San Antonio Housing Authority v. United States

In the United States Court of Federal Claims

No. 17-1796C

Filed: June 11, 2019

* * * * * * * * * * * * * * * * * * * *

SAN ANTONIO HOUSING *

AUTHORITY, *

* Motion to Dismiss; Breach of

Plaintiff, * Contract; Monetary Damages;

* Equitable Relief; Sections 8 and

v. * 9 of the 1937 Housing Act;

UNITED STATES, * Appropriations; Moving to

* Work Demonstration Program.

Defendant. *

*

* * * * * * * * * * * * * * * * * * * *

Stephen T. Dennis, Clark Hill Strasburger, San Antonio, TX, for plaintiff. With him

was Katie Anderson, Clark Hill Strasburger, San Antonio, TX.

Isaac B. Rosenberg, Trial Attorney, Commercial Litigation Branch, Civil Division,

Unites States Department of Justice, Washington, D.C., for defendant. With him were

Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant

Attorney General. Of counsel were David M. Reizes, Assistant General Counsel for

Assisted Housing and Civil Rights Litigation, Office of General Counsel, United States

Department of Housing and Urban Development, Washington, D.C, and Kyle E. Helmick,

Attorney Advisor, Office of General Counsel, United States Department of Housing &

Urban Development.

OPINION

HORN, J.

Plaintiff San Antonio Housing Authority (SAHA) is a public housing agency based

in San Antonio, Texas, which receives “Section 8” funding for housing rental assistance

and “Section 9” subsidies for its operation costs and capital and management activities

from the United States Department of Housing and Urban Development (HUD) pursuant

to Section 8 and Section 9 of the United States Housing Act of 1937. See Pub. L. No.

75-412, 50 Stat. 888 (1937) (codified as amended at 42 U.S.C. § 1437 et seq. (2018))

(1937 Housing Act). Plaintiff also participates in the federal housing program titled

“Moving to Work” (MTW demonstration program), which allows public housing agencies

to use various sources of federal public house funding, including Section 8 funding and

Section 9 subsidies, interchangeably with other grant-in-aid funds.

In 2012, HUD decided to reduce all public housing agencies’ Section 9 funding

with public housing agencies’ operating reserves, which were excess operating funds

held by the public housing agency. As both parties agree, HUD, however, did not

uniformly reduce public housing agencies’ Section 9 funding in 2012. For public housing

agencies not participating in the MTW demonstration program (non-MTW agencies), HUD

calculated each of the non-MTW agencies’ operating reserve amounts and then reduced

each of the non-MTW agencies’ Section 9 operating subsidy for 2012 with the non-MTW

agencies’ actual operating reserve level. Allegedly due to an inability to calculate the

amount of operating reserve levels for public housing agencies participating in the MTW

demonstration program (MTW agencies), HUD did not individually assess the operating

reserve levels for each of the MTW agencies. Instead, HUD offset MTW agencies’ Section

9 operating subsidy with the average, pro-rata percentage of the reduction of the Section

9 operating subsidy applied to the MTW agency’s peer group, a group of similarly sized

non-MTW agencies.

The above-captioned case does not arise from the government’s decision just to

reduce Section 9 funding with public housing agencies’ operating reserve levels, but,

instead, from the government’s allegedly unequal application of the Section 9 funding

offset between non-MTW agencies and MTW agencies. Plaintiff alleges that the

government discriminated against MTW agencies, including plaintiff, when the

government reduced MTW agencies’ Section 9 funding by a pro-rata average reduction

based on MTW agencies’ peer group of non-MTW agencies.

Plaintiff has filed suit in this court, alleging three counts seeking to recover a

damages award of $2,874,719.00 for the government’s alleged decision to unequally

offset plaintiff’s Section 9 operating funding for 2012. Count I alleges that the government

breached a contract with plaintiff, which the parties in this case, at times, refer to as the

“MTW Agreement,” in which the government promised not to discriminate against plaintiff

based on plaintiff’s participation in the MTW demonstration program. Count II alleges that

the government violated the Department of Veterans Affairs and Housing and Urban

Development, and Independent Agencies Appropriations Act of 1996, Pub. L. No. 104-

134, § 204, 110 Stat. 1321, 1321-281 (1996) (MTW Statute), which created and

authorized the MTW demonstration program and which prohibits the government from

diminishing an MTW agency’s Section 9 funding based on the MTW agency’s decision to

participate in the MTW demonstration program. Count III alleges that the government

violated the Consolidated and Continuing Appropriations Act of 2012, Pub. L. No. 112-

55, 125 Stat. 552 (2011) (2012 Appropriations Act), which appropriated monies for HUD’s

Section 9 operating subsidies for 2012 and which required defendant to consider the

operating reserves available to MTW and Non-MTW agencies when determining a

potential offset for Section 9 funding. See 2012 Appropriations Act, 125 Stat. at 680.

Currently pending before the court is a motion to dismiss the above-captioned case

filed by defendant, the United States, for lack of subject-matter jurisdiction, pursuant to

Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2018).

According to defendant, plaintiff’s three “claims are not based upon any money-

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mandating source of law.” In the alternative, defendant has moved to dismiss plaintiff’s

three count complaint for failure to state a claim, pursuant to RCFC 12(b)(6).

FINDINGS OF FACT

The Relevant HUD Programs

Pursuant to the 1937 Housing Act, HUD provides federal funding at the State and

local level to promote affordable housing for low-income individuals. See 42 U.S.C.

§ 1437(a) (2018). HUD administers the funding to public housing agencies, which are

“any State, county, municipality, or other governmental entity or public body (or agency

or instrumentality thereof) which is authorized to engage in or assist in the development

or operation of public housing, or a consortium of such entities or bodies as approved by

the Secretary” of HUD. Id. at § 1437a(b)(6)(a) (2018). The public housing agencies, in

turn, provide local affordable housing to individual tenants. Two of the federal housing

programs relevant to the above-captioned case are “Section 8” rental assistance

payments and “Section 9” operating and capital subsidies.

Section 8 of the 1937 Housing Act, currently codified at 42 U.S.C. § 1437f (2018),

states that, “[f]or the purpose of aiding low-income families in obtaining a decent place to

live and of promoting economically mixed housing, assistance payments may be made

with respect to existing housing in accordance with the provisions of this section.” Id. at

§ 1437f(a). The Secretary of HUD “is authorized to enter into annual contributions

contracts with public housing agencies pursuant to which such agencies may enter into

contracts to make assistance payments to owners of existing dwelling units.” Id. at

§ 1437f(b)(1). The Secretary of HUD also is “authorized to enter into annual contributions

contracts with public housing agencies for the purpose of replacing public housing.” Id. at

§ 1437f(b)(2).

Another feature of Section 8 is the “Voucher program,” which states that “[t]he

Secretary may provide assistance to public housing agencies for tenant-based

assistance . . . .” Id. at § 1437f(o)(1)(A). The monthly assistance payment under the

Voucher program

shall be equal to the amount by which the rent (including the amount

allowed for tenant-paid utilities) exceeds the greatest of the following

amounts, rounded to the nearest dollar:

(i) 30 percent of the monthly adjusted income of the

family.

(ii) 10 percent of the monthly income of the family.

(iii) If the family is receiving payments for welfare

assistance from a public agency and a part of those

payments, adjusted in accordance with the actual

housing costs of the family, is specifically designated

by that agency to meet the housing costs of the family,

the portion of those payments that is so designated.

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Id. at § 1437f(o)(2)(A).

Section 9 of the 1937 Housing Act, currently codified at 42 U.S.C. § 1437g (2018),

provides subsidies for public housing agencies to help cover their operational and capital

activities. See 42 U.S.C. § 1437g(d)-(e). Unlike with Section 8 assistance, the law

requires that the Secretary of HUD allocate Section 9 funding into a “Capital Fund” and

an “Operating Fund,” from which HUD makes the subsidy payments to qualifying public

housing agencies. Id. at § 1437g(c)(1) (“For fiscal year 2000 and each fiscal year

thereafter, the Secretary shall allocate amounts in the Capital Fund and Operating Funds

[sic] for assistance for public housing agencies eligible for such assistance.” (footnote

omitted)). Regarding the “Capital Fund,” Section 9 states that “[t]he Secretary shall

establish a Capital Fund for the purpose of making assistance available to public housing

agencies to carry out capital and management activities,” which include such tasks as

“the development, financing, and modernization of public housing projects,” “vacancy

reduction,” “addressing deferred maintenance needs and the replacement of obsolete

utility systems and dwelling equipment.” Id. at § 1437g(d)(1).

Regarding the “Operating Fund,” Section 9 states that “[t]he Secretary shall

establish an Operating Fund for the purpose of making assistance available to public

housing agencies for the operation and management of public housing,” which includes

activities such as “procedures and systems to maintain and ensure the efficient

management and operation of public housing units,” “activities to ensure a program of

routine preventative maintenance,” and “anticrime and antidrug activities, including the

costs of providing adequate security for public housing residents.” Id. at § 1437g(e)(1).

Section 9 also provides HUD with the “Right of recapture” of Section 9 funding. See id. at

§ 1437g(j)(6). Pursuant to Section 9, “[a]ny obligation entered into by a public housing

agency shall be subject to the right of the Secretary to recapture the obligated amounts

for violation by the public housing agency of the requirements of this subsection,” which

includes the requirements that (1) a public housing agency “obligate” Section 9 funds

within “24 months” after receiving the funds, and (2) a public housing agency “spend any

assistance received under this section not later than 4 years . . . after the date on which

funds become available to the agency for obligation.” Id.

The amount of payment a public housing agency receives from the Capital Fund

and Operating Fund is determined by the Secretary of HUD. See id. at § 1437g(d)(2)(A),

(e)(2)(A). For both the Capital Fund and Operating Fund, the “Secretary shall establish a

formula for determining the amount of assistance provided to public housing agencies”

from each fund on a yearly basis. Id. at § 1437g(d)(2). The applicable Section 9 operating

subsidy formula established by the Secretary of HUD, currently codified at 24 C.F.R.

§ 990.110 (2018), calculates, on an individual project1 level basis, the difference between

1A “project” is defined as a “public housing building or set of buildings grouped for the

purpose of management” and a public housing agency’s operating subsidy eligibility is

determined for each individual project. See 24 C.F.R. § 990.265 (2018); see also 24

C.F.R. § 990.160 (2018).

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the public housing agency’s estimated non-operating subsidy revenue and estimated

operating expenses. See 24 C.F.R. § 990.110(a)(2). Public housing agencies are eligible

for an operating subsidy when the estimated project operating expense is greater than

the estimated non-operating subsidy revenue for the year. See id. If HUD, however, does

not have sufficient funds to pay the full amount of Section 9 operating subsidies due to

public housing agencies, “HUD shall have discretion to revise, on a pro rata basis, the

amounts of operating subsidy to be paid to PHAs [public housing agencies].” 24 C.F.R.

§ 990.210 (2018). HUD’s regulations also note that the amount of “[o]perating subsidy

payments will be limited to the availability of funds as described in § 990.201(c).” 24

C.F.R. § 990.110(b)(3). As plaintiff notes in its response to defendant’s motion to dismiss,

“[a]nnual Congressional appropriations for operating subsidies have generally been less

than the subsidy amounts produced by the formulas,” and that, “[w]hen this occurs, the

operating subsidy for each PHA is reduced by HUD on a pro-rata basis.” (citing 24 C.F.R.

§ 990.210(c)).

To convey Section 8 and Section 9 funding to public housing agencies, HUD uses

annual contribution contracts, which are contracts that public housing agencies and HUD

are required to enter into on an annual basis by law. See 42 U.S.C. § 1437c(a)(1) (“The

Secretary may make annual contributions to public housing agencies to assist in

achieving and maintaining the lower income character of their projects. The Secretary

shall embody the provisions for such annual contributions in a contract guaranteeing their

payment.”); see also 42 U.S.C. §§ 1437d(a)-(b), 1437f(b). As defined by federal

regulation, “[a]nnual contributions contract (ACC) is a contract prescribed by HUD for

loans and contributions, which may be in the form of operating subsidy, whereby HUD

agrees to provide financial assistance and the PHA agrees to comply with HUD

requirements for the development and operation of its public housing projects.” 24 C.F.R.

§ 990.115 (2018).

The MTW Demonstration Program

In 1996, as part of that year’s appropriation act for HUD, Congress authorized the

“MTW demonstration program.” See MTW Statute § 204(a). A substantive law, which

authorizes the Executive Branch to create programs, normally precedes an appropriation

act. See A Glossary of Terms Used in the Federal Budget Process, UNITED STATES

GOVERNMENT ACCOUNTABILITY OFFICE, 15, https://www.gao.gov/products/GAO-05-734SP

(last visited June 11, 2019) (GAO Glossary) (noting that “Authorizing Legislation”

“establishes and continues the operation of a federal program or agency either indefinitely

or for a specific period or that sanctions a particular type of obligation or expenditure

within a program” and noting that “[t]his term is used in two different ways: (1) to describe

legislation enacting new program authority, that is, authorizing the program, and (2) to

describe legislation authorizing an appropriation”).2 An “appropriation act” is a law that

2 As the United States Court of Appeals for the Federal Circuit explained in Thompson v.

Cherokee Nation of Oklahoma, 334 F.3d 1075 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2003), aff’d, 543 U.S. 631 (2005), “[s]everal fundamental principles of

appropriations law, as enunciated by the Supreme Court, by this court, by our

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provides funding to support authorization laws. See Schism v. United States, 316 F.3d

1259, 1266 n.7 (Fed. Cir. 2002) (“An authorization act is passed every year by both

chambers of Congress. In this act, the Congress enumerates, or ‘authorizes,’ the activities

that may be carried-out by each department. (Other activities may be authorized by

permanent legislation.) An appropriations bill, on the other hand, explicitly provides the

amount of funding each such activity will receive for that Fiscal Year.”); see also GAO

Glossary at 13 (defining “Appropriation Act” as “[a] statute” that “generally provides legal

authority for federal agencies to incur obligations and to make payments out of the

Treasury for specified purposes” and noting that “an appropriation act should follow

enactment of authorizing legislation”). At times, Congress authorizes programs within an

appropriation statute, as Congress did with the MTW demonstration program in 1996.

Pursuant to the MTW Statute, the “PURPOSE” of the MTW demonstration program

is to

give public housing agencies and the Secretary of Housing and Urban

Development the flexibility to design and test various approaches for

providing and administering housing assistance that: reduce cost and

achieve greater cost effectiveness in Federal expenditures; give incentives

to families with children where the head of household is working, seeking

work, or is preparing for work by participating in job training, educational

programs, or programs that assist people to obtain employment and

become economically self-sufficient; and increase housing choices for low-

income families.

predecessor court, and by other circuits” have “relied on the opinions of the General

Accounting Office [subsequently renamed the Government Accountability Office] (‘GAO’),

as expressed in Principles of Federal Appropriations Law (‘GAO Redbook’), and on the

opinions of the Comptroller General, both of whose opinions, while not binding, are ‘expert

opinion[s], which we should prudently consider.’” Thompson v. Cherokee Nation of Okla.,

334 F.3d at 1084 (emphasis in original) (quoting Delta Data Sys. Corp. v. Webster, 744

F.2d 197, 201 (D.C. Cir. 1984)); see also Star-Glo Assocs., LP v. United States, 414 F.3d

1349, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2005). Thus, for

purposes of this Opinion, this court will refer to the most recent edition of the GAO

Redbook, as well as the GAO Glossary, the GAO’s online publication of “standard terms,

definitions, and classifications for the government’s fiscal, budget, and program

information.” See GAO Glossary, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE,

https://www.gao.gov/products/GAO-05-734SP (last visited June 11, 2019). Because the

GAO is in the process of updating the GAO Redbook, the 4th and latest edition of the

GAO Redbook, published in 2016, is currently only available for Chapters 1 through 3,

while the 3rd edition, published in 2004, remains the most currently available edition for

Chapters 5 through 15, the remaining chapters of the GAO Redbook. See THE RED BOOK,

https://www.gao.gov/legal/appropriations-law-decisions/red-book (last visited June 11,

2019).

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MTW Statute § 204(a) (capitalization in original). The MTW Statute further provides that,

unlike non-MTW agencies, MTW agencies

may combine operating assistance provided under section 9 of the United

States Housing Act of 1937, modernization assistance provided under

section 14 of such Act, and assistance provided under section 8 of such Act

for the certificate and voucher programs, to provide housing assistance for

low-income families, as defined in section 3(b)(2) of the United States

Housing Act of 1937, and services to facilitate the transition to work on such

terms and conditions as the agency may propose and the Secretary may

approve.

Id. at § 204(b).

Section (f) of MTW Statute, the provision at issue in Count II of the complaint and

which plaintiff alleges defendant violated when it reduced its Section 9 operating subsidy

in 2012, states that “[t]he amount of assistance received under section 8, section 9, or

pursuant to section 14 [of the United States Housing Act of 1937] by a public housing

agency participating in the [MTW] demonstration under this part shall not be diminished

by its participation.” Id. at § 204(f). Defendant refers to Section (f) as the “undiminished

assistance provision” in its motion to dismiss, while plaintiff refers to Section (f) in its

complaint as the “Anti-Discrimination Provision.”

Beginning in 2008, HUD entered into standardized “MTW agreements” with each

participating public housing agency. See Hous. Auth. of City of New Haven v. United

States, 140 Fed. Cl. 773, 778 (2018) (noting that a public housing authority which

participates in the MTW demonstration program “must execute a standard MTW agree-

ment memorializing the terms of its participation in the program”); see also Moving to

Work Standard Agreement, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

https://www.hud.gov/program_offices/public_indian_housing/programs/ph/mtw/mtwsa

(last visited June 11, 2019) (noting that each public housing agency participating in the

MTW demonstration program entered into a “MTW Standard Agreement” beginning in

2008). Before 2008, each participating public housing agency in the MTW demonstration

program “had a unique Agreement with HUD regarding the conditions of its participation

and exceptions to statute and regulation.” Moving to Work Standard Agreement,

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

https://www.hud.gov/program_offices/public_indian_housing/programs/ph/mtw/mtwsa

(last visited June 11, 2019).

Plaintiff’s 2009 MTW Agreement with HUD

On June 25, 2009, after HUD made the switch to using standardized MTW

agreements program wide, plaintiff and HUD entered into a standardized MTW

agreement (2009 MTW Agreement). The 2009 MTW Agreement is the agreement that

plaintiff alleges defendant breached in 2012, when defendant allegedly, wrongfully

diminished plaintiff’s Section 9 operating subsidy due to plaintiff’s participation in the

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MTW demonstration program. Plaintiff’s 2009 MTW Agreement, which was signed by

plaintiff’s President and CEO and by an Assistant Secretary of HUD, memorialized

various “mutual representations and obligations” agreed to by plaintiff and HUD.

Section I of the 2009 MTW Agreement, titled “Statutory Authorizations,”

states that it “waives certain provisions of the United States Housing Act of 1937, as

amended (1937 Act), and HUD’s implementing requirements and regulations

thereunder,” only “to the extent they are necessary to implement the Agency’s Annual

MTW Plan.” According to Attachment B to plaintiff’s 2009 MTW Agreement, entitled

“Form 50900: Elements for the Annual MTW Plan and Annual MTW Report,” and which

was attached to plaintiff’s complaint in the above-captioned case, an agency’s Annual

MTW Plan outlines an MTW agency’s general operating information, proposed MTW

activities, approved and ongoing MTW activities, and sources and uses of MTW funds.

(capitalization in original).

Section I of the 2009 MTW Agreement also requires plaintiff to comply with certain

provisions under the 1937 Housing Act and states:

[T]he following provisions of the 1937 Act, as otherwise applicable, shall

continue to apply to the Agency and/or assistance received pursuant to the

1937 Act:

1. The terms “low-income families” and “very low-income

families” shall continue to be defined by reference to Section

3(b)(2) of the 1937 Act (42 U.S.C. § 1437a(b)(2));

2. Section 12 of the 1937 Act (42 U.S.C. § 1437j), as

amended, shall apply to housing assisted under the

demonstration, other than housing assisted solely due to

occupancy by families receiving tenant-based assistance; and

3. Section 18 of the 1937 Act (42 U.S.C. § 1437p, as amended

by Section 1002(d) of Public Law 104-19, Section 201(b)(1)

of Public Law 104-134, and Section 201(b) of Public Law 104-

202), governing demolition and disposition, shall continue to

apply to public housing notwithstanding any use of the

housing under MTW.

Section I further states that “[o]ther federal, state and local requirements applicable to

public housing shall continue to apply notwithstanding any term contained in this”

agreement, including “but are not limited to,” “Appropriations Acts, competitive HUD

notices of funding availability under which the Agency has received an award, state and

local laws, Federal statutes other than the 1937 Act, and OMB Circulars and

requirements.”

Section II.A of plaintiff’s 2009 MTW Agreement, which largely tracks the language

of Section (f) of the MTW Statute, states that, “[t]he amount of assistance received under

sections 8 or 9 of the 1937 Act by an Agency participating in the demonstration shall not

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be diminished by the Agency’s participation in the MTW demonstration.” Also, like the

MTW Statute, the 2009 MTW Agreement states that plaintiff could “combine” Section 8

and Section 9 funds, which the 2009 MTW Agreement referred to as “MTW Funds,” in

order to provide “flexibility” in carrying out the MTW demonstration program.

The 2009 MTW Agreement includes a “Funding” section, which states that “HUD

will provide the Agency with public housing operating subsidies, and modernization or

capital funds (including development and replacement housing factor funds), and with

tenant-based Section 8 assistance, as provided in Attachment A.” Attachment A

provides that, “[u]pon execution of the Moving to Work (MTW) Agreement (MTW

Agreement) between the U.S. Department of Housing and Urban Development (HUD)

and the San Antonio Housing Authority (Agency), HUD will provide the Agency with

operating subsidy, capital funds and Housing Choice Voucher Program assistance as

described below.” Attachment A explains that “[t]he calculation of operating subsidy will

continue in accordance with applicable operating subsidy formula law and regulations.”

As previously noted, the “applicable operating subsidy formula law and

regulations” calculate, on an individual project level basis, the difference between the

public housing agency’s estimated non-operating subsidy revenue and estimated

operating expenses. See 24 C.F.R. § 990.110(a)(2). Public housing agencies are

eligible for an operating subsidy when the estimated project operating expense is

greater than the estimated non-operating subsidy revenue for the year. See id. If HUD,

however, does not have sufficient funds to pay the full amount of a public housing

agency’s annual operating subsidy, “HUD shall have discretion to revise, on a pro rata

basis, the amounts of operating subsidy to be paid to PHAs.” 24 C.F.R. § 990.210.

HUD’s 2011 Notice Regarding Operating Fund Subsidies for 2012

On September 26, 2011, HUD issued “Notice PIH [Public and Indian Housing]

2011-055” to all public housing agencies regarding HUD’s calculation of operating

subsidies for the 2012 and explained that Congress may require operating subsidies for

2012 to be offset by a public housing agency’s “operating reserves.” The 2011 Notice

explained that “[t]he President’s 2012 budget contains language that if included in the

HUD 2012 Appropriations Act would require HUD to take into account PHA operating

reserves in the calculation of PHA operating subsidy,” also known as a “‘Subsidy

Allocation Adjustment.’” “Operating reserves,” as explained in the 2011 Notice,

means the amount of current assets that are available after liquidating any

liability that is due within the next year (current liability). . . . For most PHAs

operating reserves is the accumulation of funds that includes but is not

limited to:

• unspent operating subsidy, including ARF;

• unspent tenant rent;

• other miscellaneous revenue, including program income

that has expanded uses (e.g., non-rental income from

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vending machines, cell tower leases, energy savings from

energy performance contracts); and

• unrestricted, unspent insurance proceeds (i.e., when

insurance proceeds are in excess of the actual cost to

repair the property or the PHA received written HUD

approval to retain the insurance proceeds in lieu of

repairing the units and the property is approved by HUD

for demolition or disposition).

The 2011 Notice also noted that:

Although this adjustment has not yet been enacted by Congress, HUD is

providing PHAs with this information and the procedures for implementation

so that PHAs are able to plan accordingly. . . . [A]ny allocation adjustment

to the operating subsidy is subject to the language in the FFY 2012

Appropriations Act.

The 2011 Notice also indicated how HUD would calculate the operating subsidy

allocation adjustment for 2012 if Congress decided to offset operating subsidies with a

public housing agency’s operating reserves. Notably, the 2011 Notice explained that

HUD’s calculation of the subsidy allocation adjustment would differ between MTW

agencies and non-MTW agencies. For non-MTW agencies, the 2011 Notice indicated that

HUD’s subsidy allocation adjustment would take into account a public housing agency’s

operating reserves. If a public housing agency had reserves in excess of a certain

required minimum level of operating expenses, which was four or six months of operating

expenses, depending on a public housing agency’s size, the excess reserves would offset

a portion of the public housing agency’s operating subsidy. If a public housing agency did

not have any excess reserves, the public housing agency’s operating subsidy would not

be reduced. Contrastingly, for MTW agencies, according to the 2011 Notice, regardless

of whether a MTW agency had excess reserves, a MTW agency’s operation subsidy

would be reduced by a set percentage “based on the average reduction” of the MTW

agency’s “peer group.” A peer group, according to plaintiff’s complaint, “refers to similarly-

sized public housing agencies.”

Federal Funding for Section 9 Operating Subsidies for 2012

On November 18, 2011, Congress enacted the 2012 Appropriations Act, which

appropriated monies for HUD’s operating subsidies for 2012. See 2012 Appropriations

Act, 125 Stat. at 680. According to the 2012 Appropriations Act:

For 2012 payments to public housing agencies for the operation and

management of public housing, as authorized by section 9(e) of the United

States Housing Act of 1937 (42 U.S.C. [§] 1437g(e)), $3,961,850,000, of

which $20,000,000 shall be available until September 30, 2013: Provided,

That in determining public housing agencies’, including Moving to Work

agencies’, calendar year 2012 funding allocations under this heading, the

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Secretary shall take into account public housing agencies’ excess operating

fund reserves, as determined by the Secretary: Provided further, That

Moving to Work agencies shall receive a pro-rata reduction consistent with

their peer groups: Provided further, That no public housing agency shall be

left with less than $100,000 in operating reserves . . . .

Id. (emphasis in original).

When calculating the amount of Section 9 funding public housing agencies were

to receive in 2012, HUD did not take into account individual MTW agencies’ excess

operating reserve levels. According to HUD’s “2012 Operating Subsidy Allocation

Adjustment Implementation Plan Congressional Report,” which HUD submitted on

December 16, 2011 to Senator Daniel K. Inouye, Chairman of the Committee on

Appropriations of the United States Senate, and which also was attached to defendant’s

motion to dismiss, HUD was “unable to determine reserve balances for agencies that

participate in the Moving-to-Work (MTW) program given the flexibility MTW agencies

have to combine program funds between both their Section 8 Tenant Based Rental

Assistance program and Section 9 Public Housing funds.” Thus, as HUD’s report states,

and as both parties in the above-captioned case agree, HUD reduced MTW agencies’

Section 9 operating subsidies by the average percentage reduction in the operating

subsidy of the MTW agencies’ applicable peer group.

In plaintiff’s case, the amount of the Section 9 operating subsidy plaintiff needed

to cover its operating expenses for 2012, was, according to HUD’s 2012 operating

subsidy spreadsheet, $23,643,309.00. HUD first reduced this amount by “12.8%,” or

$3,027,298.00, which was the average operating subsidy reduction of plaintiff’s peer

group, resulting in a net 2012 operating subsidy amount of $20,616,011.00. HUD then

reduced plaintiff’s operating subsidy a second time, by applying a “prorated factor of

94.96%,” which HUD uniformly applied to all non-MTW and MTW agencies, due to a lack

of sufficiently appropriated monies by Congress to fully fund the Section 9 program for

2012. In other words, plaintiff only received 94.96% of $20,616,011.00, resulting in a final

2012 operating subsidy amount of $19,576,970.00 Plaintiff in the above-captioned case

does not challenge HUD’s decision to apply a prorated factor of 94.96% to its Section 9

operating subsidy, which was uniformly applied to MTW and non-MTW agencies. Plaintiff,

instead, challenges HUD’s decision to first reduce plaintiff’s Section 9 operating subsidy

by 12.8%, the average reduction a MTW’s peer group of non-MTW agencies. According

to plaintiff, San Antonio Housing Authority had no operating reserve levels for 2012, and,

thus, its Section 9 operating subsidy only should have been offset by the prorated factor

of 94.96%.

Following HUD’s decision to offset a MTW agency’s Section 9 operating subsidy

in 2012, at least one public housing agency, besides the plaintiff in the above-captioned

case, has brought suit in the United States Court of Federal Claims, alleging that the

government breached its MTW agreement and the 2012 Appropriations Act when the

government allegedly unequally reduced its Section 9 operating subsidy in comparison

to non-MTW agencies. See Hous. Auth. of City of New Haven v. United States, 140 Fed.

11

Cl. at 775. The Housing Authority of City of New Haven plaintiff, however, did not bring

an additional claim pursuant to Section (f) of the MTW Statute, as does the plaintiff in this

case. In the Housing Authority of City of New Haven case, the Judge found that the court

had jurisdiction over the public housing agency’s breach of contract claim, but dismissed

the other two counts of the complaint, which alleged two separate violations of the 2012

Appropriations Act, for lack of subject matter jurisdiction. See id. at 791. As of the date of

this Opinion, the Housing Authority of City of New Haven case is currently ongoing.

PROCEDURAL HISTORY

On November 15, 2017, plaintiff filed its three count complaint in the above-

captioned case, alleging that HUD wrongfully diminished plaintiff’s 2012 operating

subsidy “solely because” plaintiff “is a MTW agency.” As previously discussed, plaintiff

was eligible for a 2012 operating subsidy in the amount of $23,643,309.00, which was

reduced by 12.8%, the average operating subsidy reduction for plaintiff’s peer group,

resulting in a net operating subsidy of $20,616,011.00. Plaintiff’s net amount was further

reduced by HUD’s decision to apply a proration factor of 94.96%, which HUD applied

uniformly to MTW and non-MTW agencies, resulting in a final 2012 operating subsidy

amount of $19,576,970.00. Plaintiff’s complaint does not challenge HUD’s decision to

apply a proration factor of 94.96%. Instead, plaintiff challenges HUD’s decision to first

decrease plaintiff’s operating subsidy amount of $23,643,309.00 by 12.8% allegedly due

to plaintiff’s participation in the MTW demonstration program. According to plaintiff’s

complaint, plaintiff had “zero excess reserves” for 2012 and, thus, if it had been treated

like non-MTW agencies, for which HUD took into account their actual operating reserve

level, plaintiff’s 2012 operating subsidy would not have been reduced by 12.8%.

(emphasis in original). According to plaintiff, its Section 9 operating subsidy amount

should have only been reduced once, by the 94.96% proration factor, resulting in a

Section 9 subsidy amount of $22,451,686.00. Plaintiff now seeks to recover

$2,874,719.00, the difference between $22,451,686.00, the amount of the Section 9

operating subsidy plaintiff alleges it should have received in 2012, and $19,576,970.00,

the amount of the Section 9 operating subsidy plaintiff received in 2012.

Plaintiff’s complaint asserts three counts, each seeking damages in the amount of

$2,874,719.00. Count I alleges that HUD “breached the Anti-Discrimination Provision in

Section II.A of the MTW Agreement by reducing SAHA’s [San Antonio Housing

Authority’s] operating subsidy” “solely because SAHA is a MTW agency (specifically

through HUD’s policy requiring reduction of the operating subsidies of MTW agencies,

regardless of whether the agency had excess reserves, while considering the existence

of excess reserves in making the same determination for non-MTW agencies).” According

to Count I, “[a]s a result of HUD’s breach of the MTW Agreement, SAHA was damaged

in the amount of at least $2,874,719 and is entitled to recover [sic] same.”

Count II alleges that HUD “violated Section (f)” of the MTW Statute, which,

according to plaintiff, “prohibits the reduction of a MTW agency’s operating subsidy on

the basis of the agency’s participation in the MTW program.” Plaintiff alleges that “by

reducing SAHA’s operating subsidy . . . solely because SAHA is a MTW agency,”

12

defendant violated Section (f) of the MTW Statute and that plaintiff “was damaged in the

amount of at least $2,874,719.00 and is entitled to recover [sic] same.”

Count III alleges that HUD “violated” the “2012 Appropriations Act,” “by reducing

SAHA’s operating subsidy . . . solely because SAHA is a MTW agency.” According to

Count III, the 2012 Appropriations Act “requires HUD to consider the excess operating

fund reserves of public housing agencies,” including “MTW agencies, when making 2012

funding allocations.” Count III alleges that, “[a]s a result of HUD’s violation of the 2012

Appropriations Act, SAHA was damaged in the amount of at least $2,874,719.00 and is

entitled to recover [sic] same.”

Defendant filed a motion to dismiss pursuant to RCFC 12(b)(1) for lack of subject

matter jurisdiction, alleging that “SAHA’s claims are not based upon any money-

mandating source of law,” and, therefore, the complaint is outside this court’s jurisdiction

under the Tucker Act. Defendant, in the alternative, seeks to dismiss plaintiff’s complaint

pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief may be granted.

Defendant argues: “[B]ecause SAHA seeks relief to which it is not entitled under the MTW

Statute, the 2012 Appropriations Act, or its MTW agreement [2009 MTW Agreement]—

namely, a naked money judgement with no strings attached—SAHA likewise has failed

to state a claim upon which relief can be granted.”

Plaintiff filed a response to defendant’s motion to dismiss, arguing that each of its

three counts invoke a money-mandating source of law, and, therefore, this court has

subject matter jurisdiction over its complaint. Additionally, plaintiff argues each of its three

counts present a “plausible claim for compensatory monetary damages,” and, thus,

survive defendant’s motion to dismiss for failure to state a claim. In the alternative, plaintiff

requests that, “[i]n the event this Court finds that jurisdiction is lacking over all or part of

SAHA’s claims under the Tucker Act,” this court, “in the interest of justice,” should

“transfer this case to the United States District Court for the Western District of Texas,

San Antonio Division, under the Transfer Statute, 28 U.S.C. § 1631.”

Defendant filed its reply in support of its motion to dismiss, reiterating that this court

lacks subject matter jurisdiction over plaintiff’s complaint and that plaintiff’s complaint fails

to state a claim. Defendant also argues that transferring plaintiff’s case to any district court

“is not appropriate” because plaintiff’s complaint may potentially be time-barred by the

six-year statute of limitations contained in 28 U.S.C. § 2401(a) (2018), which, according

to defendant, “‘provides that every civil action against the United States is barred unless

brought within six years of accrual.’” (quoting Dunn-McCampbell Royalty Interest, Inc. v.

Nat’l Park Serv., 112 F.3d 1283, 1286 (5th Cir. 1997)). Defendant also argues that transfer

is inappropriate given the “‘weakness of plaintiff’s case on the merits.’” (quoting Cycenas

v. United States, 120 Fed. Cl. 485, 503 (2015)). Plaintiff moved for leave to file a sur-reply

to defendant’s reply, which the court granted. Plaintiff filed its sur-reply brief, and

defendant filed a response to plaintiff’s sur-reply brief. Based on issues raised in the

parties’ filings regarding defendant’s motion to dismiss, the court ordered simultaneous

supplemental briefing.

13

DISCUSSION

I. Count I: Alleged Breach of the 2009 MTW Agreement.

Defendant has moved to dismiss plaintiff’s breach of contract claim for lack of

subject matter jurisdiction pursuant to RCFC 12(b)(1). Count I of the complaint alleges

that defendant breached the 2009 MTW Agreement when the government decreased

plaintiff’s Section 9 operating subsidy for the 2012 calendar year based solely on plaintiff’s

participation in the MTW demonstration program. The parties in the above-captioned case

do not challenge whether the 2009 MTW Agreement is a valid, enforceable contract.

Defendant argues that “the MTW agreement cannot fairly be interpreted as mandating

the payment of money damages in the event of a breach and therefore is not money-

mandating within the meaning of the Tucker Act.” As addressed more fully below,

defendant presents a string of scattershot arguments of why the 2009 MTW Agreement

allegedly falls outside of this court’s jurisdiction. Plaintiff, in response, argues that “[t]he

language of the MTW Agreement establishes that money damages are available,” and

argues that, “[a]ccordingly, the MTW Agreement can fairly be interpreted as

contemplating monetary damages in the event of breach.” (internal quotation marks

omitted). Plaintiff also argues that because Judges of this court have found that HUD had

breached public housing contracts between HUD and various public housing authorities,

see Boaz Housing Authority v. United States, 141 Fed. Cl. 74 (2018), Public Housing

Authorities Directors Association v. United States, 130 Fed. Cl. 522 (2017), and Housing

Authority of Santa Clara v. United States, 125 Fed. Cl. 557 (2016), this court should find

that plaintiff’s 2009 MTW Agreement falls within this court’s jurisdiction.

“Subject-matter jurisdiction may be challenged at any time by the parties or by the

court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing

Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g

en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also Int’l Elec.

Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker

Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);

see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.

Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487

14

F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,

552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable

under the Tucker Act. The claim must be one for money damages against the United

States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United

States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116

(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that

creates the right to recovery of money damages against the United States.”); Golden v.

United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United

States, the United States Court of Appeals for the Federal Circuit identified three types of

monetary claims for which jurisdiction is lodged in the United States Court of Federal

Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.

[392,] 401-02 [1976] (“Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unless, as the Court

of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a “money-mandating”

statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see

also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

15

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon “‘can fairly be

interpreted as mandating compensation by the Federal Government.’” United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see

also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.

Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.

Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief

must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.

at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional

provision[] that operate[s] to waive sovereign immunity for claims premised on other

sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the

Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject

matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,

1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);

see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United

States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-

mandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United

States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66

(2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson

v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a

judge must accept as true all of the factual allegations contained in the complaint.” (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema

N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,

1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as

true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));

Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.

2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

“Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiff’s claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing

that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)

(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,

550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of

law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.

Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel

Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in

16

part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed.

2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations

unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460

U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the

speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting

v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated

in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

The jurisdictional analysis for a contract claim, such as plaintiff’s Count I, however,

is different from a claim alleging a violation of a statute or regulation, such as plaintiff’s

Count II, alleging a violation of Section (f) of the MTW Statute, and Count III, alleging a

violation of the 2012 Appropriations Act. See Higbie v. United States, 778 F.3d 990, 993

(Fed. Cir.) (“Contract law is a separate source of law compensable under the Tucker

Act.”), cert. denied, 136 S. Ct. 37 (2015); see also Holmes v. United States, 657 F.3d

1303, 1314 (Fed. Cir. 2011) (“In our view, when referencing the money-mandating inquiry

for Tucker Act jurisdiction, the cases logically put to one side contract-based claims.”).

The Federal Circuit has explained that, in “‘a contract case, the money-mandating

requirement for Tucker Act jurisdiction normally is satisfied by the presumption that

money damages are available for breach of contract, with no further inquiry being

necessary.’” LaBatte v. United States, 899 F.3d 1373, 1378 (Fed. Cir. 2018) (quoting

Holmes v. United States, 657 F.3d at 1314) (holding that appellant’s allegations and

prayer for monetary relief for his breach of a settlement agreement claim were “more than

sufficient” to establish jurisdiction in the United States Court of Federal Claims); see also

Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1327 (Fed. Cir. 2016)

(“Where there is a breach of a government contract, ‘as with private agreements, there is

a presumption in the civil context that a damages remedy will be available upon the

breach of an agreement.’” (quoting Sanders v. United States, 252 F.3d 1329, 1334 (Fed.

Cir. 2001)); Higbie v. United States, 778 F.3d at 993 (“As with private agreements, when

a government contract is breached, there is a presumption that a damages remedy will

be available.” (citing Sanders v. United States, 252 F.3d at 1334)); Sanders v. United

States, 252 F.3d at 1334 (noting that in the “civil context,” “‘damages are always the

default remedy for breach of contract’” (quoting United States v. Winstar Corp., 518 U.S.

839, 885 (1996) (plurality opinion))); Restatement (Second) of Contracts § 346 cmt. a

(1981) (“Every breach of contract gives the injured party a right to damages against the

party in breach, unless the contract is not enforceable against that party, as where he is

not bound because of the Statute of Frauds.”). “‘Typically, based on that presumption,

“‘“no further inquiry is required”’” into whether money damages are available.’” LaBatte v.

United States, 899 F.3d at 1379 (quoting Rocky Mountain Helium, LLC v. United States,

841 F.3d at 1327 (quoting Holmes v. United States, 657 F.3d at 1314)); see also Higbie

v. United States, 778 F.3d at 993 (citing Holmes v. United States, 657 F.3d at 1314). “This

is true, even when ‘there [was] no language in the agreements indicating that the parties

did not intend for money damages to be available in the event of breach.’” LaBatte v.

17

United States, 899 F.3d at 1379 (alterations in original) (quoting Holmes v. United States,

657 F.3d at 1316); Greenhill v. United States, 81 Fed. Cl. 786, 790 (2008) (“The fact that

the settlement agreement did not specifically provide for money damages in the event of

a breach does not deprive the Court of jurisdiction; money damages are the default

remedy for breach of contract, and ‘there is no generic requirement under the Tucker Act

that contracts must include specific language indicating that damages will be paid upon

a breach.’” (quoting Stovall v. United States, 71 Fed. Cl. 696, 700 (2006))).

“The Government, however, has not consented to suit under the Tucker Act for

every contract.” Higbie v. United States, 778 F.3d at 993 (citing Rick’s Mushroom Serv.,

Inc. v. United States, 521 F.3d at 1343). There are limited circumstances in which the

presumption that money damages are available in a breach of contract claim may not

apply. As the United States Court of Appeals for the Federal Circuit explained in Rocky

Mountain Helium, LLC v. United States:

We have found that money damages are not available in a breach of

contract case only in a limited number of situations—e.g., where a contract

expressly disavows money damages, see [Holmes v. United States, 657

F.3d at 1314] (distinguishing such cases), where the breach alleged was of

a confidentiality provision in an agreement defining the terms of an

alternative dispute resolution process, Higbie [v. United States], 778 F.3d

at 995, where the agreement concerned a criminal defendant’s release on

bail, Sanders [v. United States], 252 F.3d at 1331, and where a special

government cost-sharing agreement, rather than a procurement or sales

contract, was at issue, Rick’s Mushroom Serv., Inc. v. United States, 521

F.3d 1338, 1344-46 (Fed. Cir. 2008).

Rocky Mountain Helium, LLC v. United States, 841 F.3d at 1327 (emphasis in original).

Also, as a Judge of this court explained:

[A]greements that are “entirely concerned with the conduct of parties in a

criminal case, without a clear, unmistakable statement triggering monetary

liability, do not invoke Tucker Act jurisdiction.” Higbie v. United States, 778

F.3d 990, 993 (Fed. Cir. 2015) (citing Sanders v. United States, 252 F.3d

1329 (Fed. Cir. 2001)). Witness protection agreements related to criminal

cases fall into the same category. See Grundy v. United States, 2 Cl. Ct.

596, 597-98 (1983) (finding no jurisdiction where plaintiff alleged breach of

a witness protection agreement).

Marchena v. United States, 128 Fed. Cl. 326, 332 (2016) (finding that plaintiff’s breach of

a protection agreement claim, regarding government protection in a criminal case, did not

give rise to a government obligation to pay money and, thus, was not money-mandating

for jurisdictional purposes), aff’d, 702 F. App’x 988 (Fed. Cir. 2017); see also Speed v.

United States, 97 Fed. Cl. 58, 67, 68 n.12 (2011) (noting that the presumption of money

damages applies except in limited circumstances, including “agreements arising out of

the criminal justice system,” “the unique cost-share agreement at issue in Rick’s

18

Mushroom,”3 or “in cases in which the contract at issue explicitly provided alternative

remedies in the event of a breach”).

In addition, a court may require the moving party to prove that damages are

available when a contract “could reasonably be interpreted to involve purely nonmonetary

relief.” Higbie v. United States, 113 Fed. Cl. 358, 364 (2013), aff’d, 778 F.3d 990 (Fed.

Cir. 2015). In Higbie, the moving party brought a breach of contract claim, alleging that

the government breached a confidentiality provision of a mediation agreement and sought

$500,000.00 in compensation. See id. at 360. The government moved to dismiss the

breach of contract claim for lack of subject matter jurisdiction. See id. at 361. The United

States Court of Federal Claims noted that “there is a presumption that a damages remedy

is available in the civil context” for a breach of contract claim, but that, “where a contract

could reasonably be interpreted to involve purely nonmonetary relief, the Court may

require a plaintiff to render proof that the contract” could fairly be interpreted as requiring

monetary damages. See id. at 364. The United States Court of Federal Claims found that

because the mediation agreement in Higbie “did not address anything remotely

monetary,” and was “limited to the parties’ conduct during and after the mediation

process,” the burden was on the Higbie plaintiff to prove that the mediation agreement

contemplated monetary damages, which the court ultimately found the Higbie plaintiff did

not sufficiently carry. See id.

On appeal, the United States Court of Appeals for the Federal Circuit noted that

mediation agreement provided for the “exclusion of statements made during mediation

from proceedings unrelated to the mediation,” which was a “non-monetary remedy.”

Higbie v. United States, 778 F.3d at 994. The Federal Circuit explained that Tucker Act

jurisdiction may “be lacking if relief for breach of contract could be entirely non-monetary.

In such a case, it is ‘proper for the court to require a demonstration that the agreements

could fairly be interpreted as contemplating monetary damages in the event of breach.’”

Id. at 993 (quoting Holmes v. United States, 657 F.3d at 1315). The Federal Circuit found

the moving party had failed to demonstrate this court’s jurisdiction over its breach of

contract claim, having not pointed “to a single provision in the agreement indicating

money damages were contemplated.” Id. at 993.

3 The cost-share agreement at issue in Rick’s Mushroom was an agreement between the

government and Rick’s Mushrooms, Inc. for “implementing conservation practices in a

facility for recycling of mushroom waste.” Rick’s Mushroom Serv., Inc. v. United States,

521 F.23d at 1340. As discussed further below, the Federal Circuit in Rick’s Mushroom

upheld the United States Court of Federal Claims’ finding that the cost-share agreement

was not a procurement contract because “the agreement did not provide for transfer of

goods or services to the government, there was no evidence of a buyer-seller relationship,

and the government did not receive a direct benefit from the operation of the [spent

mushroom substrate] transfer facility.” Id. at 1344. The Federal Circuit in Rick’s Mushroom

held that the United States Court of Federal Claims did not have jurisdiction over the cost-

share agreement under the court’s jurisdiction contained at 28 U.S.C. § 1491(a)(2).

19

Based on a review of the 2009 MTW Agreement, which was attached to plaintiff’s

complaint, under the section of the 2009 MTW Agreement, titled “Termination and

Default,” the 2009 MTW Agreement lists the various monetary remedies available to the

government in the event that SAHA violates the 2009 MTW Agreement, such as requiring

“reimbursement by the [public housing] Agency[4] to HUD for amounts used in violation

of this Restated Agreement,” allowing HUD to “[r]educe/offset the Agency’s future

funding,” and allowing HUD to “[t]ake any other corrective or remedial action legally

available.” Following the government’s list of remedies, the 2009 MTW Agreement does

not specifically provide monetary or nonmonetary remedies available to SAHA but notes

that SAHA “may choose to terminate” the 2009 MTW Agreement “at any time,” at which

point SAHA “will then begin to transition out of MTW, and will work with HUD to establish

an orderly phase-out of MTW activities.” Possible monetary consequences flowing the

2009 MTW Agreement are not prohibited by the 2009 MTW Agreement should HUD

choose to reduce or terminate a public housing agency’s funding. In addition, defendant

in the above-captioned case has not alleged in any of its filings that the 2009 MTW

Agreement provides plaintiff with purely non-monetary relief which could potentially

overcome the well-established presumption that monetary damages are available in a

breach of contract claim. The absence of an explicit monetary remedy does not remove

the 2009 MTW Agreement from this court’s breach of contract jurisdiction. See Rocky

Mountain Helium, LLC v. United States, 841 F.3d at 1327; see also Greenhill v. United

States, 81 Fed. Cl. at 790. Moreover, plaintiff’s 2009 MTW Agreement is not in one of the

limited categories of contracts that fall outside of this court’s jurisdiction. See Rocky

Mountain Helium, LLC v. United States, 841 F.3d at 1327. For example, the 2009 MTW

Agreement does not “expressly disavow[] money damages,” it does not relate to criminal

activity, it does not define the terms of an alternative dispute resolution process, and it

does not provide a “special” cost-sharing arrangement between the government and

plaintiff. See id. Therefore, the presumption that money damages are available in a

breach of contract case applies in this case.

Monetary Damages or “Strings-Attached” Funds

Defendant argues that the presumption of monetary damages should not apply to

the 2009 MTW Agreement in this case because “SAHA demands relief that it is not

entitled to receive under the laws and agreements[5] governing its relationship with HUD.”

According to defendant:

Specifically, the Section 9(e) Operating Fund at issue here—like the

statutory scheme that the Federal Circuit determined to be non-money

mandating in Lummi—does not contemplate a free and clear transfer of

money from the Government to program participants.

4 The 2009 MTW Agreement defines “Agency” as SAHA.

5 It is unclear to which “agreements” defendant is referring. The only agreement that

plaintiff is alleging was breached is the 2009 MTW Agreement.

20

Rather, Congress intended only that SAHA and other PHAs receive Federal

funds that they could use solely for eligible activities with ongoing

supervision by HUD, i.e., with “strings attached,” as the Lummi court put it.

In such circumstances, this Court lacks subject-matter jurisdiction under the

Tucker Act to award money damages as a remedy for the alleged violation

of program formulae and procedures. Similarly, when a plaintiff shows only

a right to restricted use of further Federal funding under ongoing supervision

and a relationship with a Federal agency (to ensure proper use on statutorily

defined objects), a money damages remedy under the Tucker Act should

not be implied because it would be inappropriate to award unrestricted

money in place of statutorily restricted-use funding.

(emphasis in original). Defendant claims that the strings attached to plaintiff’s Section 9

operating subsidy are that the subsidy could be used “solely for eligible activities with

ongoing supervision by HUD.” As support, defendant relies heavily on Lummi Tribe of the

Lummi Reservation, Washington v. United States, 870 F.3d 1313 (Fed. Cir. 2017), cert.

denied, 139 S. Ct. 64 (2018) (Lummi), a case in which the United States Court of Appeals

for the Federal Circuit found that certain statutory provisions were not money-mandating

because the federal funds provided by the statutory provisions came with strings

attached, “including subsequent supervision and adjustment” by the government over the

funds at issue. See Lummi, 870 F.3d at 1318-19. Defendant also cites to the United States

Court of Appeals for the Federal Circuit’s decision in National Center for Manufacturing

Sciences v. United States, 114 F.3d 196 (Fed. Cir. 1997) (NCMS) and the United States

Supreme Court’s decision in Bowen v. Massachusetts, 487 U.S. 879 (1988).

Defendant further argues that plaintiff is seeking “specific performance of the MTW

Agreement as a means to obtaining a larger share of a particular yearly appropriation,”

not a monetary remedy. Defendant states that because this court “‘is not empowered to

grant’” requests for specific performance, plaintiff’s breach of contract claim should be

dismissed for lack of subject matter jurisdiction. (quoting NCMS, 114 F.3d at 198).

Plaintiff argues that it is not seeking “‘strings-attached’” funds but is seeking

“damages to compensate for the amount of funding it should have received but for HUD’s

breach of the MTW Agreement.” Plaintiff also argues that defendant’s reliance on Lummi,

NCMS, and Bowen “is misplaced for several reasons, largely due to the

mischaracterization of the nature of the relief sought by SAHA,” which is damages, not

“‘strings-attached’” funds. Regarding Lummi, plaintiff argues that it is “not controlling for

the simple fact that it did not involve any contractual agreement between the parties, but

rather relied entirely on the statutory framework.”

An “equitable remedy” is a “nonmonetary one such as an injunction or specific

performance,” Black’s Law Dictionary (10th ed. 2014), and attempts “to give the plaintiff

the very thing to which he was entitled.” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255,

262 (1999) (quoting Bowen v. Massachusetts, 487 U.S. at 895). In particular, “specific

performance” is “intended to produce as nearly as is practicable the same effect that the

performance due under a contract would have produced. It usually, therefore, orders a

21

party to render the performance that he promised.” Restatement (Second) of Contracts

§ 357 cmt. a (1981). Except under specific and limited provisions of the Tucker Act, this

court cannot entertain claims for equitable remedies. See Gonzales & Gonzales Bonds &

Ins. Agency, Inc. v. Dep’t of Homeland Sec., 490 F.3d 940, 943 (Fed. Cir. 2007) (“In order

for a claim to be brought under either the Tucker Act or the Little Tucker Act, the claim

must be for monetary relief; it cannot be for equitable relief, except in very limited

circumstances not at issue here.”); see also Massie v. United States, 226 F.3d 1318, 1321

(Fed. Cir. 2000) (“Except in strictly limited circumstances, see 28 U.S.C. § 1491(b)(2),

there is no provision in the Tucker Act authorizing the Court of Federal Claims to order

equitable relief.”); Sonoma Apartment Assocs. v. United States, 134 Fed. Cl. 90, 104

(2017) (“[E]xcept in a limited number of statutorily defined circumstances not relevant

here, the court cannot award nonmonetary equitable relief.” (footnote omitted)); Health

Republic Ins. Co. v. United States, 129 Fed. Cl. 757, 778 (2017).

The specific situations under which this court could order equitable relief include,

for example, military pay cases, in which this court may order specific forms of declaratory

relief that are “incident of and collateral to” a money judgment. See 28 U.S.C. § 1491(a)(2)

(“To provide an entire remedy and to complete the relief afforded by the judgment, the

court may, as an incident of and collateral to any such judgment, issue orders directing

restoration to office or position, placement in appropriate duty or retirement status, and

correction of applicable records, and such orders may be issued to any appropriate official

of the United States.”). This court also may entertain non-monetary disputes in cases

brought pursuant to the Contract Disputes Act, of 1978, codified, as amended, at 41

U.S.C. §§ 7101-7109 (2018) (CDA). See id. (noting that this court “shall have jurisdiction

to render judgment upon any claim” arising under the CDA, “including” “other

nonmonetary disputes”). The court also may provide equitable relief under its bid protest

jurisdiction. See id. at § 1491(b)(2) (“[T]he courts may award any relief that the court

considers proper, including declaratory and injunctive relief except that any monetary

relief shall be limited to bid preparation and proposal costs.”). This court also “shall have

jurisdiction to hear any suit for and issue a declaratory judgment under section 7428 of

the Internal Revenue Code of 1986 [26 U.S.C. § 7428 (2018)].” 28 U.S.C. § 1507 (2018).

Regarding a breach of contract claim brought pursuant to this court’s general

contract jurisdiction under 28 U.S.C. § 1491(a)(1), as plaintiff has brought in the above-

captioned case, the only remedy available in this court is monetary relief. See Sonoma

Apartment Assocs. v. United States, 134 Fed. Cl. at 104 (noting that “the court cannot

award nonmonetary equitable relief” on a breach of contract claim brought pursuant to 28

U.S.C. § 1491(a)(1)); see also FAS Support Servs., LLC v. United States, 93 Fed. Cl.

687, 694 (2010) (“The major difference between a protest brought under 28 U.S.C.

§ 1491(b)(1) and one brought pursuant to an implied contract under 28 U.S.C.

§ 1491(a)(1) is the equitable relief which is available for the section 1491(b)(1) protest,

but not for breach of the implied contract. Only monetary relief is available for breach of

the implied contract . . . .”); Pryor v. United States, 85 Fed. Cl. 97, 103 (2008) (“Apart from

ordering relief under 28 U.S.C. §§ 1491(a)(2) or (b)(2), the Court of Federal Claims has

no power to grant a declaratory judgment. The Court of Federal Claims cannot adjudicate

a complaint that seeks only declaratory relief.” (citation omitted)).

22

As the United States Court of Appeals for the Federal Circuit explained in Southern

California Federal Saving & Loan Association v. United States, 422 F.3d 1319, reh’g and

reh’g en banc denied (Fed. Cir. 2005),“[t]here are three forms of damages typically

awarded to compensate for breach of a contract,” in this court, which are,

expectation damages, restitutionary damages, and reliance damages.

Hansen Bancorp, Inc. v. United States, 367 F.3d 1297, 1308 (Fed. Cir.

2004). Expectation damages give the non-breaching party the benefit of his

bargain by putting him in as good a position as he would have been in had

the contract been performed. Bluebonnet Savings Bank, F.S.B. v. United

States, 266 F.3d 1348, 1355 (Fed. Cir. 2001). “Expectation damages are

recoverable provided they are actually foreseen or reasonably foreseeable,

are caused by the breach of the promisor, and are proved with reasonable

certainty.” Id. Restitutionary damages restore the non-breaching party to the

position he would have been in had there never been a contract to breach.

Landmark Land Co., Inc. v. United States, 256 F.3d 1365, 1372 (Fed. Cir.

2001). Such damages, however, are not recoverable for actions taken

voluntarily, beyond the obligations of the contract. Id. at 1375 (“the law is

well settled . . . that in order to be compensable as restitution, the plaintiff’s

contribution must have been made in performance of its contractual

obligations”). Reliance damages are damages designed to compensate a

plaintiff for foreseeable loss caused by reliance on the contract. Id. at 1369.

S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d at 1334; see also Glendale

Fed. Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001) (noting that if a

party cannot prove expectation damages, then the law provides for restitution damages,

the objective of which is to “restore the parties to the status quo ante,” i.e., the “‘situation

in which they found themselves before they made the contract’” (quoting Restatement

(Second) of Contracts § 384 cmt. a (1981))); Stovall v. United States, 94 Fed. Cl. 336,

345 (2010) (“Three types of damages can be awarded to compensate for a breach of

contract: expectation, restitutionary, and reliance.”).

Expectation damages, at issue in this case, are designed to place the non-

breaching party in the position it should have been had the breach not occurred. See

Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. and Urban Dev., 480 F.3d 1116,

1126-27 (Fed. Cir. 2007) (noting that if the appellant “were to obtain a judgment for breach

of contract, the Court of Federal Claims could order payment of the insurance proceeds

as a form of expectation damages, giving Suburban [appellant] the benefits it expected

to receive had the Government not breached the insurance contract” (citing Glendale Fed.

Bank, FSB v. United States, 239 F.3d at 1380); Ind. Mich. Power Co. v. United States,

422 F.3d 1369, 1373 (“The remedy for breach of contract is damages sufficient to place

the injured party in as good a position as it would have been had the breaching party fully

performed.” (citing San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557,

1562, reh’g denied (Fed. Cir. 1997)), reh’g denied (Fed. Cir. 2005); Bluebonnet Sav.

Bank, F.S.B. v. United States, 266 F.3d at 1355 (“‘One way the law makes the non-

23

breaching party whole is to give him the benefits he expected to receive had the breach

not occurred.’” (quoting Glendale Fed. Bank, FSB v. United States, 239 F.3d at 1380));

Rebish v. United States, 134 Fed. Cl. 308, 320 (2017) (“To make the non-breaching party

whole, it is entitled to recover its reasonably foreseeable expectation damages for a

breach of contract, but only where such damages ‘are caused by the breach of the

promisor.’” (quoting Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d at 1355));

DMS Imaging, Inc. v. United States, 123 Fed. Cl. 645, 655 (2015) (“The non-breaching

party is entitled to expectation damages, i.e. relief ‘sufficient to place the injured party in

as good a position as he or she would have been had the breaching party fully

performed.’” (emphasis in original) (quoting San Carlos Irrigation & Drainage Dist. v.

United States, 111 F.3d at 1563)).

Turning first to defendant’s claim that plaintiff is seeking “specific performance,”

Count I of the complaint in the above-captioned case, entitled “BREACH OF THE MTW

AGREEMENT,” alleges a breach of the “MTW Agreement,” which, according to plaintiff,

and which defendant did not contest in any of its filings currently before the court, is a

“valid, enforceable agreement between HUD and SAHA.” (capitalization in original).

Count I alleges:

HUD breached the Anti-Discrimination Provision in Section II.A of the MTW

Agreement by reducing SAHA’s operating subsidy in the manner set forth

above solely because SAHA is a MTW agency (specifically through HUD’s

policy requiring reduction of the operating subsidies of MTW agencies,

regardless of whether the agency had excess reserves, while considering

the existence of excess reserves in making the same determination for non-

MTW agencies).

Count I of the complaint also alleges that, “[a]s a result of HUD’s breach,” plaintiff “was

damaged in the amount of at least $2,874,719 and is entitled to recover same.” The

complaint states that plaintiff “brings this action to recover the difference in the 2012

operating subsidy SAHA actually received and the amount it should have received had

HUD treated SAHA in the same manner as non-MTW agencies, as required by the

applicable MTW Agreement.” Plaintiff, therefore, is seeking expectation damages

pursuant to Count I of its complaint. Nowhere in the complaint does plaintiff request

specific performance of the 2009 MTW Agreement. Therefore, contrary to defendant’s

position, plaintiff’s breach of contract claim is seeking compensatory monetary damages

in the amount of $2,874,719.00 in order to place plaintiff in the position it should have

been had the breach not occurred.

Turning to defendant’s argument that plaintiff is seeking strings-attached funds,

“as a general rule, unless otherwise provided by law, agency operating appropriations are

not available to pay judgments against the United States.” GAO Redbook at 14-31. This

rule “preserved for Congress the opportunity to consider the court’s decision and refuse

to appropriate funds to pay any judgments with which Congress disagreed,” and, thus,

when Congress “declined to appropriate funds, the judgment creditor was left with a

judicially approved claim against the United States but received no payment for it.” Id.

24

This rule “was (and still is) part and parcel of the power of the purse. The courts

adjudicate, but only Congress can appropriate.” Id.

Congress, however, eventually became “burden[ed]” with requests to process

specific appropriations to pay final judgments, and, therefore, created a “permanent,

indefinite appropriation” of funds, codified at 31 U.S.C. § 1304 (2018), known as the

“Judgment Fund,” to pay final monetary judgments entered against the federal

government in court. See id.; see also Moda Health Plan, Inc. v. United States, 892 F.3d

1311, 1326 (Fed. Cir. 2018) (“The Judgment Fund is a general appropriation of

‘[n]ecessary amounts’ in order ‘to pay final judgments’ and other amounts owed via

litigation against the government, subject to several conditions.” (brackets in original)

(quoting 31 U.S.C. § 1304)), petition for cert. filed, Case No. 18-1028 (Feb. 4, 2019); GAO

Redbook at 14-61 (“Most court judgments against the United States are paid from the

Judgment Fund, a permanent, indefinite appropriation established by 31 U.S.C.

§ 1304.”). The Judgment Fund statute provides, in relevant part, that:

(a) Necessary amounts are appropriated to pay final judgments, awards,

compromise settlements, and interest and costs specified in the judgments

or otherwise authorized by law when--

(1) payment is not otherwise provided for;

(2) payment is certified by the Secretary of the

Treasury; and

(3) the judgment, award, or settlement is payable--

(A) under section 2414, 2517[6], 2672, or

2677 of title 28;

(B) under section 3723 of this title;

(C) under a decision of a board of

contract appeals; or

(D) in excess of an amount payable from

the appropriations of an agency for a

6The statute at 28 U.S.C. § 2517 (2018), the section referenced in the above-quoted

portion of the Judgment Fund statute, states:

(a) Except as provided by chapter 71 of title 41, every final judgment

rendered by the United States Court of Federal Claims against the United

States shall be paid out of any general appropriation therefor, on

presentation to the Secretary of the Treasury of a certification of the

judgment by the clerk and chief judge of the court.

(b) Payment of any such judgment and of interest thereon shall be a full

discharge to the United States of all claims and demands arising out of the

matters involved in the case or controversy, unless the judgment is

designated a partial judgment, in which event only the matters described

therein shall be discharged.

28 U.S.C. § 2517.

25

meritorious claim under section 2733 or

2734 of title 10, section 715 of title 32, or

section 20113 of title 51.

31 U.S.C. § 1304(a). Further, payment from the Judgment Fund “contemplates a money

judgment, that is, a judgment directing the government ‘to pay final judgments, awards,

compromise settlements, and interests and costs,’ as opposed to a judgment directing

the government to perform some specific action.” GAO Redbook at 14-38 (quoting 31

U.S.C. § 1304(a)).

In Count I of its complaint, plaintiff seeks a monetary award of compensatory

damages in the amount of $2,874,719.00 for the government’s alleged breach of the 2009

MTW Agreement. Assuming plaintiff is successful on the merits of its breach of contract

claim and judgment is entered in plaintiff’s favor, plaintiff’s damages award would be paid

from the Judgment Fund, which would not require the court to order defendant to release

allegedly strings-attached funds from HUD’s Section 9 Operating Fund. Even if the court

could order defendant to release Section 9 operating subsidies, as defendant notes in its

reply in support of its motion to dismiss, “HUD has exhausted Congress’s appropriation

to pay Operating Fund subsidies for calendar year 2012. Indeed, the insufficiency of that

appropriation spawned this and other suits[7] challenging HUD’s calculation and payment

of Operating Fund subsidies to PHAs in 2012.” The parties in the above-captioned case

also agree that, if this court were to find in favor of plaintiff on Count I of the complaint,

the Judgement Fund, and not Section 9’s Operating Fund, would be available to pay

plaintiff’s damages claim. Defendant concedes in its reply in support of its motion to

dismiss that “any judgment in SAHA’s favor would be paid out of the Judgment Fund, not

the Operating Fund.” Plaintiff states in its sur-reply to the government’s motion to dismiss

that, “[a]s HUD points out, any judgment would be paid out of the Judgment Fund and

would not require injunctive relief mandating appropriation of funds or require HUD to

alter its future disbursement of funds.” Therefore, plaintiff is not seeking the repayment of

alleged strings-attached funds from HUD’s 2012 Section 9 Operating Fund, but an award

of monetary damages to be paid from the Judgment Fund.

Also, defendant’s reliance on Lummi, NCMS, and Bowen for the proposition that

plaintiff cannot recover “unrestricted money damages” for defendant’s alleged breach of

7 As previously noted, a public housing agency brought suit in this court alleging that the

government’s reduction of MTW agencies’ Section 9 operating subsidy for 2012 was in

violation of its MTW agreement and the 2012 Appropriations Act, which are two of the

same claims that plaintiff asserts in the above-captioned case. See Hous. Auth. of City of

New Haven v. United States, 140 Fed. Cl. at 775. In addition, as discussed above, various

plaintiffs brought suit in this court alleging that the government’s reduction of the Section

9 operating subsidy for 2012 was across the board, for MTW and non-MTW agencies

alike, a violation of their annual contribution contracts, a different housing contract than

the MTW Agreement at issue in this case. See Boaz Hous. Auth. v. United States, 141

Fed. Cl. at 79; see also Pub. Hous. Auths. Dirs. Ass’n. v. United States, 130 Fed. Cl. at

522.

26

the 2009 MTW Agreement is misplaced. In Lummi, the moving party brought a statutory

claim for payment pursuant to the Native American Housing Assistance and Self-

Determination Act of 1996, codified at 25 U.S.C. §§ 4101-4243, (NAHASDA), which

“established an annual block grant system, whereby Indian tribes receive direct funding

in order to provide affordable housing to their members.” Lummi v. United States, 870

F.3d at 1315. The amount of funding which a tribe could receive in Lummi was established

“according to a regulatory formula based on several factors.” Id. The United States Court

of Appeals for the Federal Circuit found that the moving party’s statutory claim fell outside

of the United States Court of Federal Claim’s subject matter jurisdiction because the

NAHASDA was not money-mandating. See id. at 1319. According to the Lummi court:

Under NAHASDA, the Tribes are not entitled to an actual payment of money

damages, in the strictest terms; their only alleged harm is having been

allocated too little in grant funding. Thus, at best, the Tribes seek a

nominally greater strings-attached disbursement. But any monies so

disbursed could still be later reduced or clawed back. See 25 U.S.C.

§ 4161(a)(1). And any property acquired with said monies would be “held in

trust” by the Tribes, “as trustee for the beneficiaries” of NAHASDA. 2 C.F.R.

§ 200.316; see generally 24 C.F.R. §§ 85.1, 1000.26. The Tribes are even

restricted with respect to the particular bidding and bond terms they may

use for, say, housing construction contracts. See 2 C.F.R. § 200.325; 24

C.F.R. § 1000.26.

* * *

Here, the underlying claim is not for presently due money damages. It is for

larger strings-attached NAHASDA grants—including subsequent

supervision and adjustment—and, hence, for equitable relief. Indeed, any

such claim for relief under NAHASDA would necessarily be styled in the

same fashion; the statute does not authorize a free and clear transfer of

money. Accordingly, the Claims Court erred in finding NAHASDA to be

money mandating.

Lummi v. United States, 870 F.3d at 1318-19 (capitalization and emphasis in original).

Although plaintiff in the above-captioned case is alleging that it was improperly

underpaid federal funding in connection with the government’s federal housing program,

similar to the appellants in Lummi, the similarities between this case and Lummi end

there. In Lummi, the United States Court of Appeals for the Federal Circuit was

addressing whether the NAHASDA was money-mandating for jurisdictional purposes.

The issue currently before the court, however, is whether a contract, and not a statute, is

money-mandating. Although defendant claims in its reply in support of its motion to

dismiss that this is a “distinction without a difference,” defendant overlooks a critical point.

The jurisdictional analysis for determining whether a statute is money-mandating versus

whether a contract is money-mandating is not the same. Unlike with a statute, for which

the court must “always ask” whether the statute “can be fairly interpreted as mandating

27

compensation,” see Eastport S.S. Corp. v. United States, 372 F.2d at 1009, a contract is

afforded a well-established presumption that monetary damages are available, and this

court’s jurisdictional inquiry looks to whether there is sufficient evidence to rebut such a

presumption, such as a contractual provision explicitly precluding monetary damages.

See LaBatte v. United States, 899 F.3d at 1378; see also Rocky Mountain Helium, LLC

v. United States, 841 F.3d at 1327; Higbie v. United States, 778 F.3d at 993. Defendant’s

reliance on Lummi, therefore, is misplaced.

Defendant also cites to NCMS, claiming that this “case is no different than NCMS”

because “[a]dditional action by the parties or the Court would be required to ensure that

SAHA does not receive a ‘naked money judgment,’” which according to defendant is a

judgment that comes with no “‘prospective’ strings” attached to the “use of that judgment.”

(quoting NCMS, 114 F.3d at 202). In NCMS, the National Center for Manufacturing

Sciences (NCMS) filed a complaint in the United States District Court for the District of

Columbia pursuant to the Administrative Procedures Act, Pub. L. No. 79-404, 60 Stat.

237 (1946), currently codified at 5 U.S.C. §§ 701-706 (2018) (APA), seeking an order

directing the government to release the full amount of funds appropriated to NCMS under

the Department of Defense Appropriations Act for Fiscal Year 1994, Pub. L. No. 103-139,

107 Stat. 1418 (1993) (1994 Appropriations Act). See NCMS v. United States, 114 F.3d

at 197-98. Within the 1994 Appropriations Act, Congress had explicitly appropriated funds

to the appellant by stating “[t]hat not less than $40,000,000 of the funds appropriated in

this paragraph shall be made available only for the National Center for Manufacturing

Sciences.” Id. at 198 (internal quotation marks omitted). According to the 1994

Appropriations Act, the Air Force would receive the funds and ultimately was to distribute

them to NCMS through a “Cooperative Agreement.” See id. The Cooperative Agreement

“noted that the government’s share for full performance of the award was estimated at a

maximum of $40,000,000, but that only $24,125,000 was currently available and allotted

at the time of the award.” Id. (internal quotation marks omitted). The Air Force ultimately

only distributed $24,125,000.00 of the $40,000,000.00 provided for in the 1994

Appropriations Act, leaving $15,875,000.00 undistributed. See id. NCMS’s District Court

complaint sought “an order directing the Air Force to release the remaining funds

appropriated for fiscal year 1994,” and brought, in addition to other claims, a claim seeking

“specific performance of the Cooperative Agreement.” Id. The government filed a motion

seeking to transfer the case to United States Court of Federal Claims and the federal

District Court granted the motion, stating that NCMS’s claim for specific performance of

the Cooperative Agreement between NCMS and the government was actually “a contract

claim against the government in excess of $10,000” over which “there is no District Court

jurisdiction” and instead should have been brought under the Tucker Act in the United

States Court of Federal Claims. Id. (internal quotation marks omitted).

On interlocutory appeal, the United States Court of Appeals for the Federal Circuit

determined that NCMS’s contract claim for specific performance of the Cooperative

Agreement was a claim that should have remained before a federal District Court under

APA review and should not have been transferred to the United States Court of Federal

Claims. In so deciding, the NCMS court analyzed whether the NCMS’s claim met two

requirements for federal District Court jurisdiction pursuant to the APA. See id. at 199.

28

According to the NCMS court, a federal District Court has APA jurisdiction over claims

against the government arising in (1) “‘[a]n action in a court of the United States seeking

relief other than money damages,’” and (2) “only ‘if there is no other adequate remedy in

a court.’” See id. (quoting 5 U.S.C. §§ 702, 704 (1994)). “Thus, if a Tucker Act suit in the

Court of Federal Claims provides an adequate remedy, APA review in the district court is

not available.” NCMS v. United States, 114 F.3d at 199.

Regarding the first requirement for APA jurisdiction, that the moving party seek

relief “other than money damages,” the NCMS court noted that, although “[s]ome portions

of NCMS’s complaint,” which the NCMS court referred to as “inartful[ly] draft[ed],” suggest

“that NCMS seeks a ‘naked money judgment’ for $15,875,000,” NCMS is actually

demanding “the release of the remaining funds referred to in the Appropriations Act,”

which “is not a demand for ‘money damages’ within the meaning of the exception to the

APA’s waiver of sovereign immunity.” See id. at 197, 201. According to the NCMS court,

NCMS’s contract claim seeking “specific performance of the Cooperative Agreement

between NCMS” and the government is “not seeking money in compensation for losses

that it has suffered or will suffer as a result of the withholding of those funds” but instead

“is seeking funds to which it claims it is entitled under a statute.” See id. at 200.

Regarding the APA’s second requirement for United States District Court

jurisdiction, that there be “no other adequate remedy in a court,” the NCMS court

explained that no other adequate remedy existed outside of a United States District Court,

and, consequently, NCMS’s claim for specific performance should not have been

transferred to the United States Court of Federal Claims. See id. at 202. The NCMS court

explained:

Because only $24,125,000 was allotted to the Cooperative Agreement,

NCMS’s claim would require that the remaining $15,875,000 be obligated

and made available to NCMS either by supplementation of the Cooperative

Agreement or by formation of a new agreement. Thus, NCMS is in effect

asking that the Air Force be required to expand the existing contractual

relationship or to create a new one to cover the remaining appropriated but

unobligated funds.

See id. According to the NCMS court, “[t]he Tucker Act, however, does not empower the

Court of Federal Claims to grant that kind of equitable relief,” and, therefore, the “remedy

provided by a Tucker Act suit in the Court of Federal Claims does not serve as the ‘other

adequate remedy in a court’” that “would be sufficient to divest the district court of the

authority to conduct APA review in this case.”8 Id.

8 Although the NCMS court found that the Tucker Act could not provide an adequate

remedy for the NCMS appellant’s breach of contract claim, the NCMS appellant, however,

was seeking an equitable remedy for its breach of contract claim, not monetary damages,

which is a form of relief that the Tucker Act can provide in a breach of contract case and

the remedy which plaintiff seeks in the above-captioned case.

29

Unlike in NCMS, this court is tasked with analyzing whether plaintiff’s breach of

contract claim satisfies the jurisdictional requirement under the Tucker Act, not the APA,

which was at issue in NCMS. As previously indicated, the Tucker Act provides this court

with jurisdiction over a breach of contract claim seeking monetary damages from the

government. See 28 U.S.C. § 1491(a)(1). In addition, SAHA comes armed in this court

with the well-established presumption that monetary damages are available in the event

of a breach of contract. See LaBatte v. United States, 899 F.3d at 1378; see also Rocky

Mountain Helium, LLC v. United States, 841 F.3d at 1327; Higbie v. United States, 778

F.3d at 993.

Also, the nature of the relief sought by the NCMS appellant differs from the nature

of the relief sought by the plaintiff in the above-captioned case. In NCMS, the appellant

specifically sought “specific performance” of a “Cooperative Agreement” and requested

“an order directing the Air Force to release the remaining funds appropriated for fiscal

year 1994.” NCMS v. United States, 114 F.3d at 198. The NCMS appellant noted that its

specific performance claim was “premised on rights stemming from the Appropriations

Act, not on rights stemming from a contract between NCMS and the government.” Id. The

NCMS appellant also conceded that its request for a “release” of appropriated funds was

not the equivalent of seeking an “an unconditional payment” of monetary damages

because “any additional funds released under the Appropriations Act would be subject to

restrictions and constraints reflected either in a supplement to the Cooperative Agreement

or in a new agreement between NCMS and the Air Force.” See id. at 198-99.

Contrastingly, as determined above, the plaintiff in the above-captioned case has

not requested “specific performance” of its 2009 MTW Agreement, but compensatory

monetary damages for the government’s alleged breach of the 2009 MTW Agreement. In

addition, plaintiff has specifically tied its breach of contract claim to the 2009 MTW

Agreement, not on “rights stemming from” an appropriations act. As previously noted,

assuming plaintiff is ultimately successful on the merits of its breach of contract claim in

this court, payment of plaintiff’s damages award would be made from the Judgment Fund,

which provides for the payment of monetary awards included in federal court issued

judgments entered against the government. See 31 U.S.C. § 1304(a). Thus, NCMS does

not assist defendant in overcoming the presumption that money damages are available

for plaintiff’s breach of contract claim.

Defendant also cites to Bowen for its proposition that plaintiff cannot recover an

unrestricted award of money damages for its breach of contract claim. In Bowen, the

United States Supreme Court considered whether federal District Courts possessed

jurisdiction to review “a final order of the Secretary of Health and Human Services refusing

to reimburse a State for a category of expenditures under its Medicaid program.” Bowen

v. Massachusetts, 487 U.S. at 882. The Bowen court explained that, as part of the federal

government’s Medicaid program, the Department of Health and Human Services (HHS)

provides “‘financial assistance to participating States to aid them in furnishing health care

to needy persons.’” Id. at 883 (quoting Harris v. McRae, 448 U.S. 297, 308 (1980)). The

States, in turn, develop their “own program describing conditions of eligibility and covered

services.” Id. If the Secretary of HHS believes that “a State’s expenditures do not comply

30

with” federal law or regulations, the Secretary of HHS “may ‘disallow’ reimbursement for

‘any item or class of items’” by issuing a “disallowance order,” which is subject to judicial

review. Id. at 885 (quoting 42 U.S.C. § 1316(d) (1988)).

The State of Massachusetts was the moving party in Bowen, which had

participated in the “Medicaid program continuously since 1966,” and provided, among

other services, “medical and rehabilitative services to patients in intermediate care

facilities for the mentally retarded.” Bowen v. Massachusetts, 487 U.S. at 885-86.

Because these services were performed jointly by the Massachusetts State Departments

of Mental Health and Education, as opposed to solely by the Massachusetts State

Department of Mental Health, the “Regional Administrator” for “Health Care Financing

Administration,” an office within HHS, notified the State of Massachusetts that he had

disallowed $6,414,964.00 in federal reimbursement for such services for the period “July

1, 1978 to December 31, 1980.” Id. at 886-87. HHS’s “Departmental Grant Appeals

Board” (Board), affirmed the disallowance decision on May 31, 1983. Id. at 887. The

Health Care Financing Administration disallowed a second claim for the same category

of services in the amount of $4,908,994.00 for the period January 1, 1981 through June

30, 1982. See id. at 887-88.

The State of Massachusetts filed a complaint in the United States District Court for

the District of Massachusetts which “requested declaratory and injunctive relief and

specifically asked the District Court to ‘set aside’ the Board’s order” and release the

remaining Medicare reimbursement funds it allegedly was denied under the first

disallowance claim. See id. at 888. In its first decision, the United States District Court

did not address any jurisdictional issues or order any monetary payment by the

government, and “simply reversed” the government’s decision disallowing the

reimbursement claims. See id. In a separate decision regarding the government’s second

disallowance claim, the United States District Court entered judgment, based on the

analysis included in its first decision. See id. In a consolidated appeal, the United States

Court of Appeals to the First Circuit decided that the District Court had no jurisdiction to

order the Secretary of HHS to pay money to the State of Massachusetts, but that the

United States District Court had jurisdiction to review the “Board’s disallowance decision

and to grant declaratory and injunctive relief.” Id. at 889.

The Bowen parties each filed a petition for certiorari, and the United States

Supreme Court granted both petitions. See id. at 890-91. The federal government argued

that the State of Massachusetts’ claim for “declaratory and injunctive relief” did not satisfy

two conditions under the APA for federal District Court jurisdiction. See id. at 891.

According to the federal government, under 5 U.S.C. § 702 (1988) of the APA, which

allows an action to be maintained in United States District Court so long as the action is

“‘seeking relief other than money damages,’” the State of Massachusetts’ claim was not

seeking relief other than money damages. Id. at 891, 893 (quoting 5 U.S.C. § 702). The

federal government then argued that, even if the claim satisfied § 702, it did not satisfy

5 U.S.C. § 704 (1988) of the APA, which allows relief to be provided in a United States

District Court when “‘there is no other adequate remedy in any court.’” Id. at 902 n.32

31

(quoting 5 U.S.C. § 704). The State of Massachusetts argued that the federal District

Court “had jurisdiction to grant complete relief.” Id. at 890-91.

The Bowen court held that jurisdiction over the State of Massachusetts’ claim was

properly found in the United States District Court under APA review rather than the United

States Claims Court.9 The Bowen court explained that the State of Massachusetts’ claim

for “declaratory and injunctive relief” satisfied § 702 of the APA because the claim was

not seeking an award of “money damages.” See id. at 893. The Bowen court noted that,

“insofar as the complaints sought declaratory and injunctive relief, they were certainly not

actions for money damages,” and “more importantly, even the monetary aspects of the

relief that the State sought are not ‘money damages’ as that term is used in the law.” Id.

The Bowen court explained:

Our cases have long recognized the distinction between an action at law for

damages—which are intended to provide a victim with monetary

compensation for an injury to his person, property, or reputation—and an

equitable action for specific relief—which may include an order providing for

the reinstatement of an employee with backpay, or for “the recovery of

specific property or monies, ejectment from land, or injunction either

directing or restraining the defendant officer’s actions.” Larson v. Domestic

& Foreign Commerce Corp., 337 U.S. 682, 688, 69 S. Ct. 1457, 1460, 93 L.

Ed. 1628 (1949) (emphasis added). The fact that a judicial remedy may

require one party to pay money to another is not a sufficient reason to

characterize the relief as “money damages.”

Bowen v. Massachusetts, 487 U.S. at 893-94 (emphasis in original). The Bowen court

stated:

The State’s suit to enforce § 1396b(a) of the Medicaid Act, which provides

that the Secretary “shall pay” certain amounts for appropriate Medicaid

services, is not a suit seeking money in compensation for the damage

sustained by the failure of the Federal Government to pay as mandated;

rather, it is a suit seeking to enforce the statutory mandate itself, which

happens to be one for the payment of money.

Bowen v. Massachusetts, 487 U.S. at 900 (emphasis in original).

The Bowen court also explained that the State of Massachusetts’ claim for

“declaratory and injunctive” relief was not barred by § 704 of the APA, which precludes

federal District Court review if there is an adequate remedy available in another court.

See Bowen v. Massachusetts, 487 U.S. at 901-08. The Bowen court noted that “[t]he

Claims Court does not have the general equitable powers of a district court to grant

prospective relief,” and stated:

9 Prior to 1992, this court was referred to as the “United States Claims Court.” In 1992,

the court’s name was changed to the “United States Court of Federal Claims.”

32

As the facts of these cases illustrate, the interaction between the State’s

administration of its responsibilities under an approved Medicaid plan and

the Secretary’s interpretation of his regulations may make it appropriate for

judicial review to culminate in the entry of declaratory or injunctive relief that

requires the Secretary to modify future practices. We are not willing to

assume, categorically, that a naked money judgment against the United

States will always be an adequate substitute for prospective relief fashioned

in the light of the rather complex ongoing relationship between the parties.

Id. at 905. The Bowen court also explained that the United States Claims Court’s ability

to “entertain” a disallowance claim by the federal government would be “doubtful.” See id.

This is because if a State retained the amount covered by the disallowance during the

Board’s review, which a State is allowed to do by statute, the State “will not be able to file

suit in the Claims Court until after the disallowance is recouped from a future quarterly

payment.” Id. at 906. The Bowen court explained that such delay for filing suit may not be

ideal because a State has to plan ahead for its programs, and, therefore, a State may

want to file suit “as promptly as possible,” and seek “a motion for a preliminary injunction,”

following the Board’s disallowance decision. See id. at 907. The Bowen court stated that

“[a] district court has jurisdiction both to grant such relief and to do so while the funds are

still on the State’s side of the ledger,” and that the “Claims Court can neither grant

equitable relief,” nor “act in any fashion so long as the Federal Government has not yet

offset the disallowed amount from a future payment.” Id.

Bowen, however, is inapplicable to the facts of the above-captioned case. As in

NCMS, the focus in Bowen was whether the moving party’s claim satisfied the

jurisdictional analysis under the APA. Further, the claim at issue in Bowen was for

“declaratory and injunctive relief” and did not stem from a contract between the moving

party and the government. Contrastingly, the claim at issue in the above-captioned case

seeks monetary damages and stems from a contract between the parties, the 2009 MTW

Agreement.

Defendant, nonetheless, argues in its motion to dismiss that Bowen is instructive

because:

In Bowen, the Supreme Court drew a stark distinction between laws that

“attempt to compensate a particular class of persons for past injuries or

labors,” which give rise to a remedy in money damages, and “the statutory

mandate of a [F]ederal grant-in-aid program [that] directs the Secretary to

pay money . . . not as compensation for a past wrong, but to subsidize future

expenditures.” The Court opined that Tucker Act jurisdiction over the latter

type of law was unlikely.

(citation omitted). According to defendant, plaintiff in the above-captioned case is not

seeking compensation for a past wrong but “in effect demands” Section 9 operating

subsidies. The Bowen court, however, made the distinction between claims requesting

33

compensation for a past wrong and claims seeking reimbursement within the context of

defining “money damages” under § 702 of the APA. Whether a claim seeks “money

damages,” as understood under § 702 of APA, and as the Bowen court itself

acknowledged, is not dispositive of whether this court has jurisdiction over the same claim

under the Tucker Act. The Bowen court stated:

There are, of course, many statutory actions over which the Claims Court

has jurisdiction that enforce a statutory mandate for the payment of money

rather than obtain compensation for the Government’s failure to so pay. The

jurisdiction of the Claims Court, however, is not expressly limited to actions

for “money damages,” whereas that term does define the limits of the

exception to § 702.

Bowen v. Massachusetts, 487 U.S. at 901 n.31 (internal references omitted).

Furthermore, as previously noted, plaintiff in the above-captioned case is seeking

compensation for a past wrong allegedly committed by HUD, not the repayment of

Section 9 operating subsidies. As plaintiff’s complaint alleges, plaintiff is seeking

compensation in the amount of $2,874,719.00 in order to make up for the government’s

alleged past failure to comply with the terms of the 2009 MTW Agreement. Thus, contrary

to defendant’s position, Bowen does not assist the court in determining whether

defendant has overcome the well-established presumption that monetary damages are

available in a breach of contract claim.

Interpretation of Section II.A of the 2009 MTW Agreement

Defendant then argues that the presumption of monetary damages does not apply

in this case because “any judicial interpretation of the undiminished assistance

requirement” contained in Section II.A. of the 2009 MTW Agreement, “be it statutory or

contractual—would constrain the ‘cooperative, ongoing relationship between [SAHA] and

[HUD] in the allocation and use of [Section 8 and Section 9] funds’ for as long SAHA

participates in the MTW demonstration.” (alterations in original) (quoting NCMS, 114 F.3d

at 201). According to defendant, “[c]onsequently, the Court cannot provide an adequate

remedy under the Tucker Act for the alleged wrong in this case.” (emphasis in original)

(internal quotation marks omitted). Defendant also argues that the court’s interpretation

of the undiminished assistance provision “embodied in both the MTW Statute and SAHA’s

MTW Agreement,” “would not only affect the prior payment of Section 9 subsidies

disputed here, but would also constrain future payments of Section 8 and Section 9

subsidies that SAHA and other MTW demonstration participants might challenge later.”

Plaintiff argues that “HUD’s argument that an interpretation of the ‘undiminished

assistance’ provision would affect the future relationship” is “groundless.” In this case,

plaintiff’s disputes HUD’s payment of Section 9 operating subsidies for 2012. According

to plaintiff, “[t]he decision in this case would merely act as res judicata for this particular

issue and not extend to other aspects of the agreement or the parties’ future relationship.”

(emphasis in original).

34

Defendant’s emphasis on the court’s potential interpretation of the “undiminished

assistance provision” contained at Section II.A of the 2009 MTW Agreement distorts the

current issue before the court, which is whether this court has jurisdiction over plaintiff’s

breach of contract claim. The possible consideration of the court’s interpretation of

Section II.A of the 2009 MTW Agreement in the future does not answer the question of

whether monetary damages are available under the 2009 MTW Agreement and whether

jurisdiction for plaintiff’s Count I is properly before this court. In this Opinion, the court is

solely considering defendant’s motion to dismiss. In addition, “the fact that the court may

have to interpret an Act or make other determinations regarding principles of federal law

in order to resolve the contract claim does not deprive the Court of Federal Claims of

jurisdiction to decide that claim.” Alvarado Hosp., LLC v. Price, 868 F.3d at 995 (noting

that “[w]hether or not” the appellant was correct that determining the scope of the contract

would require the court to interpret the Medicare Act and would require the parties to

“compare” certain documents “does not remove jurisdiction from the Court of Federal

Claims”); see also Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1367

(Fed. Cir. 1998) (noting “the fact that the court may have to interpret the Tribal Consent

Act or make other determinations regarding principles of state and federal law in order to

resolve the contract claim does not deprive the court [of Federal Claims] of jurisdiction to

decided that claim”). Therefore, even if the court were required to interpret Section II.A of

the 2009 MTW Agreement in the future, the court’s interpretation of this contract provision

does not make it improper for plaintiff to pursue its breach of contract claim in this court’s

jurisdiction.

Furthermore, defendant’s concern that this court’s interpretation of Section II.A of

the 2009 MTW Agreement would affect the ongoing relationship between HUD and

plaintiff is misguided. Plaintiff’s breach of contract claim seeks damages related to the

government’s allegedly wrongful underpayment of Section 9 operating subsidies for 2012.

Plaintiff does not allege in its complaint in the above-captioned case that the government

has acted wrongfully following 2012. The issue before the court is whether the

government breached the 2009 MTW Agreement only in 2012. Contrary to defendant’s

position, the court’s resolution of plaintiff’s breach of contract claim would not “constrain”

the ongoing relationship between HUD and plaintiff.

Jurisdiction over Non-Commercial Contracts

Defendant argues that the presumption of monetary damages should not apply to

the 2009 MTW Agreement because it is not the “‘kind of’” contract that “‘comes within the

core of the strong background rule making monetary remedies available for contract

breaches even when there is no express contract provision so stating.’” (quoting Rocky

Mountain Helium, LLC v. United States, 841 F.3d at 1327). Again, quoting Rocky

Mountain Helium, LLC v. United States, 841 F.3d at 1327, defendant argues that the

“MTW Agreement concerns the administration of public benefits and cannot fairly be

characterized as ‘a commercial contract’ that concerns ‘a commercial arrangement.’”

According to defendant, the 2009 MTW Agreement instead is “more akin” to a cooperative

agreement pursuant to 31 U.S.C. § 6305 (2018), a statute regarding the executive

branch’s use of cooperative agreements and which constitutes part of the Federal Grant

35

and Cooperative Agreement Act of 1997 (FGCAA), codified at 31 U.S.C. § 6301 et seq.

(2018). According to defendant, “this Court has recognized that a presumption of money

damages does not apply to cooperative agreements.” Plaintiff, however, argues that the

government “cannot get around the presumption that money damages are available for a

breach-of-contract claim such as SAHA’s,” and that “[n]one of the narrow exceptions to

this presumption” apply to this case. According to plaintiff, “the MTW Agreement is a valid

and enforceable contract between SAHA and HUD, the breach of which fairly

contemplates money damages.” Plaintiff further argues that defendant’s “attempt to

analogize this case with ‘cooperative agreements’ is entirely misplaced and does not

rebut the presumption that money damages are available for HUD’s breach of the MTW

Agreement.”

Defendant’s reliance on Rocky Mountain Helium for its argument that 2009 MTW

Agreement is a non-commercial contract, and, therefore, outside of this court’s

jurisdiction, is misplaced. In Rocky Mountain Helium, Rocky Mountain Helium, LLC, the

plaintiff, brought a breach of contract claim based on a settlement agreement it had

entered into with the United States Bureau of Land Management (Bureau), which had

settled a prior dispute between plaintiff and the Bureau regarding a helium contract under

which plaintiff was allowed to extract helium from federal land in exchange for paying the

government rent or a royalty for the extracted helium. See Rocky Mountain Helium, LLC

v. United States, 841 F.3d at 1321-22. Pursuant to the settlement agreement, the

government was to provide Rocky Mountain Helium with certain “Data” about gas

composition on the federal lands covered by the helium contract, and within 90 days of

receiving the Data, Rocky Mountain Helium was obligated to pay the government

$116,579.90 in back rent, at which point the helium contract would be reinstated. See id.

at 1322. The settlement agreement explained that if Rocky Mountain Helium failed to

make payment to the government within 90 days of receipt of the Data, Rocky Mountain

Helium’s failure to pay would trigger a “Sunset Provision,” which provided that the Bureau

could contract with third parties for helium recovery on the lands covered by the helium

contract. See id. The settlement agreement also contained a disputes clause, which

provided that any disputes between the parties regarding the settlement agreement “will

be submitted to the Honorable Judge Allan Goodman at the CBCA [Civilian Board of

Contract Appeals] for ADR [Alternative Dispute Resolution] pursuant to CBCA rule 54.”

See id. (second alteration in original; internal quotation marks omitted).

Giving rise to Rocky Mountain Helium’s breach of contract claim in the United

States Court of Federal Claims was the government’s decision to invoke the Sunset

Provision. See id. at 1326. According to Rocky Mountain Helium, the government

allegedly had breached the settlement agreement when it improperly invoked the Sunset

Provision based on Rocky Mountain Helium’s failure to pay $116,579.90 within 90 days,

as required by the settlement agreement. See id. Rocky Mountain Helium did not dispute

that it had not paid the government, but, instead, argued that it was not required to do so

because the government provided it with incomplete Data, and, thus, the government’s

invocation of the Sunset Provision was allegedly improper. See id. The United States

Court of Federal Claims dismissed Rocky Mountain Helium’s breach of a settlement

agreement claim for “lack of subject matter jurisdiction on the ground that the disputes

36

clause required submission of the dispute to Judge Goodman.” Id. On appeal, the parties

conceded that Rocky Mountain Helium did submit its dispute to Judge Goodman, and,

thus, the disputes clause was satisfied. See id. The government argued that jurisdiction

was nonetheless lacking on Rocky Mountain Helium’s breach of contract claim because

the settlement agreement could not be fairly interpreted as mandating monetary damages

by the government. See id. at 1326-27. The United States Court of Appeals for the

Federal Circuit “reject[ed] that contention” and explained that “‘as with private

agreements, there is a presumption in the civil context that a damages remedy will be

available upon the breach,’” which applies absent specific and limited circumstances,

which the Federal Circuit noted did not apply in the case. See id. at 1327 (quoting Sanders

v. United States, 252 F.3d at 1334). The United States Court of Appeals for the Federal

Circuit then stated that the settlement agreement “is a commercial contract” that “comes

within the core of the strong background rule making monetary remedies available for

contract breaches even when there is no express contract provision so stating.” Id.

Although the United States Court of Appeals for the Federal Circuit noted that the

settlement agreement in Rocky Mountain Helium was a commercial contract, the Rocky

Mountain Helium court did not find that commercial contracts were the only contracts

under the United States Court of Federal Claim’s jurisdiction. On the contrary, the Federal

Circuit in Rocky Mountain Helium noted that, unless a contract falls within one of the

“limited number of situations,”10 in which money damages are not available under a

contract, a contract will be presumed to provide monetary damages, “even when there is

no express contract provision so stating.” See id. Therefore, contrary to defendant’s

argument, whether plaintiff’s 2009 MTW Agreement can be considered a “commercial

contract” is not dispositive to this court’s jurisdictional analysis.

Jurisdiction over a Cooperative Agreement

Defendant argues that the 2009 MTW Agreement falls outside of this court’s

jurisdiction because it is “akin” to a cooperative agreement pursuant to the FGCAA. The

FGCAA provides guidance to executive agencies regarding the use of three different legal

instruments, a “procurement” contract, a “grant agreement,” and a “cooperative”

agreement. See 31 U.S.C. §§ 6303-6305. The stated “purposes” of the FGCAA is (1) to

“promote a better understanding of United States Government expenditures and help

eliminate unnecessary administrative requirements on recipients of Government awards,”

(2) “prescribe criteria for executive agencies in selecting appropriate legal instruments” to

achieve “uniformity in their use by executive agencies,” “a clear definition of the

relationships they reflect,” and a “better understanding of the responsibilities of the parties

to them,” and (3) “promote increased discipline in selecting and using procurement

contracts, grant agreements, and cooperative agreements.” Id. at § 6301. The FGCAA

10 As previously discussed, the limited number of situations recognized by the Rocky

Mountain Helium court were “where a contract expressly disavows money damages,”

“where the breach alleged was of a confidentiality provision in an agreement defining the

terms of an alternative dispute resolution process,” “where the agreement concerned a

criminal defendant’s release on bail,” and “where a special government cost-sharing

agreement, rather than a procurement or sales contract, was at issue.” Id.

37

provision to which defendant cites, 31 U.S.C. § 6305, is titled “Using cooperative

agreements.” The statute at 31 U.S.C. § 6305 provides:

An executive agency shall use a cooperative agreement as the legal

instrument reflecting a relationship between the United States Government

and a State, a local government, or other recipient when--

(1) the principal purpose of the relationship is to transfer a

thing of value to the State, local government, or other recipient

to carry out a public purpose of support or stimulation

authorized by a law of the United States instead of acquiring

(by purchase, lease, or barter) property or services for the

direct benefit or use of the United States Government; and

(2) substantial involvement is expected between the executive

agency and the State, local government, or other recipient

when carrying out the activity contemplated in the agreement.

Id. This section of the FGCAA provides guidance to federal agencies as to when a

cooperative agreement may be an appropriate vehicle to suit their needs.

In Trauma Service Group v. United States, 104 F.3d 1321 (Fed. Cir. 1997), the

United States Court of Appeals for the Federal Circuit noted that a contract’s classification

as a cooperative agreement does not determine whether the United States Court of

Federal Claims has jurisdiction over a breach of contract claim. See id. at 1326. In Trauma

Service Group, Trauma Service Group, a civilian provider of health care services, brought

a breach of contract claim against the government, alleging that the United States Army

had breached its memorandum of agreement (MOA) with Trauma Service Group, which

provided for the sharing of resources between health care facilities for the military and

health care facilities for civilians. See Trauma Serv. Grp. v. United States, 104 F.3d at

1323-24. The United States Court of Federal Claims dismissed Trauma Service Group’s

breach of contract claim, finding in part that Trauma Service Group’s MOA agreement

was a “cooperative agreement” pursuant to the FGCAA and, thus, not enforceable in this

court. See Trauma Serv. Grp. v. United States, 33 Fed. Cl. 426, 429-30 (1995), aff’d on

other grounds, 104 F.3d 1321 (Fed. Cir. 1997). On appeal, the United States Court of

Appeals for the Federal Circuit affirmed the trial court’s dismissal of the breach of contract

claim, but on different grounds. See Trauma Serv. Grp. v. United States, 104 F.3d at

1326. The Federal Circuit found that Trauma Service Group had failed to prove there was

a breach, not that the appellant lacked an enforceable contract. See id. The United States

Court of Appeals for the Federal Circuit noted that “any agreement can be a contract

within the meaning of the Tucker Act, provided that it meets the requirements for a

contract with the Government, specifically: mutual intent to contract including an offer and

acceptance, consideration, and a Government representative who had actual authority to

bind the Government,” and, therefore, “contrary to the opinion of the trial court, a MOA

[memorandum of agreement] can also be a contract—whether this one is, we do not

decide.” Id.

38

Furthermore, as a Judge of this court explained in Thermalon Industries, Limited

v. United States, 34 Fed. Cl. 411 (1995), the FGCAA’s classification of legal instruments

into “procurement contracts,” “cooperative agreements,” and “grant agreements” is not

dispositive when determining Tucker Act jurisdiction over a potential breach of contract

claim pursuant to 28 U.S.C. § 1491(a). See Thermalon Indus., Ltd. v. United States, 34

Fed. Cl. at 419. In Thermalon, defendant argued that this court lacked subject matter

jurisdiction pursuant to the Tucker Act over plaintiff’s grant agreement because the

Thermalon plaintiff’s grant agreement, as defined by the FGCAA, was not a contract

involving the “government’s proprietary procurement of goods and services.” Id. at 417.

The Thermalon court, however, rejected defendant’s contention that grant agreements,

per se, fell outside of this court’s Tucker Act jurisdiction, stating:

These and the other provisions of the Grant Act do not aid defendant

because they do not address even obliquely the scope of this court’s Tucker

Act contract jurisdiction. There is no suggestion in the Grant Act that

procurement contracts are the only type of contracts enforceable under the

Tucker Act or that grant agreements that satisfy all of the ordinary

requirements for a government contract should not be classified as

contracts enforceable under the Tucker Act. In this regard, Congress’ use

of the word “contract” when referring to procurement contracts and of the

word “agreement” when referring to grant agreements does not suggest that

all grant agreements are not contracts. To the contrary, as explained in the

Restatement (Second) of Contracts § 3 cmt. a (1979), “[a]greement has in

some respects a wider meaning than contract, bargain or promise. . . . The

word ‘agreement’ contains no implication that legal consequences are or

are not produced.” In other words, “agreement” is broader in scope than

“contract” in that agreements encompass both contracts, see, e.g., County

of Suffolk, N.Y. v. United States, 19 Cl. Ct. 295, 297 (1990) (“[g]iven the

existence of an offer, acceptance, and consideration, the two grant

agreements . . . constitute enforceable contracts”), and arrangements that

do not qualify as contracts, see, e.g., D.R. Smalley [& Sons, Inc. v. United

States], 178 Ct. Cl. [593, 598], 372 F.2d [505, 507 (1967)] (holding certain

federal grants of highway funds to be “gifts or gratuities”). Therefore,

Congress’ use of the term “agreement” in the Grant Act to describe a grant

relationship cannot reasonably be interpreted as an indication that

Congress intended for all grant agreements not to constitute contracts and

to fall outside the scope of this court’s Tucker Act jurisdiction.

Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. at 417-18. The Thermalon court then

stated:

[T]he classification of an arrangement with the United States as a grant

agreement does not resolve the question of whether the arrangement

constitutes a contract enforceable under the Tucker Act. The answer to that

question is not found in the Grant Act but rather in the standards traditionally

39

applied by this court requiring a mutual intent to contract, including an offer,

acceptance, and consideration.

Id. at 419.

Since the issuance of Trauma Service and Thermalon, a number of Judges of this

court have noted that a contract’s classification as a cooperative or grant agreement does

not determine whether this court has jurisdiction over a party’s breach of contract claim.

See, e.g., 360Training.com, Inc. v. United States, 104 Fed. Cl. 575, 587 (2012) (“[T]he

FGCAA is directed to a different set of concerns than the Tucker Act. The FGCAA sets

criteria that an agency should evaluate when deciding which legal instrument best

represents the relationship between two parties, while the Tucker Act provides for

jurisdiction over a procurement or a proposed procurement, which encompasses the

entire process of obtaining property or services from a third party. The Court, therefore,

finds that the descriptions of procurement contracts and cooperative agreements

contained in 31 U.S.C. § 6303 and § 6305 do not narrow the definition of procurement in

the Tucker Act . . . .” (citation omitted)); Pa. Dep’t of Public Welfare v. United States, 48

Fed. Cl. 785, 790 (2001) (noting that it “is not this Court’s position that grants can never

be contracts within Tucker Act jurisdiction,” and that “[g]rant related agreements have

been held to be contracts within Tucker Act jurisdiction when all the requisite elements of

a contract were present”); Moore v. United States, 48 Fed. Cl. 394, 397 (2000) (noting

that “this court and its predecessor have also concluded that jurisdiction lies under the

Tucker Act to consider alleged breaches of grants or cooperative agreements”), appeal

dismissed, 17 F. App’x 973 (Fed. Cir. 2001).

Defendant in the above-captioned case cites to St. Bernard Parish Government v.

United States, 134 Fed. Cl. 730 (2017), aff’d on other grounds,11 916 F.3d 987 (Fed. Cir.

2019), and Anchorage v. United States, 119 Fed. Cl. 709 (2015), two cases issued by the

same Judge of this court, to support defendant’s position that cooperative agreements

are afforded no presumption of money damages. This court is not bound by decisions

issued by Judges of this court but only by decisions issued by the United States Court of

Claims, this court’s predecessor, the United States Court of Appeals for the Federal

Circuit, and the United States Supreme Court. See Dellew Corp. v. United States, 855

F.3d 1375, 1382 (Fed. Cir. 2017); see also Coltec Indus., Inc. v. United States, 454 F.3d

1340, 1353 (Fed. Cir.) (“There can be no question that the Court of Federal Claims is

required to follow the precedent of the Supreme Court, our court, and our predecessor

court, the Court of Claims.”), reh’g denied (Fed. Cir. 2006), cert. denied, 549 U.S. 1206

11 On appeal, the Federal Circuit in St. Bernard Parish Government noted that “[w]e do

not reach” the issue of whether the “trial court erroneously concluded that the agreement

between St. Bernard and the NRCS was not a binding contract enforceable in money

damages,” because “we conclude that Congress has barred claims such as St. Bernard’s

from being adjudicated in the Court of Federal Claims, and instead has provided for such

claims to be addressed first in administrative review proceedings before the Department

of Agriculture.” St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 991 (Fed. Cir.

2019).

40

(2007). Further, the position summarily articulated in St. Bernard Parish that cooperative

agreements are not afforded a presumption of monetary damages is not persuasive. See

St. Bernard Parish Gov’t v. United States, 134 Fed. Cl. at 735 (holding that because the

agreement at issue was a “cooperative agreement” pursuant to the FGCAA, “damages

cannot be implied”). The decision does not cite to any legal support that cooperative

agreements, as defined by the FGCAA, are per se outside of this court’s jurisdiction under

28 U.S.C. § 1491(a). In addition, St. Bernard Parish does not discuss the United States

Court of Appeals for the Federal Circuit’s explanation in Trauma Service Group that any

contract, including a cooperative agreement, could fall within this court’s jurisdiction so

long as the contract contains the four required elements of offer, acceptance,

consideration, and proper government authority. See Trauma Serv. Grp. v. United States,

104 F.3d at 1326. Therefore, St. Bernard Parish does not alter this court’s conclusion that

cooperative agreements are not categorically excluded from this court’s jurisdiction.

In Anchorage, the defendant argued that the plaintiff’s contract was a cooperative

agreement “under the Federal Grant and Cooperative Agreement Act (‘FGCAA’),” and,

therefore, “money damages are not presumed in a cooperative agreement,” similar to the

argument defendant raises in the above-captioned case. See Anchorage v. United States,

119 Fed. Cl. at 713. The Anchorage court, however, did not address whether cooperative

agreements, as defined by the FGCAA, fell outside of this court’s jurisdiction but instead

focused on whether plaintiff’s contract could qualify as a cooperative agreement, which

the court found was not the case. See id. at 714. Therefore, Anchorage did not reach the

issue of whether cooperative agreements are per se outside of this court’s jurisdiction.

Defendant also claims that the Judge in Summit Power Group, LLC v. United

States, 139 Fed. Cl. 369 (2018), “recognized that a presumption of money damages does

not apply to cooperative agreements.” The Judge in Summit Power, however, did not

state that cooperative agreements never receive a presumption of monetary damages,

but noted that Judges of this court and of the United States Court of Appeals for the

Federal Circuit have found that “particular” cooperative agreements, which “did not

contemplate payment of money as a remedy for breach of the agreement,” fell outside of

this court’s jurisdiction. See id. at 374. In addition, the Summit Power court did not address

whether the plaintiffs’ cooperative agreement contemplated monetary damages and

instead found that the plaintiffs’ cooperative agreement failed to come within this court’s

jurisdiction because plaintiffs sought declaratory relief, not monetary relief. See id. at

374-75. As the Summit Power court stated:

More importantly, however, even if plaintiffs are correct that the cooperative

agreement is a contract to which they are parties, and even if the

cooperative agreement contemplated damages for breach, plaintiffs do not

seek such relief. They do not seek money damages as a result of breach of

the implied duty of good faith and fair dealing. Instead, they seek a

declaration that such breach excused STCE’s [Summit Texas Clean

Energy, LLC] failure to reach financial close and as a result DOE [the

Department of Energy] should be precluded from seeking repayment of the

accelerated funds.

41

Id. at 374.

Defendant then claims that Rick’s Mushroom Service, Inc. v. United States

supports its proposition that a presumption of money damages is not available under a

cooperative agreement. Rick’s Mushroom, however, is distinguishable from the above-

captioned case. In Rick’s Mushroom, the issue before the United States Court of Appeals

for the Federal Circuit was whether appellant’s cost-sharing, cooperative agreement with

the government for implementing conservation practices in a facility for recycling of

mushroom waste qualified as a “procurement” contract for purposes of establishing

jurisdiction under 28 U.S.C. § 1491(a)(2), which allows this court to render judgment upon

a claim under the CDA. See Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at

1343. The Federal Circuit noted that the CDA applies only to “express or implied

government contracts for procurement of goods or services.” Id. (citing 41 U.S.C. § 602(a)

(2006), codified as amended at 41 U.S.C. §§ 7101-09 (2012)). Therefore, for the United

States Court of Appeals for the Federal Circuit to find jurisdiction over the Rick’s

Mushroom appellant’s contract claim under 28 U.S.C. § 1491(a)(2), the cost-sharing,

cooperative agreement had to qualify as a “procurement” contract. See Rick’s Mushroom

Serv., Inc. v. United States, 521 F.3d at 1344. The United States Court of Appeals for the

Federal Circuit determined that the appellant’s contract did not classify as a procurement

contract and, therefore, there was no basis for jurisdiction under 28 U.S.C. § 1491(a)(2).

See id. Plaintiff in the above-captioned case, however, is not alleging jurisdiction under

28 U.S.C. § 1491(a)(2) nor has plaintiff alleged that its 2009 MTW Agreement is a

procurement contract, but alleges that jurisdiction arises under 28 U.S.C. § 1491(a)(1),

the Tucker Act’s general contract claim jurisdiction, which is not limited to only

procurement contracts but more broadly to any contract claims. Rick’s Mushroom does

not assist defendant’s argument that plaintiff’s breach of contract claim rests outside of

this court’s 28 U.S.C. § 1491(a)(1) jurisdiction.12

12 The Federal Circuit in Rick’s Mushroom summarily stated in one sentence, without

providing any legal analysis or citing to any legal support, that the appellant’s “the cost-

share agreement does not provide a substantive right to recover money-damages and

Rick’s does not point to a money-mandating source of law to establish jurisdiction under

28 U.S.C. § 1491(a)(1) for its breach of contract claim.” Rick’s Mushroom Serv., Inc. v.

United States, 521 F.3d at 1343. Contrary to defendant’s position in this case, the Federal

Circuit’s finding that the Rick’s Mushroom appellant’s cost-sharing agreement did not

provide a right to recovery under 28 U.S.C. § 1491(a)(1) does not translate into a blanket

rule that all cooperative agreements fall outside of this court’s 28 U.S.C. § 1491(a)(1)

jurisdiction, nor has it been so broadly applied by the Federal Circuit in subsequent

decisions. As the Federal Circuit noted in Rocky Mountain Helium, issued eight years

after Rick’s Mushroom, the “special government cost-sharing agreement” at issue in

Rick’s Mushroom, rather than all cost-sharing agreements, fell outside of this court’s

jurisdiction. See Rocky Mountain Helium, LLC v. United States, 841 F.3d at 1327 (citing

Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1344-46).

42

Incorporation of a Non-Money Mandating Statue

Defendant then argues that no presumption of monetary damages should apply to

the 2009 MTW Agreement because the agreement incorporates, and relies on, the 2012

Appropriations Act and the MTW Statute, two statutes which defendant argues are not

money-mandating. Defendant argues in its reply in support of its motion to dismiss:

Here, SAHA only nominally relies on the existence of a contract; in

substance, its claims depend upon the 2012 Appropriations Act and the

MTW Statute to establish the parameters of those claims. To the extent that

those non-money-mandating statutory duties may have been replicated or

incorporated into SAHA’s contract with HUD, the contract merely reflects

SAHA’s enrollment in, and adherence to, a larger statutory and regulatory

scheme that is not itself money-mandating. Accordingly, any and all

contractual promises under the MTW agreement are animated by—and

must be interpreted in light of—the limitations of those laws. Those

limitations, in turn, are fatal to SAHA’s demand for “damages.”

(internal reference omitted). Defendant also states that “when a contract-based

entitlement derives wholly from statute, a claim based on that contract provision must

succumb to the very same flaws as the statute embodied by that contract provision.”

Plaintiff argues that “the question of whether the MTW Statute and 2012

Appropriations Act are or are not money-mandating is not relevant to the question of

whether SAHA’s breach-of-contract claim can fairly be interpreted as contemplating

monetary damages in the event of breach.” (internal quotation marks omitted). According

to plaintiff, “the nature of SAHA’s breach-of-contract claim is one for compensatory money

damages” and brings “SAHA’s claim within the jurisdiction of the Tucker Act.”

Plaintiff in this case does not allege that defendant breached any portion of

plaintiff’s 2009 MTW Agreement which incorporates the 2012 Appropriations Act. Count

I, instead, alleges that defendant breached Section II.A of the 2009 MTW Agreement,

which contains a subsection that largely tracks the “Anti-Discrimination Provision”

contained in Section (f) of the MTW Statute, contained within the Department of Veterans

Affairs and Housing and Urban Development, and Independent Agencies Appropriations

Act of 1996, Pub. L. No. 104-134, § 204, 110 Stat. 1321, 1321-281 (1996). Defendant’s

allegation that the 2009 MTW Agreement incorporates the 2012 Appropriations Act is

inapposite to the issue at hand, which is whether the 2009 MTW Agreement is money-

mandating.

Regarding the 2009 MTW Agreement’s incorporation of the MTW Statute, Count I

alleges that that defendant breached the “Anti-Discrimination Provision in Section II.A of

the MTW Agreement by reducing SAHA’s operating subsidy” solely “because SAHA is a

MTW agency.” According to the complaint, Section II.A of the 2009 MTW Agreement

largely tracks the language contained in Section (f) of the MTW Statute. The complaint

states:

43

Section II.A of the MTW Agreement between HUD and SAHA recites almost

verbatim the MTW Act’s Anti-Discrimination Provision, providing: “The

amount of assistance received under sections 8 or 9 of the 1937 Act by an

Agency participating in the demonstration shall not be diminished by the

Agency’s participation in the MTW demonstration.”

The Anti-Discrimination Provisions in both the MTW Act and MTW

Agreement provide a clear, non-discretionary standard for the minimum

payment of subsidies to MTW agencies such as SAHA under Sections 8

and 9. Consequently, the Anti-Discrimination Provision [within the MTW

Agreement] is money mandating.

(emphasis in original; internal reference omitted). The complaint alleges that, “[a]s a result

of HUD’s breach of the MTW Agreement, SAHA was damaged in the amount of at least

$2,874,719 and is entitled to recover same.”

Whether the 2009 MTW Agreement explicitly incorporates Section (f) of the MTW

Statute, however, does not affect this court’s analysis of whether jurisdiction exists over

plaintiff’s breach of contract claim. As the Federal Circuit noted in San Juan City College

v. United States, 391 F.3d 1357 (Fed. Cir. 2004), a case cited to by both parties in this

case, an agreement’s incorporation of allegedly non-monetary regulations is not

jurisdictionally fatal to the plaintiff’s breach of contract claim. See San Juan City College

v. United States, 391 F.3d at 1360. In San Juan City College, the San Juan City College

sued the United States Department of Education (DOE) in the United States Court of

Federal Claims, alleging that the DOE breached its program participation agreement with

San Juan City College, which provided that the government would provide student aid

funds to San Juan City College. See id. at 1357-58. San Juan City College alleged that

the breach occurred in 1995, when the government failed to provide it with a hearing

before ceasing student aid funding, which was required pursuant to 34 C.F.R. § 668.86

(1995), a regulation that was incorporated into the program participation agreement. See

id. at 1359. The United States Court of Federal Claims initially had found that the breach

of contract claim failed and granted defendant’s motion for summary judgment, explaining

that “[t]he agency’s commitment, in short, was to do what the regulations required. The

regulations, however, embody their own limited remedy for ‘breach’-namely, either an

administrative appeal, as provided for in 34 C.F.R. § 668.111–121, or a suit in the district

court seeking declaratory or injunctive relief.” San Juan City Coll. v. United States, 58

Fed. Cl. 26, 31 (2003), rev’d, 391 F.3d 1357 (Fed. Cir. 2004). The United States Court of

Federal Claims then stated that “[w]e rule that, as a matter of law, violation of the

agreement, insofar as it involves a failure to offer a hearing under 34 C.F.R. § 668.86,

creates a right only to equitable relief,” and, thus, San Juan City College was not entitled

to any contractual monetary damages. See id. at 32.

The United States Court of Appeals for the Federal Circuit, however, reversed the

United States Court of Federal Claims, explaining:

44

Although it may well be, as the Court of Federal Claims stated, that most

(and perhaps all) of these contractual provisions were required by and

incorporated the governing regulations, that does not make them any less

contractual obligations or provisions, or constitute a valid reason for not

treating them as such.

We see nothing in either the Agreement itself or in the governing statute or

regulations that supports the Court of Federal Claims’ view that the parties

understood that damages would not be available in the event of breach.

Normally contracts do not contain provisions specifying the basis for the

award of damages in case of breach, with the exception of provisions

governing damages in particular situations, such as liquidated damages for

delay or other specified breaches.

The fact that this contract covers government financial grants does not

warrant a different standard. If the government has breached the

Agreement, the College is entitled to seek whatever damages it is entitled

to receive. As this Court has stated, “in the area of government contracts,

as with private agreements, there is a presumption in the civil context that

a damages remedy will be available upon the breach of an agreement.

Indeed, as a plurality of the Supreme Court noted in United States v.

Winstar Corp., 518 U.S. 839, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996),

‘damages are always the default remedy for breach of contract.’” Sanders

v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001) (citing and quoting

Winstar Corp., 518 U.S. at 885, 116 S. Ct. 2432 (parallel citations omitted)).

San Juan City Coll. v. United States, 391 F.3d at 1360-61. Therefore, as the Federal

Circuit held in San Juan City College, a contract’s incorporation of allegedly non-money

mandating statutory and regulatory provisions does not prevent this court from exercising

jurisdiction over a breach of contract claim. See id. Defendant’s argument that this court

lacks jurisdiction over the 2009 MTW Agreement due to its incorporation of the MTW

Statute fails.

Request for New Exception to Presumption of Monetary Damages

Finally, defendant argues that, “even if the presumption of damages did apply,” the

court should make an exception to this presumption for plaintiff’s 2009 MTW Agreement.

Defendant, however, provides no relevant support for this argument. Defendant simply

states that “[s]olicitude for previously recognized judge-made exceptions to a judge-made

presumption should not stunt the development of decisional law as courts continue to

confront different types of Government agreements.” (citation omitted). The court declines

defendant’s invitation to exclude plaintiff’s 2009 MTW Agreement from this court’s well-

developed contract jurisdiction. To summarize, the well-established presumption that

monetary damages are available in a breach of contract claim applies to the facts of the

above-captioned case. Defendant’s numerous arguments that the presumption should

not apply in this case fail. Defendant has not overcome this presumption, and, therefore,

45

the court denies defendant’s motion to dismiss for lack of subject matter jurisdiction

plaintiff’s breach of contract claim. Whether and to what extent plaintiff may recover

$2,874,719.00 under its breach of contract claim is a determination on the merits, which

the court does not reach on this motion to dismiss for lack of subject matter jurisdiction.

See Alvarado Hospital, LLC v. Price, 868 F.3d at 993 (“‘Jurisdiction . . . is not

defeated . . . by the possibility that the averments might fail to state a cause of action on

which petitioners could actually recover.’” (alterations in original) (quoting Do-Well Mach.

Shop, Inc. v. United States, 870 F.2d 637, 639 (Fed. Cir. 1989))).

As previously noted, plaintiff argues that because Judges of this court in Boaz,

Public Housing Authorities Directors Association, and Santa Clara previously found that

HUD had breached public housing contracts between HUD and various public housing

authorities, this court should find that plaintiff’s 2009 MTW Agreement falls within this

court’s jurisdiction. As stated above, this court is not bound by the decisions of other

Judges of this court but is only strictly bound by decisions issued by the United States

Court of Claims, this court’s predecessor court, the United States Court of Appeals for the

Federal Circuit, and the United States Supreme Court. See Dellew Corp. v. United States,

855 F.3d at 1382 (noting that “the Court of Federal Claims must follow relevant decisions

of the Supreme Court and the Federal Circuit”).

In Santa Clara, the government entered into two separate MTW agreements with

two separate public housing agencies. See Housing Authority of Santa Clara v. United

States, 125 Fed. Cl. at 562. The Santa Clara plaintiffs alleged in their two-count complaint

that (1) the government breached their 2008 MTW agreements beginning in 2008 due to

the government’s alleged underfunding of plaintiffs’ Section 8 “housing assistance

payments” subsidy in violation of Attachment A of the 2008 MTW Agreement, and (2) the

government continued to breach their contract in “2009 through 2012.” See id. at 561-62

(internal quotations marks omitted). The parties did not contest the court’s jurisdiction

over plaintiff’s two breach of contract claims. The court, without any jurisdictional analysis

as to whether the Santa Clara plaintiffs’ 2008 MTW Agreement provided a monetary

remedy, summarily concluded in passing that the court had jurisdiction over plaintiffs’

breach of contract claims. See id. at 562.

In Public Housing Authorities Directors Association, the lead case of various

consolidated cases brought by over three hundred public housing agencies before Judge

Kaplan, the Public Housing Authorities Directors Association plaintiffs alleged a breach

of “Annual Contributions Contracts” when the government offset public housing agencies’

Section 9 operating subsidies in 2012 with the plaintiffs’ operating reserves pursuant to

the 2012 Appropriations Act. See Pub. Hous. Auths. Dirs. Ass’n. v. United States, 130

Fed. Cl. at 529. According to the Public Housing Authorities Directors Association

plaintiffs, the government was required by 24 C.F.R. § 990.201(c), a regulation

incorporated into the plaintiffs’ annual contribution contracts, in the event of insufficient

funds, to reduce “‘on a pro rata basis, the amounts of operating subsidy to be paid to

PHAs.’” Id. at 526 (quoting 24 C.F.R. § 990.201(c)). The government, however, pursuant

to the 2012 Appropriations Act, offset public housing authorities’ Section 9 operating

subsidy for 2012 with public housing authorities’ excess operating reserves. See id. at

46

529. The government also challenged the court’s jurisdiction over some of the plaintiffs,

alleging that sixteen of the three hundred plaintiffs did not have standing because,

according to the government, the sixteen plaintiffs did not suffer any injury-in-fact. The

government did not challenge whether the plaintiffs’ annual contribution contract created

a money-mandating remedy to support jurisdiction over the plaintiffs’ breach of contract

claim. The Public Housing Authorities Directors Association court found in favor of the

government’s jurisdictional argument, explaining that because the thirteen plaintiffs did

not have any operating reserves for 2012, the thirteen plaintiffs did not experience an

operating reserve offset in 2012, and, therefore, lacked standing to bring a breach of

contract claim. See id. at 530.

In Boaz, over five hundred public housing agencies sued HUD for a breach of their

annual contribution contracts when the government offset public housing agencies’

Section 9 operating subsidies in 2012 with the plaintiffs’ operating reserves pursuant to

the 2012 Appropriations Act. See Boaz Hous. Auth. v. United States, 141 Fed. Cl. at 79.

Judge Kaplan presided over the Boaz case and noted that the “legal claims” and “[t]he

issues before the Court on the merits of this case are identical” to those that were before

Judge Kaplan in Public Housing Authorities Directors Association, discussed above. See

id. at 76. Unlike in Public Housing Authorities Directors Association, however, the

government in Boaz did not challenge the standing of a few plaintiffs, but claimed that the

plaintiffs’ annual contribution contracts did not provide a monetary remedy and, thus, fell,

outside of this court’s jurisdiction. See id. at 80. The Boaz court rejected the government’s

position, finding that the plaintiffs’ annual contribution contracts enjoyed the benefit of the

presumption that money damages are available in a breach of contract claim in this court

and fell within this court’s jurisdiction. See id. at 80-84.

Although the Judges in Boaz, Public Housing Authorities Directors Association,

and Santa Clara did not present an in-depth analysis of this court’s jurisdiction over a

breach of contract claim stemming from a MTW Agreement, the court finds these three

cases are persuasive and support this court’s conclusion that plaintiff’s breach of contract

claim regarding its 2009 MTW Agreement with HUD falls within this court’s jurisdiction. In

sum, plaintiff’s 2009 MTW Agreement does not fall within one of the few exceptions to

this court’s well-established presumption that monetary damages are available for breach

of contract cla

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