August 22, 2019

Tenth Circuit: Time Limit On HUD Funds Investments and Return of Interest to HUD Affirmed

The Tenth Circuit issued its opinion in Muscogee (Creek) Nation Division of Housing v. U.S. Dep’t of Housing and Urban Development on Tuesday, October 30, 2012.

The Muscogee (Creek) Nation (the Nation) received block grant funds for affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243. Under regulation 24 C.F.R. § 1000.58, funds invested by the Nation could not be invested for longer than two years. In 2007 and 2009, HUD issued notices regarding requirements for investing the funds and stating that for funds invested longer than two years, any interest accrued after two years must be returned to HUD. Additionally, any invested funds that were not expended on affordable housing activities by the two-year period would have to be returned to the tribe’s Line of Credit Control System account.

After a HUD review of the Nation’s use of program funds, HUD required the Nation to return $1.3 million in interest on funds invested longer than two years. The Nation returned the interest under protest, then filed suit seeking return of the funds and injunctive and declaratory relief regarding the validity of 24 C.F.R. § 1000.58(g) and the interest repayment requirement of the 2007 and 2009 notices. The district court dismissed the case based on HUD’s sovereign immunity and, in the alternative, for failure to state a claim.

The Tenth Circuit found that the Administrative Procedures Act did not waive HUD’s sovereign immunity regarding the two-year time limit on investments because “HUD’s authority to approve investment activities is committed to agency discretion as a matter of law.” Thus, the APA’s waiver of sovereign immunity did not apply and dismissal was proper for lack of jurisdiction.

In analyzing the Nation’s claims regarding the 2007 and 2009 notices requiring the return of interest, the court found a 1992 Comptroller General’s decision persuasive. The court held that the notices were interpretive, not substantive, and were consistent with federal law. It affirmed the district court’s dismissal of those claims on failure to state a claim grounds.

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