# Petition — Portsmouth Redevelopment & Housing Authority v. Pierce > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0093%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 960 ## Text In the Supreme Court of the United States October Term, 1983 PORTSMOUTH REDEVELOPMENT AND HOUSING AUTHORITY, a political subdivision of the Commonwealth of Virginia, Petitioner, SAMUEL R. PIERCE, JR., SECRETARY OF HOUSING AND URBAN DEVELOPMENT, et al., Respondent, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Gordon B. Tayloe, Jr. Ralph W. Buxton COOPER, DAVIS, KILGORE, PARKER, LEON & FENNELL P.C. 500 Central Fidelity Bank Building Portsmouth, Virginia 23704 Phone No. (804) 397-3481 Counsel for Petitioner —oooooooooooooooEE QUESTION PRESENTED —_— Whether the "sue and be sued" clause in 42 U.S.C. §1404(a), a waiver of immunity, coupled with federal ques- tion issues involving federal constitu- tional, statutory and common law, grant jurisdiction pursuant to 28 U.S.C. §1331 to the District Court to determine by declaratory judgment and injunctive relief whether the Secretary of the United States Department of Housing and Urban Development erroneously applied Section 211 (a) of the Housing and Community Development Amendments of 1979 to: (1) the existing Annual Contribu- tions Contract entered into in 1976 between the United States Department of Housing and Urban Development and the Portsmouth Redevelopment and Housing i Authority pursuant to the United States Housing Act of 1937, 42 U.S.C. §1437 et seq; and (2) the application of the Portsmouth Redevelopment and Housing Authority for Comprehensive Improvement Assistance Program funds pursuant to 42 U.S.C. §14371. THE PARTIES TO THE PROCEEDING BELOW Philip Abrams, Assistant Secretary for Housing, United States Department of Housing and Urban Development, and I. Margaret White, Area Manager of the Richmond, Virginia Area Office of the United States Department ot Housing and Urban Development, were also parties below represented by the United States Department of Justice. ii TABLE OF CONTENTS QUESTION PRESENTED 1 THE PARTIES BELOW ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES vi PRAYER FOR WRIT 1 OPINIONS BELOW 2 JURISDICTION 3 STATUTES INVOLVED 3 STATEMENT OF FACTS 4 REASONS FOR GRANTING THE 11 WRIT i. The Court of Appeals has decided a federal jurisdictional ques- tion in a way in con- flict with applicable decisions of this Court. 11 y The Court of Appeals has rendered a decision in conflict with the de- cisions of other federal courts of appeal on the same matter. , 22 iii 36 The question presented is one of national im- portance, 27 CONCLUSION 28 CERTIFICATE OF SERVICE 30 APPENDIX A. Opinion and Order ot the U.S. Circuit Court of Appeals A-1 to A-23 B. Opinion and order of the U.S. District Court B-1 to B-54 C. Pertinent Provisions of Statutes and Regulations BA Federal Question, 28 U.S.C. §1331 C-1 me The Tucker Act, ae: GU.6.€. §§1346 (a) (2) and 1491 C-1 to C=-4 36 Anti-Deficiency Act, 31 U.8,C., §1502 C-4 to C=-5 4. Housing Act of 1948, 42 U.S.C. §1404a C-5 to C-6 De U.S. Housing Act of 1937, 42 U.S.C. §1437g (a) {prior to 1979] C-6 to C-7 iv Section 211 (a) of the Housing and Community Development Amendments of 1979 U. S. Housing Act of 1937, 42 U.S.C. §1437g (a) (1) [After 1979] 24 C.F.R. §869.105 (a) C-7 to C=-8 C-8 to C-10 C-10 TABLE OF AUTHORITIES Page Cases American Science and Engineer- ing, inc. Vv. Califano, F.2aq 58 (ist Cir. 1978) 23 Armor Elevator Co. v. Phoenix Urban Corp., 655 F.2d 19 (Ist Cir. 1981) 25 Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978) 23 Dugan v. Rank, 372 U.S. 609 (1963) 22 Estate of Watson v. Blumenthal, ~~~ 586 F.od 925 (2nd Cir. 1578) 23 Ferguson v. Union National ank of Clarksburg, West Virginia, 126 F.2d 753 (4th Cir. 1942) 15 F.H.A. v. Burr, 309 U.S. 242 a a $334, 16,20 George H. Evans & Co. v. United States, 169 F.2d 500 (3rd Cir. 1948) 24 Hoopa Valley Tribe, 596 F.2d 4 .S. ct. Cl. 1979) 23 Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644 (5th Cir. 1980) 26 International Engineering CO., Div. ° ns -O, Inc. v. Richardson, S12 Fl2a 573 (D.C. Cir. 1975) 23 Keifer & Keifer v. Re- Construction Finance Corporation, 306 U.S. 381 (1939) i ee 13,15 Larson v. Domestic Foreign Commerce Corp., 3237 U.S. 682 9) 21 Lee v. Thornton, 420 U.S. 139 (1975) 21 Lindy v. Lynn, 501 F.2d 1367 (3rd Cir. 1974) 23 Lomas & Nettleton Co. v. Pierce, 636 F.od 971 (5th Cir. 1981) 26 vii Mar v. Kleppe, 520 F.2d 867 (10th Cir. 1975) 25 Marcus Garvey Square v. Winston Burnett Const., et al, 595 F.2d 1l26 (9th Cir. 1979) 26,27 Reconstruction Finance Cor- oration v. J. G. Meninan, TT U.S 7 eaceeeee:- - - = SE539,%9 S.S. Silberblatt, Inc., et al, v. East Harlem Pilot Block, et al, 608 F.20 268 (2nd Cir. 1979) 25 Trans-Bay Engineers and Sarleere inc. v. Hills, 551 F.2d 370 (D.C. Cir. 1976) 25,26 United States v. Adams, 34 F.od 1261 (10th Cir. 1980) 26 United States v. King, Sor US I (1968 United v. Testan, 424 U.S. 392 (1976) 21 21 viii Statutes Anti-Deficiency Act, 31 U.S.C. §1502 4,9,12,15,19,22 Department of Housing and Urban Develop- ment Act, 42 U.S.C. §3534 13 Department of Housing and Urban Development- Independent Agencies Appropriation Act, 1982, Pub. L. No. 97-101, 95 STAT. 1417 18 Department of Housing and Urban Development- Incependent Agencies Appropriaton Act, 1983, Pub. L. No. 97-272, 96 STAT. 1160 18,19,20 Federal Question, 28 U.S.C. §1331 3,10 Housing Act of 1948 42 U.S.C. §1404 (a) 4,10,14,23 Housing and Community Development Amendments of 1979, Section 211 (a) 5,6,7,8,9 National Housing Act, 12 U.S.C. §1701 et seq. 20 ix The Tucker Act, 28 U.S.C. §§1346 (a) (2) and 1491 4,10,12,15, United States Housing Act of 1937: 42 U.S.C. §§1437-1437n 42 U.S.C. §1437g (prior to 1979) 42 U.S.C. §1437g (a) (1) 42 U.S.C. §14371 Virginia Housing Authorities Law, §36-1, et seg., Code of Virginia MISCELLANEOUS 24 C.F.R. §869.105 (a) 16,23 7,8,9 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 PORTSMOUTH REDEVELOPMENT AND HOUSING AUTHORITY, a political subdivision of the Commonwealth of Virginia, Petitioner, Vv. SAMYJEL R. PIERCE, JR., Secretary of Housing and Urban Development, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner, Portsmouth Redevelop- ment and Housing Authority, prays that a Writ of Certiorari issue to review the opinion and judgment of the United States Court of Appeals for the Fourth Circuit rendered in this case on April 27, 1983, and the denial of Portsmouth Redevelopment and Housing Authority's petition for rehearing in banc, dated June 20, 1983. A stay was granted pursuant to Rule 41(b) F.R.A.P. on June 20, 1983. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourth Circuit, as yet unreported, appears in Appendix A. The opinion of the United States District Court for the Eastern District of Virginia, also as yet unreported, appears in Appendix B. JURISDICTION The Opinion of the United States Court of Appeals for the Fourth Circuit was rendered on April 27, 1983. Portsmouth Redevelopment and Housing Authority's "Motion for Rehearing In Banc" was denied on June 20, 1983. This Petition for a Writ of Certiorari was filed within 30 days of the granting of the Portsmouth Redevelopment and Housing Authority's “Alternative Motion to Stay the Mandate of the Court Pending Appli- cation for Writ of Certiorari to the Supreme Court" pursuant to Rule 41(b), F.R.A.P. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). STATUTES INVOLVED Federal Question, 28 U.S.C. §1331 (set out in Appendix C-1). Tucker Act, 28 U.S.C. §§1346 (a) (2) and 1491(a) (set out in Appendix C-1 to C-4). Housing Act of 1948, 42 U.S.C. §1404a (set out in Appendix C-5 to C-6). The U.S. Housing Act of 1937, 42 U.S.C. §1437 et seq. (only §1437g set out in Appendix C-6 to C-10). STATEMENT OF FACTS Portsmouth Redeve lopment and Housing Authority (Authority) is a political subdivision of the Common- wealth of Virginia created under Title 36 of the 1950 Code of Virginia, as amended. The Authority operates 2,356 public housing units for low-income persons in Portsmouth, Virginia. It receives several types of federal subsidies pursuant to an Annual Contributions Contract (ACC) with the United States Department of Housing and Urban Development (HUD) and the provisions of the United States Housing Act of 1937, 42 U.S.C. §§ 1437-1437n (the "Act"). Additional annual contributions for operating expenses (operating subsidies) are made available to the Authority in accordance with the terms of its ACC and 42 U.S.C. §1437g (Appendix C-6 to C-10). In 1976, when the Authority and HUD entered into the ACC, §1437g provided, in part: "The Secretary shall embody the provisions for such annual contributions in a contract guaranteeing their payment subject to the availability of funds." In 1979, Congress, pursuant to Section 21l(a) of the Housing and Community Development Amendments of 1979 (Section 21l(a)), amended 42 U.S.C. 1437g by adding the following clause to the sentence quoted: "and such contract shall provide that no disposition of the low-income housing project, with respect to which the contract is entered into, shall occur during and for ten years after the period when contributions were made pursuant to such contract unless approved by the Secretary." Pub. L. No. 96-153, §211(a) (3), 93 Stat. 1110, 42 U.S.C. §1437g (a) (1) (1979) (Appendix C-7). Subsequent to the enactment of Section 2ll(a), the Secretary of HUD (Secretary) promulgated a regulation which unilaterally directed each public housing authority with an existing ACC to execute an amendment thereto requiring the authority to operate its projects as low income housing for a period of ten years after operating sub- sidies cease. See 24 C.F.R. §869.105 (a) (1980) (Appendix C-10). The Authority refused to execute an amendment to its ACC contending: (1) Section 2ll(a) did not apply to existing ACC's; (2) 24 C.F.R. §869.105(a) had no statutory basis and thus was illegal and unenforceable because it required operation of the projects as low income housing whereas Section 211l(a) only prohibited disposition of the projects; and (3) the enforcement of 24 C.F.R. §869.105 (a) was an unconstitutional taking of a property interest (contract rights) without due process. The Authority could not operate its projects as low income housing now without the operating subsidies, and it would not be able to do so for ten years after operating subsidies cease. As a result of the Authority's retusal to amend its ACC, HUD began withholding operating subsidies. In addition, HUD declined to consider the Authority's application for funds under the Comprehensive Improvement Assistance Program (CIAP), 42 U.S.C. §14371. The parties have stipulated that the CIAP application would have been approved were it not for the Authority's refusal to execute the amendment. The Authority filed an Amended Complaint seeking the U. S. District Court to: (1) Declare Section 211 (a) not applicable to _ the existing ACC between the Authority and HUD; (2) declare 24 C.F.R. §869.105(a) invalid as having no statutory basis; (3) declare Section 21ll(a) cannot be applied as a condition to the approval of the Author- ity's CIAP application; (4) direct an accounting of sums owed by the Secretary to the Authority as a result of the erroneous interpretation of Section 21ll(a); and (5) order such injunctive relief as was necessary to affectuate its declaratory judgments. The Secretary filed a motion to dismiss for lack of jurisdiction, alleging that the action was essentially a contract claim against the United States for an amount exceeding $10,000 and jurisdiction therefore belonged exclusively to the United States Claims Court under the Tucker Act, 28 U.S.C. §§ 1346(a) (2) and 1491. The district court denied HUD's motion, ruling that the case was not ex contractu against the United States. The district court ruled that 42 U.S.C. §1404(a) waived sovereign immunity, and 28 U.S.C. §1331 granted federal question jurisdiction in that federal constitutional, statutory and common law questions were raised by the Amended Motion for Judgment. The district court decided the merits of the case in the Authority's favor and issued the requested declaratory and injunctive relief. The Circuit Court of Appeals for the Fourth Circuit vacated the district court's order ruling the gravament of the Authority's claim was ex contractu 10 against the United States; the claim was for more than $10,000 and that the United States Claims Court had exclusive jurisdiction. It is for a review of that opinion that the Authority seeks a Writ of Certiorari. REASONS FOR GRANTING THE WRIT 1. THE COURT OF APPEALS HAS DECIDED A FEDERAL JURISDICTIONAL QUESTION IN A WAY IN CONFLICT WITH APPLICABLE DECISIONS OF THIS COURT. (a) The Court of Appeals below overlooked or ignored Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381 (1939); Federal Housing Admin- istration v. Burr, 309 U.S. 242 (1940); and Reconstruction Finance Corporation v. J. G. Menihan, 312 U.S. 81 (1941) 11 and, as a consequence, its holding is in conflict with said decisions. The Court of Appeals' ruling that a governmental agency is the United States, the sover- eign, and thus the Tucker Act is the only applicable waiver of immunity is contrary to these decisions. The cited cases of this Court hold that’ the transactions of governmental agencies "are akin to those of private enter- prises and the mere fact that it is an agency of the government does not extend to it the immunity of the sovereign.” Menihan, supra, at p. 83. The United States Housing Authority was specifical- ly listed as such a federal agency with a "sue and be sued" clause in footnote 3 beginning on page 390 of Keifer, supra. The functions, powers and duties of the 12 United States Housing Authority have been transferred by statute to the Secretary. 42 U.S.C. §3534. The above cited cases of this Court also stand for the proposition that a waiver of governmental immunity should be liberally construed and not restrict- ed unless specifically stated by Con- gress. In Keifer, supra, at pp. 395 and 396, this Court said: » « » In the light of these stat- utes it ought not to be assumed that when Congress consented 'to suit' without qualification, the effect is the same as though it had written ‘in suits on contract, express or implied, in cases not sounding in tort.' No such dis- tinction was made by Congress. ... There is equally no warrant for importing such a distinction here. To do so would make application of a steadily growing policy of governmental liability contingent upon irrele- vant procedural factors. These, in 13 our law, are still deeply rooted in historical accidents to which the expanding conceptions ot public morality regarding governmental responsibility should not be subordinated. The Court of Appeals' decision that the Secretary is the sovereign United States and that the failure to include the words "in any court of competent jurisdiction, State or Federal" in §1404a denied this "sue and be sued" clause the power to grant subject matter jurisdiction placed a restriction on §1404a without showing that such a restriction is consistent with the statutory or constitutional scheme, that the restriction is necessary to avoid grave interference with the performance of a governmental function or that it 14 was plainly the purpose of Congress to use §1404a in such a narrow sense. In Ferguson v. Union National Bank of Clarksburg, West Virginia, 126 F.2d 753 (4th Cir. 1942), the Court of Appeals relied upon Keifer, Burr and Menihan, supra, in holding "the juris- diction of a United States District Court to entertain a suit against governmental agencies and corporations is not limited by the provisions of the Tucker Act. .. ." (citations omitted). Ferguson, supra, at pp. 756 and 757. In fact, the result in Ferguson was that the "sue and be sued" clause therein involved, by itself, granted subject matter jurisdiction to the district court. 15 The holding of the Court of Appeals that the source of the funds requires the exclusive jurisdiction of the United States Claims Court under the Tucker Act is also in conflict with the Burr case. It does not matter that the "origin" of the funds was the public treasury as long as these funds have been set aside for the Secretary and are now in his control. The Court in Burr, supra, at p. 250, said: The result is that only those funds which have been paid over to the Federal Housing Administration in accordance w.th §1 and which are in its possession, severed from Treasury funds and Treasury con- trol, are subject to execution. Clearly, Burr recognized that the origin of the funds would be the Trea- sury, but Burr was concerned with 16 control of the funds, not the source. The operating subsidies and CIAP funds involved here are within the control of the Secretary. The Authority will not have to execute against the Treasury to obtain the funds. The Temporary Re- Straining Order, the Preliminary Injunc- tion and the Order (Appendix B-48) of the District Court required the Secretary to retain control of the funds and to hold same in reserve subject to further orders of the District Court. We know the Secretary has control of the funds because the Secretary has been paying operating subsidies to the Authority since and pursuant to the District Court's Order of November 29, 1982, and the Secretary has entered into a contract with the Authority for CIAP 17 funds. No execution against the Trea- sury was necessary for the Authority to obtain the funds. The decision of the Court of Appeals cites the Appropriations Act, Pub. L. No. 97-101, 95 STAT. 1417, (Appendix A-11). This act provided the funds for the Secretary's programs and operations for the fiscal year ending September 30, 1982. Apparently, the Court of Appeals used this citation to show that the source of the funds was the Treasury and that "No part of any appropriation contained in this Act shall remain available for obligation beyond the current fiscal year unless expressly so provided herein." See Sec, 404, 95 STAT 1436. However, the Court of Appeals overlooked Appropriations 18 Act, Pub. L. No. 97-272, 96 STAT. 1160, which provided the Secretary's funds for fiscal year ending September 30, 1983. In the paragraph entitled, "Payments for Operation of Low-Income Housing Proj- ects," under Title I of the Act on page 2 (96 STAT. 1161) is found the follow- ing: , . Provided further, That funds heretofore provided under. this heading in Public Law 97-101 shall remain available for obligation tor the fiscal year ending September 30, 1983, and shall be used by the Secretary for fiscal year 1983 requirements in accordance with section 9(a), notwithstanding section 9(d) of the United States Housing Act of 1937, as amendec. (Emphasis added). In any event, the permanent injunction of the District Court, cited above, and 31 U.S.C. §1502 (Recodification 1983) 19 (Appendix C-4, 5), which the Court of Appeals also overlooked, would prevent the funds in question from being re- turned to the Treasury's control. The fact that the funds originated in the Treasury is of no legal conse- quence here. The Burr case supports this conclusion. The source of the Secretary's funds under the National Housing Act is also, with the exception of insurance premiums paid by private mortgagees, the U.S. Treasury. See paragraph entitled "Federal Housing Administration Fund" under Title I of the Appropriations Act, Pub. L. No. 97-272, 96 STAT. 1162. (b) The Circuit Court of Appeals' holding that the United States Claims Court has jurisdiction to render 20 declaratory judgment and injunctive relief is in conflict with the following applicable decisions of this Court: United States v. Testan, 426. U8... (396 (1976); United States v. King, 395 U.S. 1 (1969); Lee v. Thornton, 420 U.S. 139 (1975). Thus, the United States Claims Court could not provide the Authority with complete relief, especially regarding the equitable relief sought in its CIAP claim. Likewise, this Court has previously decided that the district court has jurisdiction (1) when a federal officer acts beyond his statutory powers and (2) even though within the scope of his authority, the powers themselves or the manner in which they are exercised are constitutionally void. Larson Vv. 21 Domestic Foreign Commerce Corp., 337 U.S. 682 (1949); Dugan v. Rank, 372 U.S. 609 (1963). The Circuit Court of Appeals disregarded the above authorities without discussion. 2. THE COURT OF APPEALS HAS RENDERED A DECISION IN CONFLICT WITH THE DECISIONS OF OTHER FEDERAL COURTS OF APPEAL ON THE SAME JURIS- DICTIONAL ISSUE. All the Circuit Court of Appeals and the United States Claims Court appear to be in agreement that the United States Claims Court has exclusive jurisdiction in contract disputes against the United States involving more than $10,000 if there is no waiver of sovereign immunity and grant of subject 22 matter jurisdiction other than the Tucker Act. See Lindy v. Lynn, 501 F.2d 1367 (3rda Cir., 1974); American Science and Engineering, Inc. v. Califano, 571 F.2d 58 (lst Cir. 1978); International Engineering Co., Div. of A-T-O, Inc. ¥. Richardson, 512 F.2d 573 (D.C. 1975), cert. denied, 423 U.S. 1048 (1976); Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978); Estate of Watson v. Blumenthal, 586 F.2d 925, (2nd Cir., 1978); and The Hoopa Valley Tribe v. United States, 596 F.2d 435 (Ct. Cl. 1979). However, the Circuit Court of Appeals for the Fourth Circuit apparent- ly relied on the above authorities even though it acknowledged 42 U.S.C. §1404(a) was a waiver of the Secretary's defense of sovereign immunity. 23 (Appendix A-20). The Court also acknowledged the Authority's claim would require disposition of questions of federal law. (Appendix A-16). In cases, with similar facts, against officers of the United States and/or federal agencies the Circuit Courts of Appeal are in disagreement as to whether the district court has jurisdiction of matters involvin contracts or disputes in excess of $10,000 when there exists a waiver of immunity ["sue and be sued" clause] coupled with federal constitutional, Statutory and common law questions. Circuit Court of Appeals cases ruling the district court has_ such jurisdiction are: George H. Evans & Co. v. United States, et al, 169 F.2d 500 24 (3rd Cir., 1948); Mar v. Kleppe, 520 F.2d 867 (10th Cir., 1975); Trans-Bay Engineers and Builders, Inc. v. Hills, 551 F.246 370 (D.C. Cir. 1976); §&.8. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28 (2nd Cir. 1979); and Armour Elevator Co. v. Phoenix Urban Corp., 655 F.2d 19 (lst Cir., 1981). The theory of these cases rests upon the Congressional intent in enact- ing the waiver of immunity by considering whether the claim against the government officer and/or federal agency is of the type for which a private enterprise doing business in the commercial world would be liable. Therefore, a judgment against a federal officer paid from funds within the officer's control would not prevent a 25 district court from exercising subject matter jurisdiction. Trans-Bay Engi- neers & Builders, Inc. v. Hills, supra, S. 376, Circuit Court of Appeals cases ruling the district court does not have jurisdiction are: Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644 (5th Cir., 1980); Lomas & Nettleton Co. v. Pierce, 636 F.2d 971 (5th Cir., 1981); Marcus Garvey Square v. Winston Burnett Const., 595 F.2d 1126 (9th Cir., 1979); and and United States v. Adams, 634 F.2d 1261 (10th Cir., 1980). The theory of these cases is based upon the position that funds whose origin was the Treasury always remain "Treasury Funds" even though they later come within the control of federal 26 agencies engaged in the business of commercial enterprise and thus the suit is against the sovereign and the Tucker Act provides the only waiver of immunity and subject matter jurisdiction. Marcus Garvey Sguare v. Winston Burnett Const., supra, p. 1131. This conflict among the Circuit Courts of Appeals should be resolved by this Court. 3. THE QUESTION PRESENTED IS ONE OF NATIONAL IMPORTANCE. The national impact of the dispute on the merits between the Authority and the Secretary is not before this Court at this time, nevertheless, the juris- dictional issue now before this Court is ot national importance. There are 27 numerous federal agencies operating in the commercial world for whom Congress has enacted waivers of immunity. Whether these federal agencies with tunds within their control may be sued in the district court regarding Federal guestions is an issue which this Court should decide. CONCLUSION This Petition makes clear that the Circuit Court of Appeals’ ' opinion vacating the declaratory judgment and injunctive relief awarded by the Dis- trict Court to the Authority is (1) in conflict with applicable decisions of this Court and (2) in conflict with decisions of other federal Courts of Appeals. In addition, this 28 jurisdictional issue is of national importance inasmuch as many federal agencies had their immunity waived by Congress are involved in the commercial world. The confusion which now exists between the Circuit Courts of Appeals May provide appellate courts flexibil- ity, but it places an unnecessary hardship on the district court judges, attorneys practicing in the federal courts, and most of all on those who seek to resolve disputes in the federal courts. The issue is ripe for this Court to decide. A Writ of Certiorari should be granted. 29 Respectfully submitted, PORTSMOUTH REDEVELOPMENT AND HOUSING AUTHORITY sy Aorolonhe) on Dror [ Gordon B. Tayloe, J Gordon B. Tayloe, Jr. Ralph W. Buxton Counsel for Petitioner, Portsmouth Redevelopment and Housing Authority P. O. Box 1475 Portsmouth, Virginia 23705 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 1983, three copies of the oregoing Petition for Writ of Certiorari were mailed, postage prepaid, to each of the following: Ms. Freddie Lippstein Attorney Appellate Staff Civil Division, Room 3616 Department of Justice Washington, D. C. 20530 30 Ms. Suzanne Grealy Curt Trial Attorney U. S. Department of Housing and Urban Development Washington, D.C. 20410 Ms. Elsie Munsell United States Attorney c/o Michael L. Rhine Assistant United States Attorney Walter E. Hoffman Federal Court Bldg. Norfolk, Virginia 23501 I further certity that all parties required to be served have been served. } Seton B. Bho r. P. O. Box 1475 Portsmouth, Va. 23705 31 APPENDIX APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 82-2138 Portsmouth Redevelopment and Housing Authority, Appellee, Vv. Samuel R. Pierce, Jr., Secretary of the United States Dept. of Housing and Urban Development; Philip Abrams, Assistant Secretary for Housing, United States Dept. of Housing and Urban De- velopment; I. Margaret White, Area Manager, United States Dept. of Housing and Urban De- velopment, Appellants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Judge. Argued March 9, 1983 Decided April 27, 1983 Before MURNAGHAN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge. Freddi Lipstein, Appellate Staff, Civil Division, Dept. of Justice (Gershon M,. Ratner, Associate General Counsel for Litigation, Howard M. Schmeltzer, Special Assistant, Suzanne Grealy Curt, U.S. Dept. of Housing & Urban Develop- ment; J. Paul McGrath, Assistant Attor- ney General, Elsie Munsell, United States Attorney on brief) for appel- lants; Ralph W. Buxton and Gordon B. Tayloe, Jr. (Cooper, Davis, Kilgore, Parker, Leon & Fennell, P.C., on brief) tor appellee. BUTZNER, Senior Circuit Judge: The Secretary of the Department of Housing and Urban Development (HUD) appeals from the district court's grant of summary judgment awarding Portsmouth Redevelopment and Housing Authority certain declaratory and injunctive relief. Because the district court lacked subject matter jurisdiction, we vacate its order and remand the case with instructions to transfer it to the United States Claims Court. I The Authority is a municipal corporation which operates a number of low income housing facilities in Portsmouth, Virginia. It receives several types of federal subsidies pursuant to an annual contributions A-3 contract (ACC) with HUD and the pro- visions of 42 U.S.C. §§1437-1437n. Supplemental contributions for operating expenses (operating subsidies) are made available to the Authority on an annual basis in accordance with the terms of its ACC and 42 U.S.C. §1437g. At the time the Authority and HUD entered into the ACC, section 1437g provided in part: "The Secretary shall embody the pro- visions for such annual contributions in a contract guaranteeing their payment subject to the availability of funds.” In 1979 Congress amended section 1437g by adding the following clause to the sentence we have quoted: "and such contract shall provide that no disposi- tion of the lower income housing proj- ect, with respect to which the contract A~4 is entered into, shall occur during and for ten years after the period when contributions were made pursuant to such contract unless approved by the Secre- tary." Pub. L. No. 96-153, §211(a) (3), 93 Stat. 1110, 42 U.S.C. §1437g (a) (1) (1979). Pursuant to his general rule making powers under 42 U.S.C. §3535(d), the Secretary of HUD promulgated a regulation that requires each public housing agency operating under an existing annual contributions contract to execute an amendment to its contract embodying the new language of section 1437g(a) (1). See 24 C.F.R. §869.105(a) (1980). The Authority refused to execute an amendment to its ACC, and HUD began withholding operating subsidies. In aA@-§ addition, HUD declined to consider the Authority's application for funds under the Comprehensive Improvement Assistance Program (CIAP), 42 U.S.C. §14371. The parties have stipulated that the CIAP application would have been approved were it not for the Authority's refusal to execute the amendment. The Authority filed a complaint in federal district court seeking to enjoin HUD from withholding operating subsidies due under its ACC. The original com- plaint requested that HUD be required to release $676,085, the amount of funds allegedly wrongfully withheld during fiscal years 1981-82 and 1982-83, and that it be enjoined from requiring the Authority to execute an amendment as a prerequisite to receiving operating A- 6 subsidies or having its CIAP application considered. An amended complaint filed by the Authority excluded the request for specific monetary relief and instead asked the court to "direct an accounting of those sums owed ... as a result of the [Secretary's] erroneous interpreta- tion of [section 1437g(a)(1)] and the resulting wrongful withholding of operating sudsidies and CIAP funds." The Secretary tiled a motion to dismiss for lack of jurisdiction, alleging that the action was essentially a contract claim against the federal government for an amount exceeding $10,000 and jurisdiction thus belonged exclusively to the Claims Court under the Tucker Act, 28 U.S.C. §§1346(a) (2) and 1491. The district court denied A-7 HUD's motion, ruling that HUD had waived its sovereign immunity in 42 U.S.C. §1404a and that the district court had federal question jurisdiction under 28 U.S.C. §1331. The court decided the merits of the case in the Authority's favor and issued the requested declaratory and injunctive relief. We agree with the Secretary that subject matter jurisdiction over this action belongs exclusively in the Claims Court. Because we dispose of this appeal on jurisdictional grounds, we do not address the merits of the Authori- ty's claim except to the extent they bear on the question of jurisdiction. II The Tucker Act establishes three conditions which, if satisfied, vest A-8 subject matter jurisdiction exclusively in the Claims Court. The action must be against the United States, seek monetary relief in excess of $10,000, and be founded upon the Constitution, federal statute, executive regulation, or government contract. See 28 U.S.C. §§1346(a) (2) and 1491. It is not necessary that the United States be denominated as a party. An action against a federal agency or ofticial will be treated as an action against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or intertere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or compel it to act." Dugan v. Rank, 372 A-9 U.S. 609, 620 (1963) (citations omit- ted). This is a suit against a federal official for acts performed within his official capacity, and, consequently, it amounts to an action against the sover- eign. See Southern Sog, Inc. v. Roland, 644 F.2d 376, 380 (5th Cir. 1981); Ippolito-Lutz, Inc. v. Harris, 473 F.Supp. 255, 259 (S.D.N.Y. 1979). Furthermore, any monetary judgment recovered in this case would expend itself on the public treasury. There is no “separate fund" for the payment of operating subsidies within HUD's exclu- sive control, "the origin of which [1s] not the public’ treasury." South- ern Sog, Inc., 644 F.2d at 379; see also Lomas & Nettleton Co. v. Pierce, 636 A-10 F.2d 971, 973-74 (5th Cir. 1981). The funds appropriated to HUD for payment of operating subsidies clearly originate in the public treasury, and they do not cease to be public funds after they are appropriated. / Therefore, both because this is a suit against a tederal offi- cial and any judgment recovered would expend itself on the public treasury, we construe this action as one against the United States for purposes of the Tucker Act. The second requirement for Tucker Act jurisdiction is that the claim seek monetary relief in excess of $10,000. . See, e.g., Appropriations Act, Pub. L. No. 97- , 95 Stat. 1417, 1418 and 1436 (1981). A-11 The Authority's primary objective in this action is to recover money alleged- ly wrongfully withheld by the federal government. The amount involved far exceeds the jurisdictional prerequisite. Although the Authority's amended com- plaint phrases its request for money as a reguest for equitable relief, Claims Court jurisdiction cannot be avoided by framing an essentially monetary claim in injunctive or declaratory terms. Hoopa Valley Tribe v. United States, 596 F.2d 435, 436 (Ct. Cl. 1979). The Authority also contends that in light of the other equitable claims at stake, the Claims Court would be unable to render a complete and effective remedy because it lacks the power to grant injunctive or declaratory relief. A- 12 This argument lacks merit for two reasons. First, where a claim primarily seeks monetary relief, it is improper to deny the Claims Court jurisdiction simply because it cannot grant the precise equitable relief sought. American Science & Engineering, Inc. v. Califano, 571 F.2d 58, 62 (lst Cir., 1978). which essentially requires 3 follows: That regulation provides as ACC Amendment. As a condition for the first HUD approval for payment of Operating Subsidy with respect to the projects under a particular ACC for a PHA fiscal year beginning after the effective date of this part, the PHA and HUD shall enter into an amendment to the ACC for all projects under the Acc. This ACC amendment’ shall provide that the ACC provisions related to project operation shall continue in effect with respect to each project under the ACC for a period of 10 years after the end of the last PHA fiscal year for which Operating Subsidy is paid (Footnote Continued) B-23 an authority which seeks annual operat- ing subsidies to continue operating such units as low income housing units tor a period of ten years after the receipt of the last operating subsidies. In 1980, Congress instituted the Comprehensive Improvement Assistance Program. 42 U.S.C. §1437(1) (1981 Cum.Supp.). This program authorizes the Secretary to make available financial assistance to public housing agencies to improve the physical condition and to upgrade the management and operation of low-rent public housing projects. (Footnote Continued) with respect to the project. 24 C.F.R. §869.105(a) (1980). B-24 III. In 1976 PRHA entered into a consol- idated Annual Contributions Contract with HUD. This agreement effectively consolidated four separate Annual Contributions Contracts entered into by the parties from 1952-1956. The follow- ing projects are covered by this 1976 Annual Contributions Contract: (1) the Dale Home Project which is comprised of 300 dwelling units; (2) the Swanson Home Project which is comprised of 210 dwelling units; (3) the Jeffrey Wilson Home which is comprised ot 400 dwelling units; (4) the Ira Barbour Park Project which is comprised of 665 dwelling units; (5) the Lincoln Park Project which is comprised of 188 dwelling units; and (6) the Washington Park B-25 Project which is comprised of 160 dwelling units. Section 415(D) of the Annual Contributions Contract requires’ the government to make additional annual contributions to PRHA for each fiscal year in an amount which together with’ all other operating receipts of the projects will be sufficient to pay the operating expenditures of such projects in accordance with the operating budgets for such projects as approved by the government, and with respect to a project for which payments of debt services or basic annual contributions will be made for a period of less than torty years, in an amount and (for purposes as approved by the government to provide for necessary initial B-26 expenses not charged to the development of the project. Under paragraph D(1) of Section 415, PRHA is under a duty to submit to the government together with the operating and development budgets for the projects an estimate of the amount of additional annual contribu- tions which will be necessary for the period covered by such budget. The government may approve the estimate in full or in a reduced amount and the amount sO approved pursuant to _ such estimate or any revision thereof shall constitute the maximum amount of addi- tional Annual Contributions payable in respect to the projects tor the period covered by such budget. Sometime in the spring of 1981, HUD, pursuant to 24 C.F.R. §869.105(a), B-27 advised PRHA that it would be required to execute the amendment to the 1976 Annual Contributions Contract as a prerequisite to consideration of PRHA's application for annual operating sub- Sidies. At least some of PRHA's commis- sioners recognized the tremendous implications of such an amend- ment--namely, the prospect of finding satistactory, alternative sources of tunding once the federal operating subsidies ceased and/or exposure to some form of liability should they tail to locate the same--because on July 14, 1981, a resolution was passed at a meeting of the PRHA commissioners, stating that PRHA would only execute the B-28 so-called "Amendatory Agreement No. gn4 to the 1976 Annual Contributions Con- tract under duress. Resolution #893 was communicated by letter dated July 15, ‘ Amendatory Agreement No. 6 would have added the following language to the 1976 Annual Contributions Contract: Notwithstanding any other provision of this contract, no disposition of any low-income housing project covered by this contract shall occur during and for ten years after the period when contributions were made for the operation of the project, unless approved by the Government. In addition, the Government agrees to provide assistance for the operation of any such project, as provided by Section 415 of this contract, as long as the low-income nature of the project is maintained. The provision ot Article II, III, IV and V of this contract, relating to operations, are hereby extended for the duration ot such assistance. B-29 1981 to the area manager of HUD. On August 12, 1981, counsel for HUD's Richmond area office advised PRHA that it would not process and forward to the Office of Finance and Accounting a request for operating subsidies which reflected that PRHA had signed the amendment to the Annual Contributions Contract under duress. PRHA has requested $247,272 in operating subsidies for the balance of fiscal year 1981-1982. Additionally, PRHA has sought $401,813 in operating subsidies as an advancement for fiscal year 1982-1983. The City of Portsmouth recently voted not to furnish to PRHA with the funds necessary to meet its operational demands in the event that B-30 PRHA's request for operating subsidies is denied by HUD. By letter dated March 5, 1982, PRHA wrote to the Richmond area manager of HUD, requesting that PRHA not be com- pelled to execute Amendatory Agreement No. 6 aS a prerequisite to HUD's consid- eration of PRHA's application for CIAP funds. Thereafter, on May 17, 1982, PRHA forwarded to HUD's area manager a copy of Resolution #936 which was adopted on May 5, 1982. Akin to Resolu- tion #893, Resolution #936 expressed PRHA's willingness to execute the clause amending the 1976 Annual Contributions Contract. On August 3, 1982, PRHA submitted its preliminary application for CIAP funds. This application set forth a B-31 breakdown of the ee funding need by PRHA for the years 1981-1985, in addition to any priorities assigned to particular projects. PRHA requested $7,321,028.00 in CIAP funds trom which $2,881,444.00 were to be used for the repair and/or replacement of the aging heat distribution system at the Jetfrey Wilson Project. CIAP funds are earmarked for annual allocation on September 30th. Applica- tions for CIAP funds must be received by the agency on or before November 12th. At that time, they are reviewed with an eye toward a target approval date of November 30th. The parties have stip- ulated that PRHA's application for CIAP funds would have been approved by HUD but for PRHA's continuing refusal to B-32 execute the contractual amendment, which amendment required PRHA to comply with the disputed portions of the 1979 amendment to 42 U.S.C. §1437(g) (a) (1) and the regulation 24 C.F 8. §869.105(a). IV. The legitimacy of the Secretary's actions with regard to the operating funds depends upon the interpretation of that part of §1437(g) (a) (1) which requires him to embody provisions for annual contributions in a _ contract guaranteeing their payment subject to the “availability of funds." The Secretary concedes that the money sought by PRHA has been appropri- ated and is available for disbursement B-33 to PRHA. He argues, however, that the phrase "availability of funds" does not only connote an appropriation by Con- gress, but rather implies any conditions which the Secretary may impose upon a local housing authority in a given fiscal year, provided ‘that any such condition is reasonable and fosters a legitimate governmental purpose. This power purportedly encompasses even the government's unilateral? alteration of rights under existing contracts with private concerns. ° The inclusion of the added requirement has been characterized as a "unilateral" act on the part of the Secretary by the Assistant General Counsel of Housing (See Gelletich Deposition at 27). B- 34 It has been held that, unless Congress provides otherwise, when it contracts with a private party, the United States is subject to the same laws and principles which govern indi- vidual parties to a contract. Priebe v. United States, 332 U.S. 407 (1947); United States v. Bostwick, 94 U.S. [4 Otto) 53 (1876). Although the United States is not included within the Constitutional prohibition preventing states from passing laws which impair the obligations of contracts, it is prohibited from depriving persons or corporations of property without due process of law. The government of the United States is as much bound by the terms and obligations of its contracts as is an individual. If the federal B-35 government repudiates its obligations under a valid agreement, its acts constitute as much a repudiation, with all the wrong and reproach that that term implies, as it would be if the wrongdoing party had been as_ state, municipality, or a citizen. The Sink- ing-Fund Cases, 99 U.S. (9 Otto) 700, 719 (1878). See Lynch v. United States, 292 U.S. 571 (1934). Neither the language set forth in the 1976 Annual Contributions Contract nor the language of §1437(g) (a) (1) supports the Secretary's interpretation that an existing agreement guaranteeing the annual distribution of operating subsidies can be arbitrarily and B- 36 unilaterally°® altered by the government simply because the government believes that any such change would further an interest, albeit reasonable, of the federal government. What is clear from the language of §1437(g) (a)(1) is that any future annual contributions contract shall provide that no disposition’ of 6 The evidence indicated that HUD officials not only perceived the Secretary's action as unilateral in nature, but that the regulation appeared to be inconsistent with the statute. (See August 12, 1982, letter from HUD's regional counsel to Michael Kay). : The term "disposition" has been defined as the parting with, alienation of or giving up property. BLACK'S LAW DICTIONARY 423 (5th ed. 1979). The statute, therefore, appears to speak to a housing authority's desire to sell or alienate its projects. the low-income housing project, with respect to which such future contract is entered into, shall occur during and for ten years after the period when contri- butions were made pursuant to- such contract unless approved by the Secre- tary. Even this statute with its most liberal construction, in no way refers to any duty or vests any power in the Secretary to alter the right of a party under an existing Annual Contributions Contract by requiring amendment thereto sufficient to condition that party's annual receipt of operating subsidies upon the maintenance of the projects for ten years after the federal subsidies have ceased. By compelling the execution of such an amendment, the Secretary has B- 38 arbitrarily imposed upon PRHA additional duties not contemplated by the parties at the time the 1976 Annual Contribu- tions Contract was executed. The Secretary's acts do not amount to a legitimate exercise of his wholly independent rulemaking powers, which would leave the basic rights and obliga- tions ot the parties under the contract intact. To the contrary, the Secre- tary's repudiation not only impairs the contractual rights of PRHA, but eftec- tively undermines the basic thrust of a contract which guarantees the payment of operating subsidies. See Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 279-80 n. 33 (1969). This Court also cannot overlook the inevitable dilemma facing PRHA and its B-39 tenants should the Secretary be permit- ted to encumber the contract with an additional duty. Beginning in the year 1992, PRHA would be forced to locate an adequate, alternate source of funding for a period of ten years to replace the federal subsidies in order to maintain operation of its low income housing projects. If recent events portend the tuture, it will be extremely difficult for PRHA to obtain the funding necessary to operate its projects once the federal government subsidies are no longer forthcoming. How can the commissioners of PRHA possibly assume that once the federal subsidies have ceased the City of Portsmouth will see tit to furnish the necessary operating subsidies for ten years when the City has adamantly B-40 refused to help PRHA out of the predica- ment in which it now finds itself. Having determined that Congress, througn §1437(g) (a) (1) could not and did not intend to condition the receipt of annual operating subsidies upon the execution of the amendment to PRHA's existing 1976 Annual Contributions Contract, this Court concludes that the Secretary's decision to refuse to consider PRHA's application for operat- ing subsidies absent the execution of such an amendment is arbitrary, capri- cious, without statutory basis and in contravention of the plaintiff's rights under contract and the Fifth Amendment. Vv. The Court will now address the Secretary's unwillingness to consider B-41 PRHA's application for CIAP funds due to PRHA's decision not to execute the amendment to the 1976 Annual Contribu- tions Contract. It is undisputec that local housing authorities do not have an absolute right to receive CIAP funds. Under 42 U.S.C. §1437(1) (c) (2), compre- hensive improvement assistance tor existing public housing may be made available for projects which are owned by public housing agencies, are operated as rental housing projects, receive assistance under Section 1437(c) or Section 1437(g) of this title, are not assisted under §1437(f) of this title and meet such other requirements consis- tent with the purpose of this section as the Secretary may prescribe. 42 U.S.C. §1437(1) (c) (1) - (4) (Cum. Supp. 1981). B- 42 The purposes of the CIAP program are set forth succinctly in subparagraph (a) of §1437(1). The purposes of the CIAP program are to improve the physical condition of existing public housing projects and to upgrade the management and operation of such projects in order to assure that such projects continue to be available to serve low income tam- ilies. 42 U.S.C. §1437(a) (1) and (2) (emphasis added). There is no language in this subsection or in the remaixing portions of §1437(1) which would suggest that one of the purposes of the CIAP funding program is to condition the consid- eration of an application for CIAP funds on the execution of an amendment to the Annual Contributions Contract. Congress B-43 specitically omitted the language embodied in §1437(g) from §1437(1). If they intended it to apply, they merely should have added it. Congress estab- lished these funds for the physical improvement and upgrading of existing projects. S It is readily apparent from the face of §1437(1) that these funds were not intended to be used as a means for extending the duration of the low income character of the projects because unlike 8 Congress should certainly have conditioned these funds had it chosen to do so. The Secretary endeavors to utilize awarding of funds to update one of Portsmouth's projects while requiring Portsmouth to continue low income housing for 10 years after cessation of funds for 5 other projects. B-44 companion §1437(g) (a) (1), this statute does not speak to any need to incorpo- rate into the contract for CIAP tunds the language that no disposition of the low-income housing project, with respect to which the contract is entered into, shall occur during and for ten years atter the period when contributions were made pursuant to such contract unless approved by the Secretary. The Secretary seeks to do indirect~- ly, through PRHA's application for CIAP funds, what he clearly cannot do direct- ly through the PRHA's application for operating subsidies; that is to force an amendment to the 1976 Annual Contribu- tions Contract. For the same reasons which governed its decision regarding the operating subsidies, the Court views B-45 the rights of PRHA and its tenants under the 1976 Annual Contributions Contract as inviolate and subject only to the “availability” of funds" for the annual contributions. As such, it cannot countenance the Secretary's attempt to change the rights and duties established under that contract by utilization of tinancial assistance which Congress has provided to local housing authorities under a separate statute, for distinct reasons and by different rules. The Secretary simply has no authority to condition PRHA's application for ‘AP funds on the execution of the amendment to the parties' 1976 Annual Contribu- tions Contract. This opinion is being entered on the 29th day of November, 1982 in order B-46 to meet the Secretary's target date for the award of the funds of November 30, 1982, and, therefore, the Court reserves the right to correct, amplify, modify and elaborate on its reasons in a supplemental opinion. United States District Judge At Nortolk, Virginia November 29, 1982 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division PORTSMOUTH REDEVELOPMENT AND HOUSING AUTHORITY, Plaintiff, Vv. CIVIL ACTION NO. 82-772-N SAMUEL R. PIERCE, JR., SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants. ORDER Upon consideration of the entire matter and in accordance with the contemporaneous memorandum opinion, summary judgment is entered in favor of the Portsmouth Redevelopment and Housing B-48 Authority, and it is hereby ORDERED and declared as follows: (1) That the temporary injunction entered by written order of this Court on October 28, 1972 is hereby renewed and extended and made permanent except as the same may be modified in accor- dance with the memorandum opinion and/or turther order of this Court or any court of competent jurisdiction. (2) That Section 21l(a) of the Housing and Community Development Amendment of 1979 now codified as 42 U.S.C. §1437(g) (a) (1) pertaining to the disposition of the low-income housing projects, does not apply under these facts to operating subsidies provided for in the Annual Contributions Contract entered into by the Portsmouth B- 49 Redevelopment and Housing Authority, Contract No. P-5515 dated July 1, 1976, in the manner and form as maintained by the Secretary under Regulation 24 C.F.R. §869.105(a). (3) That under the facts in this case, the present application of the Portsmouth Redevelopment and Housing Authority now pending with the Secretary for Comprehensive Improvement Assistance Program Funds ("CIAP") under authority of 42 U.S.C. §1437(1) shall be con- sidered by the Secretary insofar as it may pertain to projects contained within Contract No. P-5515, dated July 1, 1976, without regard to whether or not an amendment to said contract is entered into by the Portsmouth Redevelopment and Housing Authority agreeing to B-50 continue to operate the projects con- tained within said contract as low-income housing for a period of ten years after the receipt of funds in accordance with 24 C.F.R. §869.105(a). (4) That the Secretary, pursuant to its Contract P-5515 with the Portsmouth Redevelopment and Housing Authority, continue to fund _ further operating subsidies in accordance with this contract, so long as funds are available, and the Court finds that currently there is “availability of funds" in accordance with said contract and in accordance with 42 4U«.S.C. §1437(g) prior to its amendment and the current interpretation thereof by the Secretary in 24 C.F.R. §869.105(a). B-51 (5) That the target date of November 30, 1982 being tomorrow, that the CIAP funds requested by the City of Portsmouth in accordance with this opinion be considered and the Secretary make a determination without regard to 24 C.F.R. §869.105(a) as said regulation does not pertain under the facts of this case to the existing contract of the Portsmouth Redevelopment and Housing Authority with the Secretary contrary to the interpretation placed on said regulation but the said Secretary. (6) That an accounting be and the same is hereby ORDERED to make a deter- mination of what funds the Portsmouth Redevelopment and Housing Authority may be entitled to and this matter shall remain on the docket for an accounting B-52 of said funds pursuant to the equitable jurisdiction of this Court to authorize an accounting of funds due and owing the Portsmouth Redevelopment and Housing Authority. (7) That this order and opinion may be modified and altered in further- ance of the memorandum opinion and upon further consideration inasmuch as this date, November 29, 1982, is one day prior to the target date of November 30, 1982, when the CIAP funds are targeted to be awarded by the Secretary. (8) That this matter is continued on this docket for turther order of this Court. B- 53 It is so ORDERED. /s/ Robt. G. Doumar United States District Judge Norfolk, Virginia November 29th, 1982. B-54 APPENDIX C PERTINENT PROVISIONS OF STATUTES AND REGULATIONS INVOLVED 28 U.S.C. §1331 Federal Question The district courts shall have Original jurisdiction of all civil actions arising under the Constitu- tion, laws, or treaties of the United States. THE TUCKER ACT 28 U.S.C. §1346(a) (2) "United States as Defendant" (a) The district courts shall have original jurisdiction concurrent with the United States Claims Court, of: x « * (2) Any other civil action or Claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitu- tion, 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 liguidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated oor unliquidated damages in cases not sounding in tort which are subject to sections 8(g) (1) and 10(a)(1) of the Con- tract Disputes Act of 1978. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. 28 U.S.C. 1491 (a) Claims against United States Generally (a) (1) The United States Claims Court shall have jurisdic- tion to render judgment upon any claim against the United States founded either upon the Constitu- tion, or any Act of Congress or any regulation of an executive depart- ment, Or upon any express or implied contract with the United States, or for liquidated or C=2 unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronau- tics and Space Administration shall be considered an express or implied contract with the United States. (2) To provide an_- entire remedy and to complete the relief afforded by the judgment, the court may, aS an incident of and collat- eral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applica- ble records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any adminis- trative or executive body or official with such direction as it may deem proper and just. The Claims Court shall have jurisdic- tion to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978. (3) To afford complete reliet on any contract claim brought C=-3 before the contract is awarded, the court shall have exclusive juris- diction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercis- ing this jurisdiction, the court snall give due regard to the interests of national defense and national security. MONEY AND FINANCING-- APPROPRIATION ACCOUNTING 31 U.S.C. §1502. BALANCES AVAILABLE (a) The balance of an appro- priation oor fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period ot availability and obligated consistent with section 1501 of this title. However, the appropriation or fund is not available for expenditure for a period beyond the period otherwise authorized by law. (b) A provision of law requiring that the balance of an appropriation or fund be returned to the general fund ot the Treasury C=4 at the end of a definite period does not aftect the status of lawsuits or rights of action involving the right to an amount payable from the balance, HOUSING ACT OF 1948 42 U.S.C. §1404a. United States Housing Authority; right to sue, The United States Housing Authority may sue and be sued only with respect to its functions under this chapter, and sections 1501 to 1505 of this title, Funds made available for Carrying out the functions, powers, and duties of the Authority (including appro- priations therefor, which are authorized) shall be available, in such amounts as may from year to year be authorized by the Congress, for the administrative expenses of the Authority, Notwithstanding any other provisions of law except Provisions of law enacted after August 10, 1948 expressly in limitation hereof, the United States Housing Authority, or any State or local public agency administering a low-rent housing Project assisted pursuant to this chapter or sections 150] and 1505 of this title shall continue to have the right to maintain an C-5 action or proceeding to recover possession of any housing accommo- dations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered, and, in determining net income for the purposes of tenant eligibility with respect to low-rent housing projects assisted pursuant to this chapter’ and sections 1501 to 1505 of the title, the United States Housing Authority is authorized, where it finds such action equitable and in the public interest, to exclude amounts or portions thereof paid by the United States Government for disability or death occurring in connection with military service. UNITED STATES HOUSING ACT OF 1937 42 U.8.C. “$1437gla) {Prior to 1979} Annual contributions for operation of low-income housing projects (a) In addition to the contributions authorized to be made for the purposes specified in section 1437c of this title, the Secretary may make annual contribu- tions to public housing agencies for the operation of low-income housing projects. | The C-6 contributions payable annually under this section shall not exceed the amounts which the Secretary determines are required (1) to assure the low-income character of the projects involved, and (2) to achieve and maintain adequate operating services and _ reserve funds. The Secretary shall embody the provisions for such annual contributions in a contract guaran- teeing their payment subject to the availability of funds. For pur- poses of making payments under this section, the Secretary shall establish standards for costs ot operation and reasonable projec- tions of income, taking into account the character and location of the project and characteristics of the families served, or the costs of providing comparable services as determined in accor- dance with criteria or a formula representing the operations of a prototype well-managed project. SECTION 211(a), HOUSING AND COMMUNITY DEVELOPMENT AMENDMENTS OF 1979 Sec. 2ll(a) Section 9(a) of the United States Housing Act of 1937 is amended-- (1) by inserting "(1)" after "(a)"; C-/ (2) by striking out "(1)" and "(2)" in the second sentence and inserting in lieu thereof "(A)" and “as (3) by inserting the following before the period at the end of the third sentence: ", and such con- tract shall provide that no dispo- sition of the low-income housing project, with respect to which the contract is entered into, shall occur during and for ten years after the period when contributions were made pursuant to such contract unless approved by the Secretary"; and. . « -» 42 U.S.C. §1437g(a) (1) [After 1979) Annual contributions for operation of lower-income housing projects (a) determination of amounts; contract authorization, standards of payments. In addition to the contribu- tions authorized to be made for the purposes specified in section 1437c of this title, the Secretary may make annual contributions to public housing agencies for the operation of lower income housing projects. The contributions payable annually under this section shall not exceed the amounts which the Secretary determines are required (A) to assure the lower income character of the projects involved, (B) to achieve and maintain adequate C-8 operating services and reserve funds and (C) with respect to housing projects developed under the Indian and Alaskan Native housing program assisted under this chapter, to provide’ funds (in addition to any other operating costs contributions approved by the Secretary under this section) as determined by the Secretary to be required to cover the administra- tive costs to an Indian housing authority during the development period of a project approved pursuant to section 1437c of this title and until such time as the project is occupied. The Secretary shall embody provisions for such annual contributions in a contract guaranteeing their payment subject to the availability of funds, and such contract shall provide that no disposition of the lower income housing project, with respect to which the contract is entered into, shall occur during and for ten years after the period when contri- butions were made pursuant to such contract unless approved by the Secretary. For purposes of making payments under this section, the Secretary shall establish standards for costs of operation and reason- able projections of income, taking into account the character and location of the project and charac- teristics of the families served, C-9 26 C. upon or the costs of providing compara~ ple services as determined in accordance with criteria or a tormula representing the operations of a prototype well-managed proj- ect. REGULATION F.R. §869.105(a). Extension of ACC Payment of Operating Subsidy. (a) ACC Amendment. As a condition for the first HUD approval for payment of Operating Subsidy with respect to the projects under a particular ACC for a PHA fiscal year beginning after the effective date of this Part, the PHA and HUD shall enter into an amendment to the ACC for all projects under the ACC. This ACC amendment’ shall provide that the ACC provisions related to project operation shall continue in effect with respect to each project under the ACC for a period of 10 years after the end of the last PHA fiscal year for which Operating Subsidy is paid with respect to the project. C-10 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0093%3A1. Public record. Not legal advice.