United States District Court, D. Colorado
BLACKFEET HOUSING, THE ZUNI TRIBE, ISLETA PUEBLO HOUSING AUTHORITY, PUEBLO OF ACOMA HOUSING AUTHORITY, ASSOCIATION OF VILLAGE COUNCIL PRESIDENTS REGIONAL HOUSING AUTHORITY, NORTHWEST INUPIAT HOUSING AUTHORITY, BRISTOL BAY HOUSING AUTHORITY, ALEUTIAN HOUSING AUTHORITY, CHIPPEWA CREE HOUSING AUTHORITY, and BIG PINE PAIUTE TRIBE, Plaintiffs,
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), SHAUN DONOVAN, Secretary of HUD, DEBORAH A. HERNANDEZ, Assistant Secretary for Public and Indian Housing, and GLENDA GREEN, Director, HUD's Office of Grants Management, National Office of Native American Programs, Department of Housing and Urban Development, Office of Public and Indian Housing, Defendants.
FINDINGS, CONCLUSIONS AND ORDER FOR FINAL JUDGMENT
RICHARD P. MATSCH, Senior District Judge.
Pursuant to this Court's Memorandum Opinions and Orders dated August 31, 2012 and March 7, 2014, and the following findings and conclusions, the Plaintiffs are entitled to declaratory and injunctive relief as described below.
This civil action arises under Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), and the Native American Housing Assistance and Self-Determination Act ("NAHASDA"), 25 U.S.C. § 4101 et seq. The issues presented are governed by the version of NAHASDA that existed before it was amended by the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008, Pub. L. No. 110-411, 122 Stat. 4319 (2008).
Jurisdiction is provided by the APA and by 28 U.S.C. §§ 1331, 1346 and 1362. The Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201 and jurisdiction to grant injunctive relief pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 2202.
The Administrative Record was filed on October 11, 2007. This action has proceeded on a coordinated basis with the other similar actions, with rounds of briefing on common legal issues.
In Opinions and Orders dated August 31, 2012, and March 7, 2014, this Court held that HUD's recapture of Indian Housing Block Grant ("IHBG") grant funds without first providing the administrative hearing required by NAHASDA was arbitrary, illegal and in contravention of the pre-amendment versions of 25 U.S.C. §§ 4161 and 4165; that HUD must restore to the Plaintiffs all funds that were illegally recaptured for fiscal years through and including FY 2008, and that HUD must refrain from threatening recapture or acting upon any threatened recapture with respect to grant funds awarded for any fiscal year through fiscal year 2008. In an opinion and order dated August 31, 2012, the Court also addressed issues unique to Plaintiff Big Pine Paiute Tribe.
The Court's Order dated March 7, 2014, required the Plaintiffs to submit a proposed form of judgment specifying the amount HUD must pay to each Plaintiff and the sources of such payment. The order also stated: "For any plaintiff who claims entitlement to payment for underfunding because HUD excluded units from that plaintiff's FCAS in a particular fiscal year, the proposed form of judgment should include a separate itemization for those amounts and may be submitted by May 15, 2014. An Appendix may be provided to explain the calculation of the amount owed and the record support for the claim."
On March 26, 2014, HUD moved for an order establishing a briefing schedule, arguing that the Plaintiffs had not adequately identified the challenged agency actions and that additional briefing was necessary before entry of final judgment. The Plaintiffs opposed HUD's motion and filed their proposed judgment on June 3, 2014. HUD's reply in support of its motion for scheduling order included objections to the Plaintiffs' proposed judgment. Among other issues, HUD disputed some of the Plaintiffs' statements of the amounts HUD had actually recaptured from them.
At a hearing on September 22, 2014, the Court directed HUD to provide the Plaintiffs with the financial documents that confirm the recapture amounts. HUD complied with that order, and Plaintiffs have verified the accuracy of HUD's evidence of the amounts actually recaptured. There is no ongoing dispute about the amounts of the challenged recaptures. Accordingly, on November 26, 2014, the ten Plaintiffs submitted an amended proposed judgment, seeking the following amounts for restoration of grant funding that HUD recaptured illegally:
Blackfeet Housing - $575, 510.00;
The Zuni Tribe - $1, 498, 090.00;
Isleta Pueblo Housing Authority - $121, 285.00;
Pueblo of Acoma Housing Authority - $56, 106.00;
Association of Village Council Presidents Regional Housing Authority ...