United States Court of Appeals
for the Federal Circuit
______________________
LUMMI TRIBE OF THE LUMMI RESERVATION,
WASHINGTON, LUMMI NATION HOUSING
AUTHORITY, HOPI TRIBAL HOUSING
AUTHORITY, FORT BERTHOLD HOUSING
AUTHORITY,
Plaintiffs-Appellees
FORT PECK HOUSING AUTHORITY,
Plaintiff
v.
UNITED STATES,
Defendant-Appellant
______________________
2016-2196
______________________
Appeal from the United States Court of Federal
Claims in No. 1:08-cv-00848-EGB, Senior Judge Eric G.
Bruggink.
______________________
Decided: September 12, 2017
______________________
JOHN FREDERICKS, III, Fredericks Peebles & Morgan,
LLP, Mandan, ND, argued for plaintiffs-appellees. Also
represented by JEFFREY S. RASMUSSEN, Louisville, CO.
2 LUMMI TRIBE v. UNITED STATES
STEVEN J. GILLINGHAM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by DAVID ALAN LEVITT, ROBERT E.
KIRSCHMAN, JR., BENJAMIN C. MIZER; GARY ALAN NEMEC,
DAVID A. SAHLI, PERRIN WRIGHT, United States Depart-
ment of Housing and Urban Development, Washington,
DC.
______________________
Before PROST, Chief Judge, O’MALLEY, and CHEN, Cir-
cuit Judges.
O’MALLEY, Circuit Judge.
The government seeks review of a September 30, 2015
order of the Court of Federal Claims (the “Claims Court”).
See Order, Lummi Tribe of the Lummi Reservation v.
United States, No. 08-848C (Fed. Cl. Sept. 30, 2015), ECF
No. 121. In that order, the Claims Court reaffirmed its
prior ruling that the Native American Housing Assistance
and Self-Determination Act of 1996 (“NAHASDA”) is
money mandating, giving the Claims Court jurisdiction
over appellees’ claims. Id. On June 9, 2016, this court
granted the government’s petition for interlocutory appeal
to “ensure that the Court of Federal Claims is the court of
proper jurisdiction before requiring it and the parties to
undergo extensive unnecessary proceedings.” Order at 3,
Lummi Tribe of the Lummi Reservation v. United States,
No. 2016-124 (Fed. Cir. June 9, 2016), ECF No. 1-2. For
the following reasons, we vacate and instruct the Claims
Court to dismiss this action for lack of subject-matter
jurisdiction.
BACKGROUND
Congress enacted NAHASDA, 25 U.S.C. §§ 4101–
4243, to fulfill the federal government’s responsibility to
Indian tribes and their members “to improve their hous-
ing conditions and socioeconomic status so that they are
LUMMI TRIBE v. UNITED STATES 3
able to take greater responsibility for their own economic
condition.” Id. § 4101(4). In particular, NAHASDA
established an annual block grant system, whereby
Indian tribes receive direct funding in order to provide
affordable housing to their members. The relevant sec-
tions of NAHASDA require HUD to make grants accord-
ing to a regulatory formula based on several factors,
including: (1) “[t]he number of low-income housing dwell-
ing units . . . owned or operated” by the tribes on
NAHASDA’s effective date; (2) the number of Indian
families and extent of poverty and economic distress
within a tribe’s area; and (3) “[o]ther objectively measura-
ble conditions as [HUD] and the Indian tribes may speci-
fy.” Id. § 4152(b)(1)–(3).
The dwelling units described in factor (1) are called
Formula Current Assisted Stock (“FCAS”). Each eligible
dwelling unit in a tribe’s FCAS is entitled to a sum cer-
tain amount of funding each year based upon a calculated
operating subsidy and modernization allocation. HUD
regulations establish which units initially count as FCAS
in the formula, and when those units no longer qualify
(e.g., when they have been or could have been conveyed to
homebuyers). 24 C.F.R. §§ 1000.312, 1000.314, 1000.318.
Once awarded these subsidies, grantee tribes are limited
in how and when they may dispense the funds, which can
be used only on statutorily specified activities in accord-
ance with program requirements. See, e.g., 25 U.S.C.
§ 4139; 2 C.F.R. § 200.313–314.
In the event of a grantee’s failure to comply substan-
tially with NAHASDA, HUD can recapture grant funds
by: “(A) terminat[ing] payments under this [Act] to the
recipient; (B) reduc[ing] payments [by the amount not
expended in compliance with the Act]; (C) limit[ing] the
availability of payments [to compliant activities]; or
(D) . . . provid[ing] a replacement tribally designated
housing entity for the recipient.” 25 U.S.C. § 4161(a)(1).
4 LUMMI TRIBE v. UNITED STATES
Appellees are an Indian tribe and three tribal housing
entities (collectively, “the Tribes”) who qualified for and
received NAHASDA block grants. Lummi Tribe of the
Lummi Reservation v. United States, 99 Fed. Cl. 584, 588
(2011) (“Lummi I”). In 2001, a HUD Inspector General
report concluded that, since the enactment of NAHASDA,
HUD had improperly allocated funds to the Tribes be-
cause the formula that HUD applied had included hous-
ing that did not qualify as FCAS. Id. HUD informed the
Tribes of the amount overfunded, the regulations on
which HUD based its decision, and the housing units that
HUD found ineligible. Id. at 599. HUD also provided the
Tribes with the opportunity to dispute HUD’s findings
regarding FCAS unit eligibility or appeal the determina-
tions of overfunding. Id. Thereafter, HUD eliminated the
ineligible units from the FCAS data and recouped the
excess funding by deducting the amount overfunded from
subsequent grant allocations—$863,236 from Lummi,
$249,689 from Fort Berthold, and $964,699 from Hopi.
Lummi Tribe of the Lummi Reservation v. United States,
106 Fed. Cl. 623, 625 (2011) (“Lummi II”).
The Tribes brought suit in the Claims Court under
the Tucker Act and the Indian Tucker Act, 28 U.S.C.
§§ 1491(a)(1) and 1505, respectively, alleging that HUD
improperly deprived them of grant funds to which they
were entitled. In relevant part, the Tribes alleged that:
(1) HUD misapplied the NAHASDA formula by inappro-
priately removing housing units from the FCAS data,
which led to decreased grant amounts; and (2) HUD was
obligated by 25 U.S.C. § 4165 to provide the Tribes with a
hearing during which they could respond to the HUD
report, but HUD failed to do so. Lummi I, 99 Fed. Cl. at
591; see generally 25 U.S.C. § 4165 (“The Secretary shall
provide each recipient that is the subject of a report made
by the Secretary . . . . notice that the recipient may review
and comment on the report during a period of not less
than 30 days . . . .”).
LUMMI TRIBE v. UNITED STATES 5
The government moved to dismiss the claims for lack
of jurisdiction, arguing in particular that NAHASDA’s
provision for block grants is not money mandating.
Lummi I, 99 Fed. Cl. at 591. The Claims Court disagreed,
noting that NAHASDA provides that the Secretary “shall
. . . make grants” and “shall allocate any amounts” among
Indian tribes that comply with certain requirements. Id.
at 594. The Claims Court concluded that “the Secretary
is thus bound by the statute to pay a qualifying tribe the
amount to which it is entitled under the formula,” mean-
ing that the statute “can fairly be interpreted as mandat-
ing the payment of compensation by the government.” Id.
(citing Greenlee Cty. v. United States, 487 F.3d 871, 877
(Fed. Cir. 2007)).
Initially, the Claims Court dismissed the Tribes’ pro-
cedural claims, finding that HUD had provided “full
notice of the government’s claims along with a meaningful
opportunity to respond.” Id. at 599. The Tribes moved for
reconsideration on this point and, on September 29, 2011,
the Claims Court vacated its decision. Lummi Tribe II,
106 Fed. Cl. 623, 624 n.1. The Tribes amended their
complaint, re-alleged that HUD had violated the proce-
dural requirements of NAHASDA, and argued for the first
time that those violations rendered the change in grant
funds an illegal exaction. Id. at 625.
The government thereafter filed another motion to
dismiss, arguing that HUD had complied with all relevant
NAHASDA provisions. Id. at 623–24. The Claims Court
disagreed, holding that “[p]roviding [the Tribes] with the
opportunity for a hearing in this case before adjusting
their grant amounts was . . . something HUD was re-
quired—but failed—to do.” Id. at 633. The issue of
whether HUD, on the merits, had properly determined
the Tribes’ FCAS units when applying NAHASDA formu-
lae was reserved for trial. See Lummi Tribe of the Lummi
Reservation v. United States, 112 Fed. Cl. 353, 355 n.2
(2013) (“Lummi III”).
6 LUMMI TRIBE v. UNITED STATES
The case was then transferred to Senior Judge Brug-
gink, who ordered supplemental briefing to address a
number of questions, including whether NAHASDA is
money mandating and whether NAHASDA’s status as
such affected the illegal exaction claim. See Order, Lum-
mi, No. 08-848C (Fed. Cl. Sept. 30, 2015), ECF No. 121.
The Claims Court reaffirmed its holding that NAHASDA
is money mandating, but held that “the failure to give a
hearing under § 4165 does not, on its own, support an
illegal exaction claim.” Id. at 5. The court explained that
“the substantive provisions of NAHASDA [are money
mandating], not its procedural elements,” and “nothing in
the statutory framework . . . suggests that the remedy for
failure to afford procedural rights is, without further proof
of entitlement, the payment of money.” Id.
Because the Claims Court’s finding that NAHASDA
itself is money mandating was therefore dispositive on the
issue of jurisdiction, the government sought and obtained
certification for interlocutory appeal. The Tribes, mean-
while, sought reconsideration of the Claims Court’s illegal
exaction holding, which the Claims Court denied. Order,
Lummi, No. 08-848C (Fed. Cl. Apr. 20, 2016), ECF No.
138; Order, Lummi, No. 2016-124 (Fed. Cir. June 9,
2016), ECF No. 1-2.
STANDARD OF REVIEW
“Subject matter jurisdiction is a question of law that
we review de novo.” Litecubes, LLC v. N. Light Prods.,
523 F.3d 1353, 1360 (Fed. Cir. 2008). In particular, we
“review[] without deference the trial court’s statutory
interpretation.” Samish Indian Nation v. United States,
419 F.3d 1355, 1364 (Fed. Cir. 2005). The “plaintiff bears
the burden of establishing subject-matter jurisdiction by a
preponderance of the evidence.” Hopi Tribe v. United
States, 782 F.3d 662, 666 (Fed. Cir. 2015).
LUMMI TRIBE v. UNITED STATES 7
DISCUSSION
The Tucker Act itself does not create a substantive
cause of action; in order to come within the jurisdictional
reach and the waiver of sovereign immunity in the Tucker
Act, a plaintiff must identify a separate source of substan-
tive law that creates the right to money damages. United
States v. Mitchell, 463 U.S. 206, 216 (1983); United States
v. Testan, 424 U.S. 392, 398 (1976). In the parlance of
Tucker Act cases, that source must be “money-
mandating.” See Mitchell, 463 U.S. at 217; Testan, 424
U.S. at 398. On appeal, the government makes a single
affirmative argument: the Claims Court erred in finding
NAHASDA to be a money-mandating statute, such that
the Claims Court is without jurisdiction over this case.
We agree.
A statute is money mandating if either: (1) “it can
fairly be interpreted as mandating compensation by the
Federal Government for . . . damages sustained”; or (2) “it
grants the claimant a right to recover damages either
expressly or by implication.” Blueport Co., LLC v. United
States, 533 F.3d 1374, 1383 (Fed. Cir. 2008) (quoting
Mitchell, 463 U.S. at 216–17 (internal quotation marks
omitted)). NAHASDA does neither, as revealed by the
ultimately equitable nature of the Tribe’s claims. We find
National Center for Manufacturing Sciences v. United
States, 114 F.3d 196 (Fed. Cir. 1997), instructive on this
point. The statute at issue in that case stated that “not
less than $40,000,000 of the funds appropriated in this
paragraph shall be made available only for the [plaintiff].”
Nat’l Ctr., 114 F.3d at 198 (quoting Pub. L. No. 103-139,
107 Stat. 1418, 1433 (1993)). The Air Force only released
$24,125,000, and so the plaintiff brought suit in district
court, seeking an order directing the Air Force to release
the remainder. On the Air Force’s motion, the district
court transferred the case to the Claims Court, a transfer
that this court reversed on appeal. Specifically, relying on
Bowen v. Massachusetts, 487 U.S. 879 (1988), this court
8 LUMMI TRIBE v. UNITED STATES
outlined “the kinds of statutory claims for which a Tucker
Act remedy is available”—and found the statute at issue
wanting:
Some portions of NCMS's complaint suggest that
NCMS seeks a “naked money judgment” for
$15,875,000 against the government. Other por-
tions of the complaint, however, make clear that
NCMS anticipates the need for injunctive relief,
such as an order enjoining the defendants from
obligating and disbursing particular funds that
should be reserved for NCMS, and “[e]xtending
the time of obligation” in the Appropriations Act
to preserve the status quo. Looking behind the
complaint, moreover, we conclude that it is doubt-
ful that a simple money judgment in NCMS’s fa-
vor would be appropriate, even if NCMS is correct
in its claim that it is entitled to have the remain-
ing $15,875,000 referred to in the Appropriations
Act allotted to its account.
The Appropriations Act directs that the appropri-
ated funds be used “[f]or expenses necessary for
basic and applied scientific research, develop-
ment, test and evaluation, including maintenance,
rehabilitation, lease, and operation of facilities
and equipment, as authorized by law.” Pub. L.
No. 103–139, 107 Stat. 1418, 1433 (1993). Thus,
as NCMS acknowledged at oral argument, it
would not be entitled to a monetary judgment that
would allow it to use the funds appropriated under
the Act for any purpose, without restriction. In-
stead, the Act requires that NCMS use any money
disbursed from the appropriated funds to perform
the basic and applied research functions called for
in the Act. The Act thus contemplates a coopera-
tive, ongoing relationship between NCMS and the
Air Force in the allocation and use of the funds.
LUMMI TRIBE v. UNITED STATES 9
Nat’l Ctr., 114 F.3d at 201 (emphases added). According-
ly, we determined that the district court was not “di-
vest[ed] . . . of the authority to conduct APA review in this
case,” because “the remedy provided by a Tucker Act suit
in the [Claims Court would] not serve as the ‘other ade-
quate remedy in a court.’” Id. at 202 (quoting 5 U.S.C.
§ 704); see generally 5 U.S.C. § 704 (“Agency action made
reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to
judicial review.”) (emphasis added).
The Tribes correctly observe that National Center did
not explicitly hold that the Claims Court was without
jurisdiction to hear the plaintiff’s claim. Whether or not
that conclusion can be fairly implied from the reasoning
in National Center, the reasoning alone remains instruc-
tive. 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 nomi-
nally 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 particu-
lar 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.
To label the disbursement of funds so thoroughly
scrutinized and cabined as a remedy for “damages” would
strain the meaning of the term to its breaking point. As
National Center highlights, that relief is equitable—and
thus not within the Claims Court’s purview. “Although
the Tucker Act has been amended to permit the [Claims
Court] to grant equitable relief ancillary to claims for
monetary relief,” there must be an underlying claim for
10 LUMMI TRIBE v. UNITED STATES
“‘actual, presently due money damages from the United
States.’” Nat’l Air Traffic Controllers Ass’n v. United
States, 160 F.3d 714, 716 (Fed. Cir. 1998) (quoting United
States v. King, 395 U.S. 1, 3 (1969)) (emphasis added). “It
is not enough that the court’s decision . . . will ultimately
enable the plaintiff to receive money from the govern-
ment.” Id. at 716; see generally Katz v. Cisneros, 16 F.3d
1204, 1208–09 (Fed. Cir. 1994) (“Hollywood Associates
seeks payments to which it alleges it is entitled pursuant
to federal statute and regulations; it does not seek money
as compensation for a loss suffered. . . . That a payment of
money may flow from a decision that HUD has erroneous-
ly interpreted or applied its regulation does not change
the nature of the case.”).
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 author-
ize a free and clear transfer of money. Accordingly, the
Claims Court erred in finding NAHASDA to be money
mandating.
The Tribes contend, in the alternative, that alleged
procedural failures associated with HUD’s grant decision
resulted in a per se illegal exaction, independently confer-
ring jurisdiction on the Claims Court. We disagree. An
illegal exaction claim must be based on property taken
from the claimant, not property left unawarded to the
claimant, rendering the Tribes’ exaction claim invalid on
its face. “An ‘illegal exaction’ . . . involves money that was
‘improperly paid, exacted, or taken from the claimant in
contravention of the Constitution, a statute, or a regula-
tion.’” Norman v. United States, 429 F.3d 1081, 1095
(Fed. Cir. 2005) (quoting Eastport S.S. Corp. v. United
States, 372 F.2d 1002, 1007 (Ct. Cl. 1967)) (emphasis
added). The Tribes have not and cannot provide legal
LUMMI TRIBE v. UNITED STATES 11
support for the notion that the failure to disburse proper-
ty that was never in the claimant’s possession or control
constitutes an exaction. Accordingly, we reject their
illegal exaction claim as an alternative basis for the
Claims Court’s jurisdiction.
Although we adopt the government’s position, we
have severe misgivings about the incongruency of its
stances in this and related litigation. In particular, it
appears that the government has taken, essentially, the
opposite position in at least one of our sister circuits in
parallel litigation. See Modoc Lassen Indian Hous. Auth.
v. United States Dep’t of Hous. and Urban Dev., 864 F.3d
1212, 2017 WL 3140877 (10th Cir. July 25, 2017). In
Modoc, an appeal from a federal district court action that
was brought pursuant to NAHASDA, the government
argued that “the district court nevertheless erred in
ordering HUD to return the alleged [NAHASDA] over-
payments to the Tribes because . . . such an order
amounts to an award of ‘money damages’ and therefore
runs afoul of 5 U.S.C. § 702.” Id. at *2. “[S]ection 702 . . .
waives sovereign immunity for non-monetary claims
against federal agencies,” Delano Farms Co. v. California
Table Grape Comm’n, 655 F.3d 1337, 1344 (Fed. Cir.
2011) (emphasis added), whereas the Tucker Act is the
appropriate vehicle for pursuing “the right to money
damages.” Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (emphasis added). Two of the Tenth
Circuit’s three opinions found the government’s argument
persuasive, holding that § 702 was not the correct vehicle
for the Tribes’ claims. Modoc, 2017 WL 3140877, at *10. 1
1 Because Modoc was an appeal from a federal dis-
trict court action, the Tenth Circuit had no occasion to
consider the Tucker Act’s jurisdictional requirement that
12 LUMMI TRIBE v. UNITED STATES
At oral argument before this court, the government
appeared to even confirm that there is some tension in the
positions that it has taken. Oral Argument at 13:34–41,
available at http://oralarguments.cafc.uscourts.gov/default
.aspx?fl=2016-2196.mp3 (stating that, if this case were
transferred from the Claims Court, “the [district] court
could entertain [the claims], but in the end it would be
able to grant no remedy, and that’s what we’re saying in
the Tenth Circuit”). And yet, without irony, the govern-
ment accuses the Tribes of adopting an unfair “gotcha”
strategy in this litigation. Appellant Br. 42. Of the
government’s two faces, we find the one presented to the
Claims Court—the one arguing that this “is not a suit for
Tucker Act damages”—to be the correct one. Id. at 16.
CONCLUSION
For the foregoing reasons, the Claims Court’s order is
vacated, and we instruct the Claims Court to dismiss this
action for lack of subject-matter jurisdiction.
VACATED AND DISMISSED
a plaintiff identify a separate source of substantive law
that is “money-mandating.”