indian Housing Authority v. United States Department of Housing and Urban Development (D. Colo.):

61 DCT Order on Liability

69 DCT Order on Damages

 

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.

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

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.