Estate of DaMon R. Fisher v. City of Annapolis

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

TAMARA JOHNSON, et al.,

Plaintiffs

v. Civil Action No. CCB-21-1120

CITY OF ANNAPOLIS, Cross-Docketed in Related Case: Fisher v. City of

Defendant and Third-Party Plaintiff Annapolis et al., Civ. No. CCB-21-1074

v.

HOUSING AUTHORITY OF THE CITY OF

ANNAPOLIS and U.S. DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT,

Third-Party Defendants.

MEMORANDUM

This civil rights case involves a class of Annapolis public housing residents who claim the

City of Annapolis’s non-inspection policy discriminates against African Americans. After the

court denied the City’s motion to dismiss, the City answered the complaint. See ECF 19, Mem.

Denying City Mot. Dismiss; ECF 20, Order Denying City Mot. Dismiss, ECF 25, City’s Answer.

Along with answering the plaintiffs’ complaint, the City filed two third-party complaints, one

against the Housing Authority of the City of Annapolis (“HACA”), ECF 26, City v. HACA Third-

Party Compl., and the other against the U.S. Department of Housing and Urban Development

(“HUD”), ECF 28, City v. HUD Third-Party Compl.1

1 The City also named as a third-party defendant Marcia L. Fudge in her official capacity as

Secretary of the Department of Housing and Urban Development. The court refers to the agency

and Secretary Fudge collectively as “HUD.”

Pending before the court are HACA and HUD’s respective motions to dismiss the City’s

third-party complaints. See ECF 51-1, HACA Mot. Dismiss; ECF 75-1, HUD Mot. Dismiss.2 Both

of those motions are fully briefed, and no hearing is necessary. See Local Rule 105.6. For the

reasons stated here, the court will deny HACA’s motion to dismiss and grant HUD’s motion to

dismiss.3

I. BACKGROUND

In describing the following background information, the court accepts as true all well-pled

facts in the complaint and construes those facts in a light most favorable to the (third-party)

plaintiff. See Wikimedia Found. v. NSA, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v.

Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)).4

2 In addition to moving for dismissal under Rule 12(b)(6), HACA has moved, in the alternative,

for (1) summary judgment, and (2) judgment on the pleadings.

3 This Memorandum will be cross-docketed in Fisher v. City of Annapolis et al., CCB-21-1074.

The factual allegations between the two cases are substantially similar. See Fisher v. City of

Annapolis et al., Civ. No. CCB-21-1074, 2022 WL 959310, at *1 (D. Md. Mar. 30, 2022)

(describing factual background). Fisher, however, is not a class-action. The plaintiff in Fisher

named the City and HACA as defendants in the initial complaint. The court denied in part and

granted in part the City and HACA’s motions to dismiss. See ECFs 37, 38 in Fisher. The City

subsequently answered Fisher’s complaint and filed a cross-claim against HACA. See ECF 46 in

Fisher. HACA answered the City’s cross-claim. See ECF 60 in Fisher. The City also filed a third-

party complaint against HUD. See ECF 47 in Fisher. HUD moved to dismiss the City’s third-party

complaint in Fisher for the same reasons that it moved to dismiss the City’s third-party complaint

here. See ECF 85 in Fisher. Accordingly, the court will grant HUD’s motion to dismiss in Fisher

for the same reasons it will grant HUD’s motion to dismiss in this case.

4 “Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are

limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents

attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d

597, 606 (4th Cir. 2015). But, under limited circumstances, a court may consider documents

beyond the complaint without converting the motion to dismiss to one for summary judgment.

Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)). Specifically, a

court may consider documents that are “explicitly incorporated into the complaint by reference

and those attached to the complaint as exhibits.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,

166 (4th Cir. 2016) (cleaned up). The City’s third-party complaints explicitly incorporate the

plaintiffs’ complaint by reference. See City v. HACA Third-Party Compl. at ¶ 30; City v. HUD

A. Annapolis’s Public Housing Before the 2019 White v. City of Annapolis Decision

HACA is a public housing agency that manages about 790 apartment units. ECF 1, Pl.

Compl. at ¶ 23. Collectively, HACA’s units provide housing for about 1,600 residents. Id. Census

data suggest the majority5 of HACA’s residents are African American. Id. at ¶¶ 44–49.

The Annapolis City Code requires rental units to have operating licenses. See Annapolis

City Code § 17.44.010(A). To obtain an operating license, the rental units must be inspected and

in compliance with the City’s Residential Property and Maintenance Code. Id. § 17.44.030. For

many years, however, the City did not inspect or license HACA properties; such properties were

the only rental properties in Annapolis that were neither licensed nor inspected. Pl. Compl. at ¶ 29.

This apparently was a longstanding arrangement, as although rental licenses have been required of

landlords since 1985, HACA housing units have never been “fully, finally, or properly inspected

and licensed in accordance with the City Code.” Id. at ¶ 32.

HACA’s units are required by City Code to be re-licensed annually. Id. at ¶¶ 35–36. But

before any such license is issued, the relevant units must be inspected and found compliant with

the City’s maintenance code. Id. at ¶ 37. When an inspector finds conditions dangerous to health

or safety, the landlord must relocate the tenant, remediate the danger, request a reinspection, and

provide other proof to the City inspector that the danger is no longer present. Id. at ¶ 30.

Annapolis has, since the early 1980s, emphasized the importance of licenses and

inspections. Id. at ¶ 24. In one instance, the City went so far as to obtain emergency state legislation

to protect its regime from challengers who wished to evade the requirements. Id. But before 2019,

Second Am. Compl. at ¶¶ 39–43. Accordingly, the court will refer to the plaintiffs’ complaint as

necessary to provide context for the pending motions.

5 The plaintiffs exclude certain developments that mainly house senior citizens and people with

disabilities.

HACA properties were unique among Annapolis rentals in that they were neither licensed nor

inspected by the City. Id. at ¶ 29. HACA did not apply for licenses as required by the City Code,

and the City did not act on this non-compliance. Id.

On May 1, 2016, under Mayor Mike Pantelides, the City began an initial round of

inspections of HACA properties, revealing 2,498 City Code violations, some of which presented

dangers to health and safety and should have required relocation. Id. at ¶¶ 38–40. After that

summer, the City conducted various follow-up inspections, but no HACA property was fully and

properly licensed. Id. at ¶ 41. In 2017, newly appointed HACA Director Beverly Wilbourn

identified City inspections as a hurdle to her success in balancing HACA’s budget and interpreted

the City’s inspection requirements as “unfunded mandates.” Id. at ¶¶ 51–52. In summer 2017,

Wilbourn advised a HACA board member that she had reached an understanding with the City

Manager that the City would work out an alternative agreement on inspections, ultimately ordering

a halt of all inspections starting in late August 2017. Id. at ¶ 53. Then-Mayor Pantelides, an

advocate of inspecting public housing, expressed frustration at HACA’s resistance to treating

public housing properties the same as private rental units. Id. at ¶ 56.

But Annapolis would soon return to neglecting public housing. Mayor Pantelides was

defeated in the November 2017 city election; even before new Mayor Gavin Buckley was seated,

Wilbourn discussed the inspection issue with him, and the City and HACA agreed to stop

inspecting HACA properties. Id. at ¶ 59. The only public evidence of the December 2017–May

2019 return to a non-inspection regime came when HACA residents called the City to complain

about issues in their apartments, and representatives explained that the City no longer inspected

HACA properties. Id. at ¶ 60. In mid-May 2019, HACA and the City were involved in a lawsuit

against a HACA tenant, and at a hearing in the case, a city inspection worker testified that Mayor

Buckley had decided to exempt HACA from the City’s licensing requirement. Id. at ¶ 66.

Afterward, HACA’s attorney sent an email thanking that employee for his testimony on HACA’s

behalf and copying city officials, Mayor Buckley, and HACA Director Wilbourn. Id.

Two days later, on May 16, 2019, dozens of Annapolis public housing residents sued the

City and HACA under various federal and state civil rights claims. See White v. City of Annapolis,

No. CCB-19-1442. The White plaintiffs alleged that the City’s decision not to enforce inspection

and licensing requirements on public housing units disparately impacted African Americans. At

the case’s conclusion, the parties entered a consent decree enacting prospective equitable remedies

intended to improve public housing, and awarding monetary damages to the plaintiffs. See ECF

98, Consent Decree in CCB-19-1442. Even before entering the White consent decree, the City

responded to public-facing criticism of its non-inspection regime with a June 2019 resolution that

sought to restart HACA inspections and licensing. Pl. Compl. at ¶¶ 68–69.

B. The Plaintiffs’ Class-Action Challenge Post-White v. City of Annapolis

Named plaintiffs Tamara Johnson and Tyonna Holliday brought the present case to

challenge the public housing inspection policies implemented by the City in the wake of White.

Tamara Johnson lives in Harbour House, and fellow named plaintiff Tyonna Holliday lives in

Eastport Terrace. Id. at ¶¶ 4, 12. Both Harbour House and Eastport Terrace are public housing

complexes owned and operated by HACA. Id. at ¶¶ 6, 13. Johnson and Holliday have lived in their

apartments since 2017 and 2016, respectively. Id. at ¶¶ 5, 14. Since they have lived there, the City

never inspected either of their units. Id. Both Johnson and Holliday’s children suffer from

respiratory conditions exacerbated by persistent mold in their homes. Id. at ¶¶ 10–11, 17–18.

Johnson’s apartment has had sewage leaks and rodent infestations, while Holliday’s apartment

contains unsafe levels of lead. Id. at ¶¶ 8–9, 19. Johnson and Holliday represent a class of all

individuals who lived in HACA properties from May 7, 2018, to May 7, 2021. See ECF 97, Order

Certifying Class at 3.6

The City’s post-White reforms, according to the plaintiffs, did not end Annapolis’s racially

discriminatory public housing policies. The plaintiffs allege City officials and HACA hatched a

new plan—a “Shadow Policy”—to conduct inspections and licensing on HACA’s units differently

from other Annapolis rentals. Id. at ¶¶ 69–71. For example, the City explained in a private

communication to HACA that it would award waivers to certain units, grandfather in old

violations, and inspect for life-threatening safety issues only. Id. at ¶ 70. The City further explained

it would not deny licenses for deficiencies in routine maintenance, even going so far as to suggest

it might not withhold a license for “structural or mechanical defects.” Id. Besides effectively

gutting the June 2019 City resolution restarting inspections, the plaintiffs allege the Shadow Policy

intentionally treats HACA tenants differently from similarly situated non-HACA Annapolis

renters, perpetuating segregation and hurting the plaintiffs’ life, health, and safety. Id. at ¶¶ 72, 76,

77.

The City initially sought to dismiss the plaintiffs’ complaint for failure to state a claim. See

ECF 7, City Mot. Dismiss. The court denied the City’s motion. See ECF 19, Mem. Denying City

Mot. Dismiss; ECF 20, Order Denying City Mot. Dismiss.

6 “Excluded from the class are: (i) any of the individual Plaintiffs from White v. City of Annapolis,

Civil Action No. CCB-19-1442, or minor members of their immediate family who resided with

them; (ii) any employee or independent contractor of the Defendants; (iii) any relative of an

employee or independent contractor of the Defendants; (iv) any employee of the Court where this

action is pending, and (v) any person who filed for bankruptcy and received a discharge after

ceasing to be a resident in a HACA property.” Order Certifying Class at 3.

C. The City’s Third-Party Complaints

After the court denied its motion to dismiss, the City filed third-party complaints against

HACA and HUD.

1. City v. HACA

The City’s third-party complaint against HACA asserts that the plaintiffs’ injuries were

caused solely by HACA’s failure to maintain its property in a safe and sanitary condition. See City

v. HACA Third-Party Compl. at ¶ 27. HACA is an independent housing agency that operates as a

separate entity from the City. Id. at ¶ 25. If the City is ultimately found liable to the plaintiffs, the

City claims it is entitled to indemnification (Count I) and/or contribution (Count II) from HACA.

Id. at ¶¶ 28–35. The City’s third-party complaint largely repeats or incorporates the factual

allegations made by the plaintiffs.7 But the City particularly emphasizes the plaintiffs’ allegation

that the City “conspired with” HACA to continue its non-inspection policy. Id. at ¶ 19. Further,

the City alleges HACA had a non-delegable duty to provide decent, safe, and sanitary housing to

its residents. Id. at ¶¶ 24, 26.

2. City v. HUD

The City’s operative third-party complaint against HUD contends that the plaintiffs’

injuries were caused mainly by HUD’s failure to properly fund HACA. See City v. HUD Second

Am. Compl. at ¶¶ 37, 44, 48–49, 58, 61.8 The City also asserts HUD failed to enforce regulatory

requirements that would have provided the plaintiffs with decent, safe, and sanitary housing. Id. at

¶¶ 51, 61. For example, the City claims that HUD has “not moved to place HACA in a receivership

7 The City’s pleading includes a disclaimer that the City “denies any and all liabilities to the

plaintiffs.” See City v. HACA Third-Party Compl. at ¶ 29.

8 The City amended its third-party complaint twice. See ECF 36, City v. HUD First Am. Compl.;

ECF 64, City v. HUD Second Am. Compl. The City’s Second Amended Third-Party Complaint is

the operative complaint against HUD.

as required by its regulations.” Id. at ¶ 58. HUD’s failures, according to the City, were the true

culprit behind racially inequitable public housing in Annapolis. Id.

To frame these allegations, a brief explanation of the funding and regulatory scheme

surrounding public housing authorities like HACA is helpful. With the passage of the Housing Act

of 1937, Congress aspired to provide “decent and affordable housing for all citizens.” 42 U.S.C.

§ 1437(a)(4).9 But Congress recognized “the Federal Government cannot through its direct action

alone provide for the housing of every American citizen.” Id. § 1437(a)(2). So, the statute aimed

to “promote and protect the independent and collective actions of private citizens to develop

housing and strengthen their own neighborhoods.” Id. To that end, Congress required HUD to fund

and regulate state and local public housing authorities (“PHAs”) like HACA. See id.

§§ 1437a(b)(6), 1437g. PHAs manage housing units for low-income residents that generally

cannot afford housing in the private market.10

PHAs receive federal funding through two funding mechanisms: the Capital Fund and the

Operating Fund. See 42 U.S.C. § 1437g. The Capital Fund provides PHAs funding for “capital and

management activities,” such as “the development, financing, and modernization of public housing

projects.” Id. § 1437g(d)(1)(A). The Operating Fund provides PHAs funding for the “operation

and management of public housing,” such as security, insurance, and energy costs. Id.

§§ 1437g(e)(1)(C),(F)-(G). Congress replenishes these Funds through annual appropriations

legislation. See, e.g., Consolidated Appropriations Act, 2019, Pub. L. 116–6, 133 Stat. 13, 439

9 The Housing Act of 1937 was amended by the Housing and Community Development Act of

1974. The court refers to the current version of the statutory framework as “the Housing Act.”

10 See U.S. Dep’t Hous. & Urb. Dev., HUD’s Public Housing Program, https://www.hud.gov/pr

ogramdescription/phd; see also 42 U.S.C. § 1437a(b)(6)(A) (defining “public housing authorities”

as any “[s]tate, county, municipality, or other governmental entity or public body . . . authorized

to engage in or assist in the development or operation of public housing”).

(Feb. 15, 2019). The Secretary of HUD, in turn, develops formulas to determine how much funding

each PHA will receive in a fiscal year from the Funds. Id. §§ 1437g(d)(2), 1437g(e)(2).11 HUD

then distributes money from the Funds to PHAs through Annual Contributions Contracts

(“ACCs”). See 42 U.S.C. § 1437c. These contracts strike a simple bargain: in exchange for

receiving funding from HUD, a “PHA agrees to comply with HUD requirements for the

development and operation of its public housing projects.” See 24 C.F.R. § 990.115.

As a result, PHAs have a significant “amount of responsibility and flexibility in program

administration,” 42 U.S.C. § 1437(a)(1)(c), but must still respect HUD’s regulatory guardrails. For

example, HUD requires PHAs to maintain public housing in a safe and habitable condition. See

42 U.S.C. § 1437d(f). As part of HUD’s Public Housing Assessment System, these standards grade

PHAs on several indicators, such as the physical condition of housing units. See 24 C.F.R. §

902.9(a).12 HUD’s standards, however, “do not supersede or preempt state and local building and

maintenance codes with which [a] PHA’s public housing must comply. PHAs must continue to

adhere to these codes.” Id. § 902.20(e).

A PHA’s overall score from this assessment determines whether HUD designates the

agency as a “high performer,” a “standard performer,” a “substandard performer,” or a “troubled

performer.” 24 C.F.R. §§ 902.9, 902.11. PHAs with excessive deficiencies may face adverse

consequences ranging from more frequent inspections to the appointment of a receiver for the

PHA. Id. §§ 902.11, 902.13, 902.73, 902.75, 902.83.

11 HUD promulgates these formulas through notice-and-comment rulemaking. See 24 C.F.R.

§§ 905.400, 990.110.

12 A PHA is assessed on other indicators beyond the physical condition of the units it operates. See

24 C.F.R. § 902.9(a) (“Each PHA will receive an overall PHAS score, rounded to the nearest whole

number, based on the four indicators: Physical condition, financial condition, management

operations, and the Capital Fund program.”).

HUD has regularly placed HACA on the “troubled performer” list. See City v. HUD

Second Am. Compl. at ¶ 31. Despite HACA’s status as a “troubled performer,” HUD has not

placed it under receivership. Id. at ¶¶ 32–33. By pointing to the plaintiffs’ identification of the

racial demographics of HACA residents, the City asserts HUD’s relationship with HACA

exacerbated racial discrimination in Annapolis’s public housing. Id. at ¶¶ 38–43. And because

HUD controls HACA’s funding, the City asserts the condition of HACA properties “continue[d]

to degrade whether or not inspections at HACA properties [were] conducted.” Id. at ¶ 50. The

City’s third-party complaint asserts that HUD’s decision-making was not neutral; rather, HUD

“allow[ed] HACA to continually place City residents” in substandard properties “[b]ecause of the

race and economic levels of the plaintiffs.” Id. at ¶ 53.

Consequently, the City filed a third-party complaint against HUD which alleges the federal

agency’s lack of enforcement against HACA, in addition to its underfunding of HACA, violated

(1) the Housing Act, 42 U.S.C. § 1437, (2) the Fair Housing Act, 42 U.S.C. §§ 3601, 3602, 3604,

and (3) the equal protection clause of the Fifth Amendment to the U.S. Constitution.

II. LEGAL STANDARD

A. Rule 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) “addresses whether [the plaintiff] has a right to be in the district court at all

and whether the court has the power to hear and dispose of his claim.” Holloway v. Pagan River

Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). Issues of sovereign immunity and

standing are analyzed under the rubric of a motion to dismiss pursuant to Rule 12(b)(1). See, e.g.,

Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Def., 990 F.3d 834, 841 (4th Cir. 2021)

(sovereign immunity); Taubman Realty Grp. Ltd. P’ship v. Mineta, 320 F.3d 475, 480–81 (4th Cir.

2003) (standing). The plaintiff bears the burden of establishing subject matter jurisdiction.

Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may challenge

subject matter jurisdiction in two ways: (1) “by attacking the veracity of the allegations contained

in the complaint;” or (2) “by contending that, even assuming that the allegations are true, the

complaint fails to set forth facts upon which jurisdiction is proper.” Durden v. United States, 736

F.3d 296, 300 (4th Cir. 2013). When a defendant uses the latter method to contest subject matter

jurisdiction, the plaintiff “is afforded the same procedural protection as he would receive under a

Rule 12(b)(6) consideration.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).

B. Rule 12(b)(6)

The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, not to

“resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”

King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir. 1999)).13 A complaint must contain “sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

To survive a motion to dismiss, the factual allegations of a complaint “must be enough to

raise a right to relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations omitted).

“To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the elements

of the claim. However, the complaint must allege sufficient facts to establish those elements.”

13 Motions to dismiss third-party complaints “are governed by the provisions relating to motions

generally applicable in other contexts.” See 6 Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1453 (3d ed. 2022).

Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). “Thus, while a plaintiff

does not need to demonstrate in a complaint that the right to relief is ‘probable,’ the complaint

must advance the plaintiff’s claim ‘across the line from conceivable to plausible.’” Id. (quoting

Twombly, 550 U.S. at 570). Although courts “must view the facts alleged in the light most

favorable to the plaintiff,” they “will not accept ‘legal conclusions couched as facts or unwarranted

inferences, unreasonable conclusions, or arguments’” in deciding whether a case should survive a

motion to dismiss. U.S. ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707 F.3d 451, 455 (4th

Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).

C. Rule 12(c)

HACA’s motion requests the court, in the alternative, enter judgment on the pleadings

under Rule 12(c). See HACA Mot. Dismiss at 1. The same standard applies to Rule 12(c) motions

for judgment on the pleadings as to Rule 12(b)(6) motions to dismiss for failure to state a claim.

Massey v. Ojaniit, 759 F.3d 343, 347 (4th Cir. 2014). “[I]n disposing of a Rule 12(c) motion,

‘courts may consider relevant facts obtained from the public record, so long as these facts are

construed in the light most favorable to the plaintiff along with the well-pleaded allegations of the

complaint.’” Id. at 353 (quoting Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir.

2013)).

D. Rule 56 Conversion

HACA also moved, in the alternative, for summary judgment under Federal Rule of Civil

Procedure 56. See HACA Mot. Dismiss at 1. A motion with this caption implicates the court’s

discretion under Federal Rule of Civil Procedure 12(d). See Kensington Volunteer Fire Dep’t, Inc.

v. Montgomery Cnty., 788 F. Supp. 2d 431, 436–37 (D. Md. 2011). The court declines to convert

HACA’s motion into a motion for summary judgment because HACA has not identified any

materials beyond the pleadings that the court would need to evaluate in resolving the motion. See

Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (explaining that the notice requirement for

converting a motion to dismiss is satisfied “[w]hen a party is aware that material outside the

pleadings is before the court”).

III. DISCUSSION

A. HACA’s Motion to Dismiss

HACA asserts the court must dismiss the City’s third-party complaint because the City

fails to state claims for indemnification or contribution under Maryland law. The court disagrees.14

1. Indemnification

The City seeks indemnification from HACA on a tort-based theory of implied

indemnification.15 HACA argues it need not indemnify the City because the plaintiffs’ theories of

liability turn on the City’s active negligence. Because the pleadings do not conclusively establish

the City’s active negligence, however, the court declines to dismiss the City’s indemnification

claim at this procedural stage.

Maryland law provides a tort-based right to indemnification “when there is a great disparity

in the fault of two tortfeasors, and one of the tortfeasors has paid for a loss that was primarily the

responsibility of the other.” Int’l Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124,

14 Little authority analyzes the elements of contribution or indemnification in the context of a

defendant to a federal civil rights suit seeking relief as a third-party plaintiff. The lack of case law

addressing these issues may be due to federal preemption concerns. See, e.g., Equal Rts. Ctr. v.

Niles Bolton Assocs., 602 F.3d 597, 602 (4th Cir. 2010) (indemnification); Hepburn ex rel.

Hepburn v. Athelas Inst., Inc., 324 F. Supp. 2d 752, 759–60 (D. Md. 2004) (contribution). Because

the parties have not yet raised this argument, however, the court will not consider it at this time.

15 Maryland recognizes three types of indemnification: (1) express contractual indemnity; (2)

implied-in-fact indemnity based on a special relationship between the parties; and (3) tort

indemnity, which exists where equitable considerations require indemnification. Pulte Home

Corp. v. Parex, Inc., 942 A.2d 722, 730–31 (Md. 2008). Here, neither an indemnification contract

nor an implied “special relationship” exists between the City and HACA.

127 (4th Cir. 1988) (citations omitted). In evaluating indemnification claims, courts must

determine whether the third-party plaintiff faces allegations of active or passive negligence. See

Bd. of Trs. of Baltimore Cnty. Cmty. Coll. v. RTKL Assocs., Inc., 559 A.2d 805, 811 (Md. App.

1989) (citing Pyramid Condo. Ass’n v. Morgan, 606 F. Supp. 592, 596 (D. Md. 1985)).16 “Under

this analysis, a party is only entitled to indemnification when the party’s actions, although

negligent, are considered to be passive or secondary to those of the primary tort-feasor.” Id. Indeed,

“one who is guilty of active negligence cannot obtain tort indemnification.” Franklin v. Morrison,

711 A.2d 177, 187 (Md. 1998). “Although there remains ambiguity as to the outer reaches of when

a third party-plaintiff may seek indemnity from another defendant, at base, the distinction between

active and passive negligence turns on whether the third-party plaintiff was negligent or whether

its liability is entirely dependent on the negligence of another defendant.” Potomac Elec. Power

Co. v. Midwest Mole, Inc., Civ. No. 19-3037-AAQ, 2022 WL 17362679, at *6 (D. Md. Dec. 1,

2022) (citations omitted).17

HACA argues the City was actively negligent in not enforcing its inspection and licensing

regime on HACA properties. See HACA Mot. Dismiss at 13–15. At this stage of the litigation,

however, the record is not sufficiently developed to foreclose the possibility that the City could be

held liable on a “passive negligence” theory. See Max’s of Camden Yards v. A.C. Beverage, 913

A.2d 654, 663 (Md. App. 2006) (requiring a motion to dismiss an indemnification claim to

establish “from the alleged underlying facts, regardless of the theories alleged, that the third-party

plaintiff could not possibly be held liable on any passive negligence theory”). HACA points to the

16 The Maryland Court of Appeals, the state’s high court, is now named the Supreme Court of

Maryland (“Md.”) and the intermediate Court of Special Appeals is now the Appellate Court of

Maryland (“Md. App.”).

17 Unpublished opinions are cited for the soundness of their reasoning, not for any precedential

value.

plaintiffs’ allegations that the City’s non-inspection policy was a deliberate and calculated

decision; such an intentional decision, according to HACA, surely constitutes “active negligence.”

But the fact that a third-party plaintiff “took some affirmative action itself does not automatically

make its negligence active.” See Potomac, 2022 WL 17362679, at *7 (cleaned up).

For example, in Hartford Accident and Indemnity Co. v. Scarlett Harbor Associates Ltd.

Partnership, 674 A.2d 106 (Md. App. 1996) (Hollander, J.), aff’d, 695 A.2d 153 (Md. 1997), the

Appellate Court of Maryland explained that if “a developer whose property is in violation of the

building code has committed no independent negligence, and is required to pay damages solely

because of its breach of its nondelegable duty to comply with the code, the developer may obtain

indemnification from its independent contractor whose negligence actually caused the breach.” Id.

at 136. In that case, the developer-defendants were alleged to “have falsely told unit purchasers

that [a] [c]ondominium would conform to plans and specifications.” Id. Despite the plaintiffs’

allegations of the defendants’ intentional deception, the Hartford court concluded the defendants

“may be able to recover indemnification from a contractor whose faulty work was the primary

cause of the lack of conformity to plans and specifications[.]” Id.

Although the plaintiffs allege the City’s failure to inspect HACA’s public housing units

constituted intentional discrimination, the harm experienced by the plaintiffs arguably flows most

proximately from HACA’s alleged failure to maintain those units in the first place. Consider, for

instance, the allegation that Johnson’s daughter suffers from a mold-induced respiratory illness.

Pl. Compl. at ¶¶ 10–11. While the City’s lack of inspections left mold problems unattended,

HACA—Johnson’s operative landlord—is alleged to have actively covered up the problem. Id. at

¶ 10. By simply painting over the mold, HACA’s actions were closer to the scene of the plaintiffs’

direct injuries. Id. at ¶ 10. In that sense, the City has plausibly stated that HACA’s “faulty work

was the primary cause” of the harm. See Hartford, 674 A.2d at 136.

But the court need not resolve this fact-intensive dispute on a motion to dismiss. See

Potomac, 2022 WL 17362679, at *6 (quoting Nat’l Lab. Coll., Inc. v. Hillier Grp. Architecture

N.J., Inc., No. DKC 09-1954, 2012 WL 3264959, at *8 (D. Md. Aug. 9, 2012)) (“At this stage of

the litigation [i.e., the dismissal stage], it is sufficient that [the plaintiff] has alleged negligence

claims against [the defendant/third-party plaintiff] and that [the defendant/third-party plaintiff], in

turn, has alleged that [the third-party defendant] was the princip[a]l tortfeasor.”). The plaintiffs’

complaint against the City does not foreclose the inference that the City was passively negligent

in failing to inspect HACA properties. Accordingly, the court will deny HACA’s motion to dismiss

the City’s indemnification claim.

2. Contribution

Under Maryland law, contribution is available among joint tortfeasors under the Uniform

Contribution Among Tort–Feasors Act (“UCATA”). See Md. Code Ann., Cts. & Jud. Proc. §§ 3–

1401, et seq. “Contribution rests on common liability, not on joint negligence or joint tort.

Common liability exists when two or more actors are liable to an injured party for the same

damages, even though their liability may rest on different grounds.” See Potomac, 2022 WL

17362679, at *9 (citing Richards v. Freeman, 179 F. Supp. 2d 556, 560 (D. Md. 2002)) (internal

brackets omitted). In other words, a claim for contribution does not require “joint negligence in

the sense that all the wrongdoers fail in the performance of an identical duty[.]” See Richards, 179

F. Supp. 2d at 561 (D. Md. 2002) (citing Parler & Wobber v. Miles & Stockbridge, P.C., 756 A.2d

526, 534 (Md. 2000)). Because contribution from a third party defendant is predicated on its direct

liability to the plaintiff, there is no right of contribution where the plaintiff has no right of action

against the third party defendant. Kelly v. Fullwood Foods, Inc., 111 F. Supp. 2d 712, 715 (D. Md.

2000) (citing Montgomery Cnty. v. Valk Mfg. Co., 562 A.2d 1246, 1249 (Md. 1989)).

Here, the plaintiffs’ complaint alleges the City and HACA jointly conspired to create a

discriminatory non-inspection policy. See Pl. Compl. at ¶ 69 (“[B]oth City and HACA officials

continued behind the scenes to work together to discriminate directly against the tenants of the

HACA Properties, including the Named Plaintiffs.”). In this regard, the City and HACA’s actions

resulted in the same alleged harm to public housing residents: adverse health consequences and

the deprivation of civil rights. Indeed, similarly situated plaintiffs sued HACA and the City in a

companion case based on the same allegations here. See Fisher v. City of Annapolis, Civ. No.

CCB-21-1074, 2022 WL 959310, at *10–14 (D. Md. Mar. 30, 2022) (denying HACA’s motion to

dismiss except as to the plaintiffs’ § 1986 claim, which was granted).

HACA argues that the City does not identify “any non-time barred actions by HACA that

could make HACA liable for the [p]laintiffs’ claimed damages.” HACA Mot. Dismiss at 16. The

only HACA wrongdoing alleged in the plaintiffs’ complaint, according to HACA, occurred more

than three years before May 24, 2022, the date the City filed its third party claim for contribution

against HACA. Id. at 5. And because it is now too late for the plaintiffs to add HACA as a

defendant without violating the relevant statute of limitations,18 the City’s contribution claim fails

because the plaintiffs no longer have a right of action against HACA. See HACA Mot. Dismiss at

16, citing Pyramid, 606 F. Supp. at 598 (“When a plaintiff has no right of action against a third

party, there can be no contribution entitling the defendant to join the third party as a defendant

18 The § 1986 action for neglect to prevent a civil rights conspiracy requires a wrongful act after

May 1, 2020 (one year); the Fair Housing Act claim requires a wrongful act after May 1, 2019

(two years); and the rest of the claims require a wrongful act after May 1, 2018 (three years).

under the Uniform Act, notwithstanding the fact that liability under the Act may be joint or

several.”).

HACA’s argument has been explicitly rejected by Maryland courts. The general rule, as

HACA correctly identifies, is that a “joint tort-feasor” must be “legally responsible to the plaintiff

for his or her injuries,” because “contribution under the UCATA . . . is predicated on a

wrongdoer’s direct liability to the plaintiff.” Valk, 562 A.2d at 1252. For instance, no claim to

contribution exists where an alleged “joint tort-feasor” cannot be held liable in the underlying suit

due to certain immunities or the defense of contributory negligence. See id. at 1250–51. But “one

exception to this general rule relates to the statute of limitations defense.” Gables Constr., Inc. v.

Red Coats, Inc., 228 A.3d 736, 755 (Md. 2020) (cleaned up). The Supreme Court of Maryland has

explained that a “statute of limitations defense is distinct, because that defense does not arise out

of the wrongdoing itself but rather depends on litigation procedures transpiring after the

wrongdoing has occurred.” Id. (cleaned up). “In the case of limitations, the third-party defendant

could have been held liable to the plaintiff before the statute ran—the plaintiff simply chose not to

impose the obligation.” Id. at 757 n.20.19 To be clear, the statute of limitations on the City’s

contribution claim “has not even begun to run, much less operate as a bar to suit.” See Tadjer v.

Montgomery Cnty., 487 A.2d 658, 660 (Md. App. 1985). That is because the City’s right to

contribution, if any, “accrue[s] at the time of payment [to the plaintiffs] and not before.” See

Heritage Harbour, L.L.C. v. John J. Reynolds, Inc., 795 A.2d 806, 814 (Md. App. 2002).20

19 Here, the plaintiffs could have sued HACA alongside the City; in fact, the plaintiffs did just that

in Fisher. The court has already declined to dismiss the plaintiffs’ claims on a statute of limitations

challenge. See, e.g., Fisher, 2022 WL 959310, at *8–9; Johnson v. City of Annapolis, Civ. No.

CCB-21-1120, 2022 WL 959149, at *6–7 (D. Md. Mar. 30, 2022).

20 Despite arguing that the City’s claims are untimely, HACA also suggests the City’s claims are

premature. See ECF 72, HACA Reply at 6. But it is well-established that indemnification and

Accordingly, the court will deny HACA’s motion to dismiss the City’s contribution claim.

B. HUD’s Motion to Dismiss

The City’s three claims against HUD seek to hold the federal agency responsible for the

injuries suffered by HACA’s residents. HUD, according to the City, underfunded HACA and

failed to enforce federal habitability requirements in HACA units. Count I of the City’s Second

Amended Third-Party Complaint alleges HUD violated the Housing Act, 42 U.S.C. § 1437, which

“requires HUD to use its funding to help remedy unsafe and unsanitary housing conditions.” See

City v. HUD Second Am. Compl. at ¶¶ 54–59. Count II asserts HUD’s actions disproportionately

harmed Black Annapolis public housing residents in violation of the Fair Housing Act, 42 U.S.C.

§§ 3601, 3602, 3604. See City v. HUD Second Am. Compl. at ¶¶ 60–65.21 Count III alleges that

HUD’s practices constitute intentional racial discrimination in violation of the equal protection

clause of the Fifth Amendment to the United States Constitution. The City seeks only declaratory

and injunctive relief for its claims against HUD.

The court will dismiss the City’s third-party complaint against HUD for lack of jurisdiction

because the City lacks Article III standing to bring its claims.

1. Sovereign Immunity

The court must first address HUD’s argument that sovereign immunity precludes the City’s

suit. Sovereign immunity generally shields the United States and its agencies from suit. FDIC v.

Meyer, 510 U.S. 471, 475 (1994). “Sovereign immunity can, however, be waived.” Strickland v.

contribution claims may “co-exist with their underlying suits in a third-party action before

damages accrue.” Heritage Harbour, 795 A.2d at 815 (emphasis in original); see also Sher v.

Luxury Mortg. Corp., Civ. No. ELH-11-3656, 2012 WL 5869303, at *13–14 (D. Md. Nov. 19,

2012) (rejecting argument that an indemnification claim brought via a third-party complaint was

not ripe).

21 The court refers to Count I and Count II of the City’s Second Amended Third-Party Complaint

collectively as the City’s “statutory claims.”

United States, 32 F.4th 311, 363 (4th Cir. 2022). For example, “Congress has enacted certain

statutes that both create a cause of action against the federal government and expressly waive the

government’s immunity from suit for those actions.” Id. Still, courts must not haphazardly imply

the existence of a waiver; any waiver of sovereign immunity “must be unequivocally expressed in

statutory text.” See Lane v. Pena, 518 U.S. 187, 192 (1996) (cleaned up).

Here, however, the court need not resolve whether sovereign immunity bars each of the

City’s claims against HUD. Even if sovereign immunity precludes the court from considering the

City’s statutory claims (Counts I and II), the City’s constitutional claim is clearly reviewable under

the Larson-Dugan doctrine (Count III). In Count III, the City alleges that HUD violated the Fifth

Amendment’s equal protection clause by depriving Annapolis residents of safe and affordable

housing based on race. Because the City names the Secretary of HUD as a defendant and requests

only declaratory or injunctive relief for an ongoing constitutional violation, the City’s Fifth

Amendment claim is not barred by sovereign immunity. Indeed, “a plaintiff can obtain injunctive

relief against an individual officer or agent of the United States in his official capacity for acts

beyond his statutory or constitutional authority because such actions ‘are considered individual

and not sovereign actions.’” Strickland, 32 F.4th at 363 (citing Larson v. Domestic & Foreign

Com. Corp., 337 U.S. 682, 689 (1949)). “In other words, under the so-called Larson-Dugan

exception, suits for specific relief against officers of the sovereign allegedly acting beyond

statutory authority or unconstitutionally are not barred by sovereign immunity.” Id. at 363–64

(cleaned up); see also Little Earth of United Tribes, Inc. v. U.S. Dep’t of Hous. & Urb. Dev., 584

F. Supp. 1292, 1300 (D. Minn. 1983) (rejecting argument that § 1404a independently waives

sovereign immunity against HUD but still finding jurisdiction proper for the plaintiff’s request for

equitable relief under the Larson-Dugan exception).

Because sovereign immunity poses no barrier to the court’s review of Count III, the court

would have to resolve Article III standing issues even if sovereign immunity barred the court from

reviewing Counts I and II. So, the court need not address whether sovereign immunity applies to

the City’s statutory claims in Counts I and II. The ultimate outcome is no different, however,

because the City lacks standing to raise any of its claims. See infra Section III.B.2.

2. Standing

Because at least one of the City’s claims is not barred by sovereign immunity, the court

must turn to a separate jurisdictional inquiry—that is, whether the City has presented a justiciable

“case or controversy” under Article III of the U.S. Constitution. A “case or controversy” exists

only when a plaintiff has standing to assert their claims. To have standing, a plaintiff must show

“(1) an injury in fact; (2) a causal connection between the injury and the conduct complained of,

such that the injury is fairly traceable to the defendant’s actions; and (3) a likelihood that the injury

will be redressed by a favorable decision.” Benham v. City of Charlotte, 635 F.3d 129, 134 (4th

Cir. 2011) (quoting Lujan, 504 U.S. at 560–61) (internal quotation marks omitted).

i. Injury

To satisfy the injury in fact requirement, a plaintiff must demonstrate that they suffered an

invasion of a legally protected interest, which is “concrete and particularized” and “actual or

imminent,” not “conjectural or hypothetical,” id. at 135 (quoting Lujan, 504 U.S. at 560). The

injury requirement is not satisfied by a plaintiff’s reliance on “a highly attenuated chain of

possibilities,” or “speculation about the unfettered choices made by independent actors not before

the court.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 414 n.5 (2013) (cleaned up). And

because the City seeks declaratory and injunctive relief, it must establish an ongoing or future

injury that is “certainly impending”; it may not rest on past injury. Id. at 401.

Here, the City has not shown how it was individually harmed by HUD. The City’s operative

complaint simply claims the injuries suffered by Annapolis residents as injuries to the City itself.

See, e.g., City v. HUD, Second Am. Compl. at ¶ 18 (“The City contends that the Plaintiffs’

complained-of conditions result from the policies, actions, and inactions of HUD”) (emphasis

added); id. at ¶ 58 (“HUD’s policies and actions have failed to provide sufficient funding to the

City and HACA to provide the Plaintiffs and other African-American city residents with decent

and safe housing.”) (emphasis added); id. at ¶ 62 (“HUD’s policies inflict disproportionate harm

on Plaintiffs and other African-American city residents”) (emphasis added). The City’s move to

appropriate its residents’ injuries as its own cannot be squared with the requirement that a “plaintiff

generally must assert his own legal rights and interests, and cannot rest his claim to relief on the

legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).

It is sometimes possible for municipal governments to satisfy these requirements. For

example, the Supreme Court in Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979), found

that a village had standing to sue under the Fair Housing Act because the effects of segregation,

while experienced most directly by minority residents, harmed the village’s own interest in

promoting racially integrated neighborhoods. Id. at 110–11. The Court recognized that

discriminatory housing practices could reduce the number of prospective residents in an area,

which would “directly injure[] a municipality by diminishing its tax base.” Id.

Whether Annapolis residents were harmed is irrelevant to the City’s claim of injury; the

courthouse doors remain open to individuals, like Ms. Johnson, who attempt to vindicate their own

rights. The question here is whether the City suffered an injury separate and apart from those

experienced by Annapolis residents. The answer is no. The City failed to state the type of injury

recognized in Gladstone in its pleadings. The closest the City comes is a vague assertion that

HUD’s actions “perpetuate segregation.” See City v. HUD, Second Am. Compl. at ¶ 64. But such

an allegation lacks the specificity required to show the City itself suffered from HUD’s conduct.

Courts have found that other municipal governments lacked standing to raise similar

challenges in the absence of Gladstone-style allegations. Take, for example, the Eighth Circuit’s

decision in City of Kansas City v. Yarco Co., 625 F.3d 1038 (8th Cir. 2010). There, Kansas City

alleged that the owners of an apartment complex violated the FHA by imposing a discriminatory

curfew policy for its residents. The Eighth Circuit held that Kansas City failed to allege any “injury

to itself.” Id. at 1040. Rather, the city’s pleadings referenced only the injuries of certain residents

in the apartment complex. Id. While recognizing that the “burden of showing injury at the pleading

stage is low,” the Eighth Circuit still dismissed the case for lack of standing because Kansas City

was “silent about harm to its particular interests.” Id.

The City’s next theory of standing turns on speculative assumptions about the underlying

suit between the City and Annapolis public housing residents. Broadly speaking, the City contends

that the resources it has devoted to defending itself against Ms. Johnson’s allegations of racial and

housing discrimination constitute an injury to the City. See City Opp’n to HUD Mot. Dismiss at

31 (“HUD’s actions underscore the essence of the underlying issue in Plaintiffs’ complaint to

causing injury to the City. Further, the City will also incur significant costs and attorney fees and

in litigating the matters. All of this resulted from HUD’s policies and inactions.”). The court need

not address whether the City’s litigation costs meet the “injury in fact” requirement. Even if the

City could establish a cognizable injury, it cannot satisfy the remaining two requirements for

Article III standing: causation and redressability.

ii. Causation

The City cannot show a causal connection between its purported injury—that is, the

litigation expenses in defending itself against Ms. Johnson’s claims—and any action by HUD. See

Lujan, 504 U.S. at 560. The City’s potential liability to Annapolis public housing residents is not

fairly traceable to HUD. It is worth highlighting the lengthy and speculative chain of causation at

issue. According to the City, the first domino fell when HACA failed to maintain its public housing

units and, at times, actively concealed unsafe living conditions like mold growth from its tenants.

HACA, as a condition for receiving federal funds, agreed to abide by HUD’s regulations governing

the habitability of public housing units. But despite HACA’s failure to cultivate safe and habitable

public housing, HUD did not wield its enforcement tools to compel HACA to comply with the

relevant habitability requirements. Meanwhile, public housing residents in Annapolis sued the City

based on allegations that the City had an explicit policy to exempt public housing units from

inspections. And because HUD could have hypothetically enforced its regulatory requirements

against HACA, the City asserts “it is not at all responsible” for depriving the residents of safe

housing.

In essence, the City bases its causation argument on a counterfactual narrative in which

HUD could have intervened to improve the condition of HACA units, thus saving the City from

having to defend itself against claims of racial and housing discrimination. But this theory of

causation was rejected by the Supreme Court in Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976). That case involved low-income individuals who sued the IRS

for providing favorable tax breaks to hospitals that did not offer the full range of medical services

to indigent patients. Id. at 28. There, the plaintiffs lacked standing because there was little more

than a tenuous connection between the alleged harm (the lack of indigent medical care) and the

challenged conduct (the IRS’s tax incentives). Id. at 43–44. Justice Powell’s majority opinion

made clear that the plaintiffs could not satisfy Article III’s causation requirement by relying on

“the remote possibility, unsubstantiated by allegations of fact, that their situation might have been

better had (defendants) acted otherwise.” Id. at 44 (quoting Warth, 422 U.S. at 507). Indeed, it was

“purely speculative” whether removal of the challenged tax breaks would cause the hospitals to

expand the scope of the services they offered. Id. at 42–43.

The winding causal chain connecting HUD and the City turns entirely on the independent

decisions of HACA and the public housing residents who sued the City. These independent

decisions prevent the City from fairly tracing its litigation woes to HUD. See Allen v. Wright, 468

U.S. 737, 759 (1984) (rejecting assertion of standing where the purported causal chain involved

“numerous third parties” whose independent actions had an uncertain and speculative effect).

Although HUD had the ability to wield regulatory enforcement tools against HACA, whether such

an intervention would have materially improved HACA units remains “purely speculative.” See

Simon, 426 U.S. at 42. And based on the City’s own pleadings, HACA’s independent negligence

contributed to the poor condition of the relevant housing units. See City v. HUD, Second Am.

Compl. at ¶ 18 (“[T]he Plaintiffs’ complained-of conditions result from the policies, actions, and

inactions of HUD and HACA demonstrated by their failures to properly fund the properties and

HACA’s failure to maintain them in a safe and sanitary condition[.]”). Further, the City’s liability

stems from the independent decision made by residents like Ms. Johnson to sue the City, a choice

untethered from any discrete conduct by HUD. This is not even considering the glaring possibility

that the City’s own actions—i.e., the alleged non-inspection policy—exposed the City to the

residents’ claims of racial and housing discrimination. See Cameron County Hous. Auth. v. City of

Port Isabel, 997 F.3d 619, 623–24 (5th Cir. 2021) (finding no standing to assert Fair Housing Act

claim because the plaintiff’s claimed injury “had nothing to do with” the defendant’s alleged

unlawful conduct but “was the combined result of third-party actions and self-inflicted harm”).

Accordingly, the City cannot satisfy the causation requirement of Article III standing.

iii. Redressability

For similar reasons, the City has also failed to properly allege redressability. The City’s

only attempt to establish this element is to assert that “[i]f the Court grants the City’s declaratory

relief, it would relieve the City from the Plaintiffs’ allegations against it in the class action.” See

City Opp’n to HUD Mot. Dismiss at 37. The City, however, references no authority to support this

counterintuitive proposition. Specifically, the City requests the court declare “that any injuries

claimed by the Plaintiffs are a result of HUD policies and actions and not that of the City.” See

City v. HUD Second Am. Compl., Prayer for Relief, ¶ D. But HUD is not in litigation with the

resident-plaintiffs, and remedies “operate with respect to specific parties,” California v. Texas, 141

S. Ct. 2104, 2115 (2021). So, the court’s adjudication of the City’s claims against HUD would

have little consequence for Ms. Johnson’s suit against the City. Even if the City were to prevail on

each of its claims against HUD, no declaratory or injunctive relief would alter the City’s potential

liability to the public housing residents suing the City due to the City’s alleged non-inspection

policy. Accordingly, the City cannot show its injury is redressable by this court.

In sum, the City cannot satisfy the standing requirements of Article III, so the court will

dismiss the City’s third-party complaint against HUD without prejudice.22

22 “A dismissal for lack of standing—or any other defect in subject matter jurisdiction—must be

one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and

dispose of a claim on the merits.” Episcopal Church in S.C. v. Church Ins. Co. of Vt., 997 F.3d

149, 154 n.4 (4th Cir. 2021) (quoting S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at

Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)).

IV. CONCLUSION

For the reasons stated here, HACA’s motion to dismiss the City’s third-party complaint

will be denied and HUD’s motion to dismiss the City’s third-party complaint will be granted. A

separate Order follows.

5/11/2023 /s/

Date Catherine C. Blake

United States District Judge