Fort Belknap Housing Department; Fort Belknap Indian Community Council;Fort Belknap Indian Community, Petitioners,
Office of Public and Indian Housing; U.S. Department of Housing and Urban Development; United States of America, Respondents.
Argued and Submitted March 7, 2013 —Portland, Oregon
On Petition for Review of an Order of the Department of Housing and Urban Development
James L. Vogel (argued), Hardin, Montana, for Petitioners.
Stuart F. Delery (argued), Acting Assistant Attorney General, Michael S. Raab, and Jonathan H. Levy, Attorneys, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.
Before: A. Wallace Tashima, Richard R. Clifton, and Carlos T. Bea, Circuit Judges.
Housing / Tribal Affairs
The panel dismissed a petition for review of a decision of the Department of Housing and Urban Development to withhold overpayments made to the Fort Belknap Housing Department under the federal rent-subsidy program for Indian Tribes and Tribal Designated Housing Entities.
The panel held that because the Department of Housing and Urban Development had taken no "action" pursuant to 25 U.S.C. § 4161(a), it lacked jurisdiction to entertain the appeal. The panel held it lacked jurisdiction because HUD neither alleged nor found that Fort Belknap failed to comply substantially with the provisions of the Native American Housing Assistance and Self Determination Act of 1996; and because HUD did not impose the remedies listed in 25 U.S.C. § 4161(a)(1). The panel dismissed Fort Belknap's petition without reaching the merits.
BEA, Circuit Judge:
This case involves a federal rent-subsidy program for Indian Tribes and Tribally Designated Housing Entities ("TDHE") that lease housing to Indians. The program provides per-unit payments while the Tribe or TDHE is leasing housing units to Indians, with a view that each unit eventually be conveyed to the Indian lessees. When the Tribe or TDHE conveys a unit, or a unit becomes eligible to be conveyed, unless such a conveyance is impractical, the Tribe should no longer receive rent subsidy money for the unit.
What happened here? The Fort Belknap Housing Department ("Fort Belknap"), a TDHE which received funds through the program, claimed and received rent subsidy payments for units that were no longer leased, but had been conveyed, and for units that were eligible to be conveyed. There were no circumstances which made the conveyance of such units impractical. After investigation, the Department of Housing and Urban Development ("HUD") demanded the return of the overpayments it had made.
Fort Belknap petitions this court for review of HUD's decision to withhold the amount of overpayments from future program payments. Fort Belknap argues this court has jurisdiction pursuant to 25 U.S.C. § 4161(d). On the merits, it claims HUD's actions in procuring repayment of the overpayments were "arbitrary and capricious" and based on a misinterpretation of various regulations. Section 4161(d), however, allows an appeal only when HUD takes action pursuant to § 4161(a). Because HUD has taken no action pursuant to § 4161(a), we lack jurisdiction to entertain this appeal and dismiss Fort Belknap's petition without reaching the merits.
A. Statutory and Regulatory ...