Boaz Housing Authority v. United States

Case: 19-2325 Document: 49 Page: 1 Filed: 04/16/2021

United States Court of Appeals
for the Federal Circuit
______________________

BOAZ HOUSING AUTHORITY, ET AL.,
Plaintiffs-Appellees

v.

UNITED STATES,
Defendant-Appellant
______________________

2019-2325
______________________

Appeal from the United States Court of Federal Claims
in No. 1:17-cv-01797-EDK, Judge Elaine Kaplan.
______________________

Decided: April 16, 2021
______________________

CARL COAN, III, Coan & Lyons, Washington, DC, for
plaintiffs-appellees.

ANNA BONDURANT ELEY, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellant. Also repre-
sented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR., FRANKLIN E. WHITE, JR.
______________________
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2 BOAZ HOUSING AUTHORITY v. UNITED STATES

Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
O’MALLEY, Circuit Judge.
The government appeals from a decision of the United
States Court of Federal Claims (“Claims Court”) denying
its motion to dismiss for lack of subject matter jurisdiction
and failure to state a claim. See Boaz Hous. Auth. v. United
States, 141 Fed. Cl. 74 (2018). For the reasons explained
below, we affirm.
I. BACKGROUND
A. The Statutory Framework
Section 9 of the United States Housing Act of 1937
(“Housing Act”) provides two funds for public housing: the
Capital Fund and the Operating Fund. 42 U.S.C. § 1437g;
see Quality Housing and Work Responsibility Act of 1998,
Pub. L. No. 105–276, 112 Stat. 2461, 2518, 2551–62. The
purpose of the Capital Fund is to make assistance available
for carrying out “capital and management activities,” e.g.,
the redesign, reconstruction, and reconfiguration of public
housing sites and buildings. See 42 U.S.C. § 1437g(d)(1).
The purpose of the Operating Fund is to make assistance
available for “the operation and management of public
housing,” e.g., activities to ensure a program of routine pre-
ventative maintenance, the costs of insurance, and energy
costs associated with public housing units. See id.
§ 1437g(e)(1).
Congress tasked the United States Department of
Housing and Urban Development (“HUD”) with allocating
amounts in the Capital Fund and Operating Fund to eligi-
ble public housing agencies. See id. § 1437g(c)(1). See gen-
erally id. § 1437a(b)(8). Public housing agencies (“PHAs”)
include “any State, county, municipality, or other govern-
ment entity or public body (or agency or instrumentality
thereof)” that “is authorized to engage in or assist in the
development or operation of public housing.” Id.
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BOAZ HOUSING AUTHORITY v. UNITED STATES 3

§ 1437a(b)(6). Each fiscal year, HUD allocates money from
the Capital Fund and Operating Fund to PHAs using a
multi-factored formula. See id. § 1437g(c)(1), (d)(2), (e)(2);
see also 24 C.F.R. §§ 905.400, 990.110. HUD regulations
refer to a PHA’s yearly amount of assistance from the Op-
erating Fund as its “operating subsidy.” See 24 C.F.R.
§ 990.115.
Section 9 of the Housing Act constrains the ways in
which PHAs may use their operating subsidy. First, except
for certain qualifying small PHAs that enjoy total fungibil-
ity between their Capital Fund and Operating Fund
amounts, PHAs may use no more than 20% of their operat-
ing subsidy for Capital Fund uses. 1 See 42 U.S.C.
§ 1437g(g)(1)(B), (g)(2). Second, with some exceptions,
PHAs may not use any of their operating subsidy “for the
purpose of constructing any public housing unit, if such
construction would result in a net increase from the num-
ber of public housing units owned, assisted, or operated by
the public housing agency on October 1, 1999.” Id.
§ 1437g(g)(3). And third, through appropriations acts,
Congress has forbidden paying to PHAs any amount appro-
priated under the heading “Public Housing Operating
Fund” for the costs of operation and management of public
housing of any prior year. See, e.g., Consolidated

1 Congress authorized this limited fungibility in the
Housing Opportunity Through Modernization Act of 2016,
Pub. L. No. 114–201, 130 Stat. 782, 802. Prior to this law,
non-small PHAs could not use any portion of their operat-
ing subsidy for Capital Fund uses. Public Housing Operat-
ing Fund: 2015 Summary Statement and Initiatives,
Section of FY2015 Congressional Justifications, U.S. Dep’t
of Hous. & Urb. Dev. J-14, https://www.hud.gov/sites/docu-
ments/FY15CJ_PH_OPFND.PDF (last visited Apr. 16,
2021).
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4 BOAZ HOUSING AUTHORITY v. UNITED STATES

Appropriations Act, 2010, Pub. L. No. 111–117, 123 Stat.
3034, 3080 (2009); see also 42 U.S.C. § 1437g note.
Finally, the Housing Act authorizes HUD to sanction a
PHA that receives assistance under Section 9 of the Hous-
ing Act if HUD finds that the PHA “has failed to comply
substantially with any provision of this chapter relating to
the public housing program.” See 42 U.S.C. § 1437d(j)(4).
Potential sanctions include terminating, withholding, re-
ducing, or limiting the PHA’s assistance payments under
Section 9 and ordering other corrective action against the
PHA. Id.
B. The PHAs’ Breach of Contract Claim
Each of the 553 PHAs in this case executed an Annual
Contributions Contract (“ACC”) with HUD. HUD regula-
tions define an ACC as “a contract prescribed by HUD for
loans and contributions, which may be in the form of oper-
ating subsidy, whereby HUD agrees to provide financial as-
sistance and the PHA agrees to comply with HUD
requirements for the development and operation of its pub-
lic housing projects.” See 24 C.F.R. § 990.115.
HUD’s definition comports with the terms of HUD’s
standard form “Consolidated Annual Contributions Con-
tract Between Housing Authority and the United States of
America.” See J.A. 124–38. The contract requires HUD to
“provide annual contributions to the [PHA] in accordance
with all applicable statutes, executive orders, regulations,
and this ACC.” J.A. 128. It also requires the PHA to “de-
velop and operate all projects covered by this ACC in com-
pliance with all the provisions of this ACC and all
applicable statutes, executive orders, and regulations is-
sued by HUD, as they shall be amended from time to time.”
J.A. 129.
The standard form ACC also incorporates by reference
HUD’s regulations contained in Title 24 of the Code of Fed-
eral Regulations. See J.A. 127, 129. Relevant to this
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BOAZ HOUSING AUTHORITY v. UNITED STATES 5

appeal is 24 C.F.R. § 990.210(c), which provides HUD with
“discretion to revise, on a pro rata basis, the amounts of
operating subsidy to be paid to PHAs” where “insufficient
funds are available.” 24 C.F.R. § 990.210(c).
In 2012, Congress made insufficient funds available
when it funded only approximately 80% of the total operat-
ing subsidies of all PHAs (the plaintiffs here and others).
See Consolidated and Further Continuing Appropriations
Act, 2012, Pub. L. No. 112–55, 125 Stat. 552, 680 (2011).
Congress also directed HUD to “take into account public
housing agencies’ excess operating fund reserves, as deter-
mined by the Secretary,” in determining their 2012 operat-
ing subsidy. Id. As instructed, HUD considered the excess
reserves of each PHA when it apportioned the available
funding and did not prorate the available funding as re-
quired by 24 C.F.R. § 990.210(c) and the ACCs. Some
PHAs therefore received more funding in 2012 than they
would have if HUD prorated the available funding. Other
PHAs, including all the PHAs in this case, received less
than they would have or received no funding at all.
The PHAs in this case brought suit in the Claims Court
under the Tucker Act, 28 U.S.C. § 1491(a)(1), alleging that
HUD breached their ACCs when it reduced their 2012 op-
erating subsidy on a non-pro rata basis. J.A. 105, 121
(¶¶ 15, 81). The PHAs sought compensatory damages for
“the difference between the amounts they should have re-
ceived under their ACCs and the amounts they actually re-
ceived.” J.A. 119–20 (¶ 71); see J.A. 121 (Prayer for Relief).
The PHAs moved for summary judgment as to liability,
and the government moved to dismiss pursuant to Rule
12(b)(1) and 12(b)(6) of the Rules of the Court of Federal
Claims (“RCFC”). The Claims Court stayed further brief-
ing on the PHAs’ motion for summary judgment pending
resolution of the government’s motion to dismiss. As to ju-
risdiction, the government argued that the allegedly
breached provisions of the ACCs did not mandate an award
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6 BOAZ HOUSING AUTHORITY v. UNITED STATES

of money damages in the event of breach because the true
nature of the PHAs’ claim is the violation of a regulation
that implements a non-money mandating statutory
scheme. According to the government, the statutory
scheme was not money-mandating because it attached
strings to the PHAs’ use of their operating subsidies. As to
the merits, the government similarly argued that the PHAs
were not entitled to an unrestricted money judgment under
any law or contract with HUD.
The Claims Court denied the government’s motion to
dismiss. The Claims Court first concluded that the PHAs’
claim was contract-based because contractual provisions
that “were required by and incorporated governing regula-
tions” are not “any less contractual obligations or provi-
sions.” Boaz, 141 Fed. Cl. at 80 (quoting San Juan City
Coll. v. United States, 391 F.3d 1357, 1360 (Fed. Cir.
2004)). The court found that “the essential purpose of the
ACCs is to contractually obligate HUD to pay monetary
subsidies to Plaintiffs in exchange for their operation of
public housing projects in accordance with regulatory and
statutory requirements.” Id. at 82. The Claims Court then
held that the “strings-attached” nature of the operating
subsidy did not preclude the court from exercising Tucker
Act jurisdiction over the PHAs’ claim. Id. The court dis-
tinguished both Lummi Tribe of the Lummi Reservation v.
United States, 870 F.3d 1313 (Fed. Cir. 2017), and National
Center for Manufacturing Sciences v. United States
(NCMS), 114 F.3d 196 (Fed. Cir. 1997), because (1) the
PHAs sought compensatory damages for their losses from
the government’s failure to meet a past-due obligation and
not equitable relief to enforce a regulatory obligation and
(2) the PHAs’ claim is based on a breach of contract and not
a statute. Boaz, 141 Fed. Cl. at 83–84.
After the Claims Court denied its motion to dismiss,
the government did not oppose the PHAs’ motion for sum-
mary judgment on liability in light of Public Housing Au-
thorities Directors Ass’n v. United States (PHADA), 130
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BOAZ HOUSING AUTHORITY v. UNITED STATES 7

Fed. Cl. 522 (2017), but reserved its right to appeal the
Claims Court’s judgment. 2 The Claims Court granted the
PHAs summary judgment on liability for the reasons set
forth in PHADA, and the parties subsequently stipulated
to damages with respect to all but one of the PHAs in this
case. 3
On June 25, 2019, the Claims Court entered judgment
pursuant to Rule 54(b) of the RCFC. The government
timely appealed to this court. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3).
II. DISCUSSION
A. Standard of Review
We review the denial of a motion to dismiss for lack of
jurisdiction de novo. Inter-Tribal Council of Ariz., Inc. v.
United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). We
also review the denial of a motion to dismiss for failure to
state a claim de novo. See A & D Auto Sales, Inc. v. United
States, 748 F.3d 1142, 1150 (Fed. Cir. 2014).
B. Rule 12(b)(1)
Under the Tucker Act, the Claims Court has jurisdic-
tion “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 depart-
ment, or upon any express or implied contract with the
United States.” 28 U.S.C. § 1491(a)(1). The Tucker Act is
only a jurisdictional statute and “does not create any sub-
stantive right enforceable against the United States for

2 In PHADA, the Claims Court held that the govern-
ment breached its obligations under its ACCs with other
PHAs by reducing their operating subsidy on a non-pro
rata basis. 130 Fed. Cl. at 525, 536.
3 The parties have since resolved their dispute about
the last PHA.
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8 BOAZ HOUSING AUTHORITY v. UNITED STATES

money damages.” N.Y. & Presbyterian Hosp. v. United
States, 881 F.3d 877, 881 (Fed. Cir. 2018). A plaintiff must
therefore identify a separate source of substantive law that
creates the right to money damages. Id. In the parlance of
Tucker Act cases, that source must be “money-mandating.”
Lummi, 870 F.3d at 1317.
In their discussions of the money-mandating require-
ment, the Supreme Court and this court have distin-
guished between claims based on the Constitution, a
statute, or a regulation and claims based on a contract. See
Holmes v. United States, 657 F.3d 1303, 1313–14 (Fed. Cir.
2011) (summarizing cases). For claims founded upon the
Constitution, a statute, or a regulation, “a court must in-
quire whether the source of substantive law can fairly be
interpreted as mandating compensation by the Federal
Government for the damages sustained.” United States v.
Mitchell, 463 U.S. 206, 218 (1983). But for claims founded
upon a contract, “there is a presumption in the civil context
that a damages remedy will be available upon the breach
of an agreement.” Holmes, 657 F.3d at 1314 (quoting Sand-
ers v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001)).
This presumption normally satisfies the money-mandating
requirement for Tucker Act jurisdiction, “with no further
inquiry being necessary.” Id.
This distinction between contracts and other sources of
substantive law is logical. See id. “[D]amages are always
the default remedy for breach of contract.” United States
v. Winstar Corp., 518 U.S. 839, 885 & n.30 (1996) (plurality
opinion) (citing, e.g., Restatement (Second) of Contracts
§ 346 cmt. a (Am. L. Inst. 1981)). And “[n]ormally contracts
do not contain provisions specifying the basis for the award
of damages in case of breach, with the exception of provi-
sions governing damages in particular situations, such as
liquidated damages for delay or other specified breaches.”
San Juan, 391 F.3d at 1361; accord Holmes, 657 F.3d at
1314.
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BOAZ HOUSING AUTHORITY v. UNITED STATES 9

It is true that the existence of a contract does not al-
ways mean that Tucker Act jurisdiction exists. Holmes,
657 F.3d at 1314; see Kania v. United States, 227 Ct. Cl.
458, 464 (1981). We have recognized that three types of
contracts are exempt from the presumption that damages
are available upon the breach of a contract: (1) contracts
that expressly disavow money damages, Holmes, 657 F.3d
at 1314; (2) agreements that are entirely concerned with
the conduct of parties in a criminal case and that lack “an
unmistakable promise to subject the United States to mon-
etary liability,” Sanders, 252 F.3d at 1334, 1336; and
(3) cost-sharing agreements with the government, Rick’s
Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008); see Holmes, 657 F.3d at 1315 (discussing
Rick’s “unique cost-share agreement”); Rocky Mountain
Helium, LLC v. United States, 841 F.3d 1320, 1327 (Fed.
Cir. 2016) (describing Rick’s agreement as “a special gov-
ernment cost-sharing agreement”).
Where “relief for breach of contract could be entirely
non-monetary,” moreover, the court may require a demon-
stration that “the agreement[ ] could fairly be interpreted
as contemplating monetary damages in the event of
breach.” Higbie v. United States, 778 F.3d 990, 993 (Fed.
Cir. 2015). We will not lightly infer the premise of a Tucker
Act claim, but “a fair inference will do.” United States v.
White Mountain Apache Tribe, 537 U.S. 465, 473 (2003).
This fair-inference inquiry, though similar to the money-
mandating analysis for claims based on the Constitution,
statutes, or regulations, is informed by the fact that con-
tracts normally do not contain provisions specifying the ba-
sis for the award of damages in case of breach. See Holmes,
657 F.3d at 1314. The right to money damages is, in most
instances, fairly implied.
Holmes is instructive on this point. The contracts at
issue in that case were two settlement agreements of Title
VII employment disputes. Id. at 1315–16. The Navy had
agreed both to document in Mr. Holmes’s Official Personnel
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10 BOAZ HOUSING AUTHORITY v. UNITED STATES

File that he had resigned for personal reasons and to ex-
punge a fourteen-day suspension from his record. Id. Nei-
ther term involved a payment of money. See id. We
nevertheless held that the Claims Court had jurisdiction
over claims alleging their breach because the purpose of
those terms “clearly was to prevent Mr. Holmes from being
denied future employment based on his record” and, there-
fore, the agreements “inherently relate to monetary com-
pensation” through their relationship to Mr. Holmes’s
future employment. Id. at 1316. We also found probative
the absence of language in the agreements “indicating that
the parties did not intend for money damages to be availa-
ble in the event of breach.” Id.
Higbie is a helpful contrast to Holmes. The contract at
issue there was a boilerplate alternative dispute resolution
agreement that “served to guide the mediation process.”
Higbie, 778 F.3d at 991, 995 n.1. The plaintiff there did not
argue that the agreement created “any specific duty owed
by the Government that applies particularly to him.” Id.
at 995 n.1. The agreement contained a non-disclosure pro-
vision and a remedy for its breach, the exclusion of state-
ments made during mediation from unrelated proceedings.
Id. at 994. We concluded that the agreement could not
fairly be interpreted to contemplate money damages. Id.
Higbie is consistent with Holmes because the non-mone-
tary remedy provided in Higbie’s alternative dispute reso-
lution agreement supplanted the general rule that most
contracts contain implied rather than express provisions
specifying the basis for an award of damages in case of
breach. See Holmes, 657 F.3d at 1314.
Here, the PHAs’ claim is based on a money-mandating
source of substantive law: their ACCs with HUD. Each
PHA’s ACC contractually obligates HUD to pay the PHA
its operating subsidy, as determined by HUD’s formula,
subject to reduction only on a pro rata basis where insuffi-
cient funds are available. See J.A. 119–21 (¶¶ 71, 77–78,
82). HUD’s failure to reduce the PHAs’ 2012 operating
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BOAZ HOUSING AUTHORITY v. UNITED STATES 11

subsidy on a pro rata basis breached this contractual obli-
gation and caused monetary harm to those who received
less than they were owed under their ACCs. See J.A. 121
(¶ 83). Because the PHAs’ claim is based on a contract,
they come “armed with the presumption that money dam-
ages are available, so that normally no further inquiry is
required.” See Holmes, 657 F.3d 1303. Further, the PHAs’
ACCs do not fall into any of the three exceptions to this
presumption, and neither party argues otherwise. 4
The government’s principal argument on appeal is that
the ACCs cannot fairly be interpreted to contemplate an
award of money damages because, “within the statutory
scheme and the parties’ contract itself, the PHAs do not
have any reasonable expectation of ever being able to spend
their subsidies free and clear of statutory restrictions.” Ap-
pellant’s Br. 17–18. The government relies on both Lummi
and NCMS.
Like the Claims Court, we disagree. First, the govern-
ment’s argument is based on its incorrect view that the
PHAs’ claim “seeks larger, strings-attached Federal subsi-
dies,” which is “inherently not a cognizable claim for money
damages” but rather one for equitable relief. See Appel-
lant’s Br. 23–24; accord Appellant’s Br. 28. That premise
is wrong. The ACCs contractually obligate HUD to pay the
PHAs their operating subsidy (or their prorated operating
subsidy if insufficient funds are available). See J.A. 127
(incorporating by reference HUD regulations in title 24 of
the Code of Federal Regulations); J.A. 128 (“HUD shall pro-
vide annual contributions to the [PHA] in accordance with

4 The government argues that the Claims Court
erred by treating these three exceptions as exhaustive of
all situations in which money damages are unavailable.
While there may be other kinds of contracts that do not give
rise to a presumption that money damages are available,
the government fails to identify them.
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12 BOAZ HOUSING AUTHORITY v. UNITED STATES

all applicable statutes, executive orders, regulations, and
this ACC.”); see also 24 C.F.R. § 990.115 (defining ACC as
“a contract . . . whereby HUD agrees to provide financial
assistance.”). In other words, the ACCs expressly promise
monetary compensation in return for the PHAs’ continued
operations. The government identifies “no language in the
agreements indicating that the parties did not intend for
money damages to be available in the event of breach.” See
Holmes, 657 F.3d at 1316. Unlike in Higbie, there is noth-
ing in the contract that makes clear that some other form
of remedy was expressly contemplated.
Second, the government’s reliance on Lummi is mis-
placed. In Lummi, we held that the Native American
Housing Assistance and Self-Determination Act of 1996
(“NAHASDA”) was not a money-mandating statute be-
cause it did “not authorize a free and clear transfer of
money.” 870 F.3d at 1319. NAHASDA established an an-
nual block grant program through which Indian tribes, like
the Lummi Tribe, received direct funding from HUD to pro-
vide affordable housing to their members. Id. at 1315.
NAHASDA bears some similarity to Section 9 of the Hous-
ing Act: (1) it requires HUD to make grants according to a
multi-factored formula, (2) it specifies the activities on
which grantee tribes may dispense their funds, and (3) it
allows HUD to terminate, reduce, or limit a tribe’s pay-
ments where the tribe fails to comply substantially with
NAHASDA. See id.
The similarities between the two statutory schemes are
irrelevant, however, to whether the Claims Court has ju-
risdiction over the PHAs’ breach of contract claim. Indeed,
after we dismissed the Lummi Tribe’s action for lack of sub-
ject matter jurisdiction, id. at 1320, we subsequently clari-
fied that the Lummi Tribe’s breach of contract claim was
outside the scope of our prior mandate. See Lummi Tribe
of the Lummi Reservation v. United States (Lummi II), 788
F. App’x 717, 721 (Fed. Cir. 2019). We explained that the
scope of our review in Lummi “was limited to Lummi’s
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BOAZ HOUSING AUTHORITY v. UNITED STATES 13

claim under NAHASDA” and that resolution of its breach
of contract claim “was not necessary to our conclusion[ ]
that NAHASDA is not a money-mandating statute.” 5 Id.
at 721–22. Given that our holding in Lummi did not extend
to the Lummi Tribe’s breach of contract claim, we see no
reason to extend it to the PHAs’ claim here.
The government argues that there is no reason why the
strings-attached nature of funds is a “paramount consider-
ation” for statutes and yet “entirely irrelevant” for con-
tracts “whose entire purpose is to apply that same non-
money mandating statute.” Appellant’s Br. 24. But as we
have already said, with regard to the money-mandating re-
quirement, the Supreme Court and this court have long
distinguished between claims based on statutes and claims
based on contracts. See Holmes, 657 F.3d at 1313–14 (dis-
cussing, e.g., Eastport Steamship Corp. v. United States,
372 F.2d 1002 (Ct. Cl. 1967)); see also Eastport, 372 F.2d at
1008 & n.7 (characterizing contract claims as falling under
“another head of jurisdiction” from statutory claims). Fur-
ther, the government glosses over the fact that contracts
impose obligations on parties, for which damages are the
default remedy upon breach. Cf. Winstar Corp., 518 U.S.
at 885 (plurality opinion) (explaining that “damages are al-
ways the default remedy for breach of contract”). That con-
tractual provisions either are required by or incorporate
governing regulations does not make those obligations any
less contractual in nature. See San Juan, 391 F.3d at 1360.
Moreover, in Lummi, we explained that any claim for
relief under NAHASDA “would necessarily be styled” as a
claim for “larger strings-attached NAHASDA grants—

5 In Lummi, we also reviewed the Tribe’s illegal ex-
action claim, which we found to be invalid on its face. 870
F.3d at 1319. Resolution of the Tribe’s breach of contract
claim was not necessary to this conclusion either. See
Lummi II, 788 F. App’x at 722.
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14 BOAZ HOUSING AUTHORITY v. UNITED STATES

including subsequent supervision and adjustment—and
hence, for equitable relief.” 870 F.3d at 1319. By contrast,
the PHAs’ complaint makes clear that they seek compen-
satory damages for HUD’s breach of contract and not equi-
table relief in the form of an order that the 2012 funding be
redistributed or increased. See J.A. 119–21 (¶¶ 71, 81–82,
Prayer for Relief).
The government insists that the true nature of the
PHAs’ claim is one that seeks larger, strings-attached op-
erating subsidies. Indeed, the government urges that the
“true object” of the PHAs’ claim is strings-attached operat-
ing subsidies. Appellant’s Reply Br. 2, 14. We disagree. In
Bowen v. Massachusetts, 487 U.S. 879 (1988), the Supreme
Court distinguished between compensatory damages,
which “are given to the plaintiff to substitute for a suffered
loss,” and specific remedies, which “are not substitute rem-
edies at all, but attempt to give the plaintiff the very thing
to which he was entitled.” Id. at 895. Despite the govern-
ment’s characterizations to the contrary, the PHAs seek a
money damages equivalent to substitute for the loss they
suffered when HUD breached the ACCs by reducing their
operating subsidy on a non-pro rata basis. And they do not
seek more than they were entitled to under the contract.
Thus, the government is wrong. The PHAs do not seek
“larger” subsidies; they simply seek to receive the amount
HUD promised. We conclude that the true nature of the
PHAs’ claim is one for compensatory money damages and
not equitable relief. 6

6 In Columbus Regional Hospital v. United States,
990 F.3d 1330 (Fed. Cir. 2021), we rejected a similar at-
tempt to characterize Columbus’s breach of contract claims
as equitable in nature and, therefore, outside the jurisdic-
tion of the Claims Court. Id. at 1349–50. We explained
that, unlike the plaintiffs in Bowen, Columbus only sought
a monetary award (and not equitable relief), predicated on
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BOAZ HOUSING AUTHORITY v. UNITED STATES 15

At bottom, the distinction between this case and
Lummi is straightforward. The government may imple-
ment statutorily mandated subsidy programs without em-
ploying contracts as a vehicle for doing so. If it takes that
route, the government would rarely subject itself to suit
under the Tucker Act by a potential recipient of such sub-
sidies. If it chooses to employ contracts to set the terms of
and receive commitments from recipients with respect to
such subsidies, depending upon the terms of the contract
and the circumstances of non-payment, the government
may find itself subject to suit in the Claims Court for dam-
ages relating to an alleged breach.
Third, the government’s analogy to NCMS fails be-
cause this case is distinguishable. In NCMS, we reversed
a district court order transferring the case to the Claims
Court. 114 F.3d at 202. NCMS filed suit after Congress
appropriated $40 million for NCMS in the Department of
Defense Appropriations Act for Fiscal Year 1994 (“1994 Ap-
propriations Act”), but the Air Force obligated only approx-
imately $24 million of the appropriated funds in its
Cooperative Agreement with NCMS. Id. at 197–98. The
district court viewed the case as a contract claim against
the government, even though three of the four pleaded
counts were “plainly based” on the 1994 Appropriations Act
and the remaining claim requested “specific performance
of the Cooperative Agreement between NCMS and the Air
Force, a remedy that the Court of Federal Claims is not
empowered to grant.” Id.
We looked to the true nature of the claims asserted and
determined that the transfer was improper. See id. at 202.
As to NCMS’s statutory claims, we explained that “NCMS

a nonfrivolous allegation of breach of contract. Id. at 1350.
Like Columbus, the PHAs here only seek a monetary
award predicated on a nonfrivolous allegation of breach of
contract.
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16 BOAZ HOUSING AUTHORITY v. UNITED STATES

is seeking funds to which it claims it is entitled under a
statute,” and not “money in compensation for losses that it
has suffered or will suffer as a result of the withholding of
those funds.” See id. at 200 (analogizing to Bowen, 487 U.S.
879). Further, the 1994 Appropriations Act restricted
NCMS’s uses of appropriated funds, thus contemplating “a
cooperative, ongoing relationship between NCMS and the
Air Force.” Id. at 201. In light of these restrictions, we
explained that, “even if NCMS is entitled to obtain access
to the remaining [unobligated funds] on some terms,” it
seemed reasonably clear that a simple money judgment
would not be an appropriate remedy. Id. Like our holding
in Lummi about the Lummi Tribe’s statutory claim, our
discussion of NCMS’s statutory claims is irrelevant to the
PHAs’ breach of contract claim.
As to NCMS’s contract claim, we concluded that that
the Claims Court could not grant the kind of equitable re-
lief that NCMS sought. Id. at 202. Specifically, because
the parties’ Cooperative Agreement only obligated the Air
Force to transfer approximately $24 million to NCMS,
NCMS could only obtain the remaining appropriated funds
“by supplementation of the Cooperative Agreement or by
formation of a new agreement.” Id. We explained that
NCMS effectively sought relief to require the Air Force “to
expand the existing contractual relationship or to create a
new one to cover the remaining appropriated but unob-
ligated funds.” Id. By contrast, the PHAs’ claim here seeks
neither to expand their existing contractual relationship
with HUD nor to create a new one. The PHAs rather seek
compensation for HUD’s breach of existing contractual ob-
ligations.
The government argues that NCMS is analogous be-
cause, “in addition to making requests for equitable relief,
‘[s]ome portions of NCMS’s complaint suggest that NCMS
seeks a naked money judgment.’” Appellant’s Br. 32 (quot-
ing NCMS, 114 F.3d at 201 (internal quotations omitted)).
Not so. While we recognized that portions of NCMS’s
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BOAZ HOUSING AUTHORITY v. UNITED STATES 17

complaint suggested that NCMS sought a naked money
judgment, we determined that NCMS could only obtain
what it wanted via injunctive relief. NCMS, 114 F.3d at
201 (“Other portions of the complaint, however, make clear
that NCMS anticipates the need for injunctive relief . . . .”).
Here, nothing in the PHAs’ claim requires injunctive or eq-
uitable relief, remedies that the Claims Court generally
lacks power to grant.
The government also argues that NCMS is analogous
because the Cooperative Agreement in NCMS and the
ACCs here “involve heavy use ‘restrictions’ and an ‘ongoing
relationship’ with the Government.” Appellant’s Br. 31.
But our conclusion—that “[i]n light of the restrictions gov-
erning the manner in which money may be allocated to
NCMS and spent, it thus seems reasonably clear that a
simple money judgment issued by the Court of Federal
Claims would not be an appropriate remedy, even if NCMS
is entitled to obtain access to the remaining [unobligated
funds] on some terms”—was limited to NCMS’s statutory
claims. See NCMS, 114 F.3d at 201 (emphasis added). As
we explained, NCMS could only obtain the unobligated
funds contractually by supplementing its existing Cooper-
ative Agreement or creating a new one. See id. at 202. Alt-
hough we observed that the Cooperative Agreement
reflected the 1994 Appropriations Act’s ongoing relation-
ship between NCMS and the government, our analysis of
the use restrictions and ongoing relationship did not ex-
tend to NCMS’s contract claim because NCMS could not
obtain the unobligated funds on any terms under its exist-
ing Cooperative Agreement. Again, the PHAs do not seek
to expand or alter their current contractual rights under
their ACCs.
We turn now to the government’s two remaining argu-
ments on jurisdiction. First, the government argues that
only equitable relief would make the PHAs whole and not
overcompensate them. Specifically, the government as-
serts that this court “would have to specify which use
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18 BOAZ HOUSING AUTHORITY v. UNITED STATES

restrictions and Government rights would apply to any
breach award in this case” so as “to give effect to the par-
ties’ agreement, and to give HUD the benefit of its bar-
gain.” Appellant’s Br. 31. We do not agree that a money
damages award would overcompensate the PHAs. The
general rule is that damages for breach of contract shall
place the wronged party in as good a position as it would
have been had the breaching party fully performed its ob-
ligation. Mass. Bay Transp. Auth. v. United States, 129
F.3d 1226, 1232 (Fed. Cir. 1997). Here, had HUD per-
formed its contractual obligation, the PHAs would have re-
ceived their prorated operating subsidy and been subject to
the use restrictions incorporated into the contract. They
instead received less than their pro rata share, so compen-
satory damages of the difference places them in as good a
position as they would have been had HUD fully performed
its obligation under the ACCs. See id. That the PHAs
would have been contractually bound to use their prorated
operating subsidy in accordance with all applicable stat-
utes and HUD regulations had HUD not breached is irrel-
evant to whether their money damages award compensates
them for HUD’s breach. 7
Second, the government argues that merely requesting
money damages under a contract is not enough to establish
Tucker Act jurisdiction. We agree. See, e.g., NCMS, 114
F.3d at 199; Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir.
1994). But our holding is not based solely on the relief re-
quested in the PHAs’ complaint. In addition to requesting

7 The government does not argue that the PHAs’
compensatory damages award must be reduced on other
grounds, e.g., for additional costs that the PHAs would
have incurred in performing their contractual obligations.
Cf. White v. Delta Constr. Int’l, Inc., 285 F.3d 1040, 1043
(Fed. Cir. 2002). Our holding here does not displace estab-
lished principles about compensatory damages.
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BOAZ HOUSING AUTHORITY v. UNITED STATES 19

compensatory damages, the PHAs pleaded a non-frivolous
claim based on a money-mandating source of law, their ex-
press contract with HUD. See Trauma Serv. Grp. v. United
States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (holding an al-
legation that an express or implied-in-fact contract under-
lay the claim “suffices to confer subject matter jurisdiction
in the Court of Federal Claims”). As explained above, these
ACCs do not fall into any of the three categories of con-
tracts that we have recognized as exempted from the pre-
sumption that damages are available upon breach of
contract. Clearly, the ACCs can fairly be interpreted as
contemplating monetary damages in the event of breach.
Thus, we hold that the Claims Court has jurisdiction over
the PHAs’ breach of contract claim.
C. Rule 12(b)(6)
To survive a motion to dismiss, a complaint must con-
tain sufficient facts, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible on its face
when the plaintiff’s factual pleadings “allow[ ] the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Twombly, 550
U.S. at 556).
Because the Claims Court viewed the government’s
Rule 12(b)(6) argument as essentially the same as its juris-
dictional argument, it disposed of them together. Boaz, 141
Fed. Cl. at 79, 85.
The government argues that the PHAs failed to state a
claim because they are not legally entitled to a naked
money judgment “for all of the reasons as discussed in de-
tail” in its jurisdictional arguments. Appellant’s Br. 40–41.
Specifically, the government argues that the ACCs only
contemplate purely non-Tucker Act remedies for obtaining
a withheld operating subsidy because an unrestricted dam-
ages award would overcompensate the PHAs.
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20 BOAZ HOUSING AUTHORITY v. UNITED STATES

A court’s jurisdiction and a claim’s merits are generally
distinct inquiries. See Jan’s Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1306–07 (Fed. Cir. 2008)
(explaining that the Supreme Court in White Mountain
Apache Tribe “made clear that the merits of the claim were
not pertinent to the jurisdictional inquiry”). On one hand,
in Tucker Act cases, the jurisdictional inquiry is whether
the plaintiff’s well-pleaded complaint is grounded on a
money-mandating source. See Fisher v. United States, 402
F.3d 1167, 1176 (Fed. Cir. 2005) (en banc). In other words,
“all that is required is a determination that the claim is
founded upon a money-mandating source and the plaintiff
has made a nonfrivolous allegation that it is within the
class of plaintiffs entitled to recover under the money-man-
dating source.” Jan’s, 525 F.3d at 1309; see Fisher, 402
F.3d at 1173 (“[T]he determination that the source is
money-mandating shall be determinative . . . as to the
question of whether, on the merits, plaintiff has a
money-mandating source on which to base his cause of ac-
tion.”).
On the other hand, the merits inquiry considers
whether the plaintiff has established all elements of its
cause of action. Fisher, 402 F.3d at 1175. Therefore, “the
consequence of a ruling by the court on the merits, that
plaintiff’s case does not fit within the scope of the source, is
simply this: plaintiff loses on the merits for failing to state
a claim on which relief can be granted.” Id. at 1175–76; cf.
St. Bernard Par. Gov’t v. United States, 916 F.3d 987, 991,
998 n.5 (Fed. Cir. 2019). 8

8 In St. Bernard Parish, we noted that the Claims
Court incorrectly characterized its dismissal as jurisdic-
tional in nature, rather than as a dismissal for failure to
state a claim on which relief can be granted. 916 F.3d at
998 n.5. The Claims Court dismissed on two bases: (1) the
Cooperative Agreement did not contemplate money
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BOAZ HOUSING AUTHORITY v. UNITED STATES 21

Here, the government’s argument that the ACCs only
contemplate purely non-Tucker Act remedies is not perti-
nent to the merits issue of whether the PHAs have estab-
lished all elements of their breach of contract claim.
Rather, it restates the government’s jurisdictional argu-
ment as to why the ACCs are not a money-mandating
source. See Higbie, 778 F.3d at 993 (holding that, “if relief
for breach of contract could be entirely non-monetary,” 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”). The govern-
ment has not otherwise attacked the merits of the PHAs’
claim—the existence of a contract, the terms thereof, or the
failure of HUD to abide by the same. We therefore reject
the government’s argument as a basis to dismiss for failure
to state a claim.
III. CONCLUSION
We have considered the government’s remaining argu-
ments and find them unpersuasive. For the reasons dis-
cussed above, we affirm the Claims Court’s denial of the
government’s motion to dismiss for lack of jurisdiction and
failure to state a claim.
AFFIRMED

damages and (2) the government received no considera-
tion. St. Bernard Par. Gov’t v. United States, 134 Fed. Cl.
730, 735 (2017). The first basis is jurisdictional, while the
second basis is on the merits.