Weeks v. The Housing Authority of The City of Opp, Alabama et al
MEMORANDUM OPINION AND ORDER as follows: 1. The 36 Motion to Dismiss for Lack of Jurisdiction filed by HUD and Shaun Donovan is GRANTED, and the claims against them are dismissed without prejudice as further set out in the opinion and order. 2. Jan ie Week's 44 Motion for Leave to File Third Amendment Complaint is DENIED as further set out in the opinion and order. 3. HUD and Donovan's 34 Motion for Extension of Time to File Answer and 39 Motion to Stay are DENIED AS MOOT as further set out in the opinion and order. Signed by Honorable Judge Mark E. Fuller on 8/24/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
Case No. 2:11-cv-1011-MEF
HOUSING AUTHORITY OF OPP,
ALABAMA; UNITED STATES
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT; et al.,
M EMORANDUM O PINION & O RDER
I. I NTRODUCTION
The United States Department of Housing and Urban Development (HUD) and its
Secretary, Shaun Donovan, filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction. (ECF No. 36.) The plaintiff, Janie Weeks, declined to respond. She instead
sought leave to file a third amendment complaint (ECF No. 44), which essentially asks
the Court to allow her to plead around the jurisdictional defects brought to light by HUD
and Donovan. Because the Court finds the defendants’ motion to dismiss meritorious,
and concludes that allowing Weeks to amend her complaint would be futile, the
defendants’ motion will be granted and Weeks’s motion denied. The reasons why are
discussed more fully below.
II. M OTION TO D ISMISS S TANDARD
A defendant can file a motion to dismiss to contest a federal court’s subject-matter
jurisdiction over a claim. Fed. R. Civ. P. 12(b)(1). These motions come in two varieties:
one attacking subject-matter jurisdiction on the face of the complaint, the other using
extrinsic evidence to launch a factual attack on jurisdiction. Morrison v. Amway Corp.,
323 F.3d 920, 925 n.5 (11th Cir. 2003). A court deciding a facial attack to subject-matter
jurisdiction has to accept all well-pled factual allegations as true, viewing them in the
light most favorable to the plaintiff. McElmurray v. Consol. Gov’t of Augusta–Richmond
Cnty., 501 F.3d 1244, 1250 (11th Cir. 2007). In other words, the court merely looks to
“see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction.”
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). If the court lacks the
statutory or constitutional power to hear the claim, it must dismiss it for lack of subjectmatter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
III. B ACKGROUND
The underlying facts
The Opp Housing Authority (OHA) employed Janie Weeks as its executive
director from July 2006 until mid-2011. (Second Am. Compl. ¶ 16, ECF No. 26.) OHA
and the United States Department of House and Urban Development (HUD), the
executive agency that controls OHA’s spending, received complaints accusing Weeks of
racial discrimination and misconduct. (Id. at ¶¶ 21, 26–39.) OHA and HUD responded by
meeting with Weeks. (Id. at ¶ 50.) Attendees at the meeting included Weeks and her
husband, members of OHA’s board, and HUD representatives from both the Atlanta and
Birmingham offices. (Id.)
After the meeting got underway, Weeks made a severance proposal: she would
resign for $125,000 and six months of continued health insurance coverage. (Id. at ¶ 54.)
The OHA board members and HUD representatives agreed to the deal, adding only that
she must return all OHA property. (Id. at ¶ 55.) They told Weeks they would pay her on
June 29, 2011. (Id.) Relying on these assurances, Weeks turned in her keys and left
OHA’s premises. (Id. at ¶ 56.)
After HUD representatives met with the OHA tenants and employees who had
complained about Weeks, HUD went back on its agreement with her. (Id. at 57–58.) It
withdrew its promise to provide OHA with the necessary money to fund Weeks’s
severance package, and it even went so far as to deny OHA the authority to disburse the
$125,000 out of other funds it may have had. (Id. at ¶ 58.) With no authority to perform
its end of the bargain, OHA put Weeks on paid administrative leave instead. (Id. at ¶¶
60–62.) She contends that OHA and HUD breached the severance agreement, noting that
HUD never even authorized the federal funds necessary to pay for the leave period. (Id.)
Weeks filed suit to enforce the agreement. Her initial complaint named the Opp
Housing Authority and its board of commissioners as defendants. (Compl. at ¶¶ 6, 7–11,
ECF No. 1.) OHA responded by filing a motion to dismiss that contained alternative
motions for a more definite statement and for joinder of a necessary party. (ECF Nos. 13,
14.) In the latter motion, OHA asserted that HUD met the definition of a necessary party
under Rule 19(a) of the Federal Rules of Civil Procedure, because HUD would have to
approve paying a judgment out of federal funds if Weeks won her suit. (ECF No. 13 at
14–22.) Weeks responded to OHA’s motions by amending her complaint and adding
HUD and its Secretary, Shaun Donovan, as parties. (First Am. Compl., ECF No. 20.)
After Weeks amended her complaint again (ECF No. 26), HUD and Donovan
filed the motion to dismiss now before the Court. The Court put out a briefing schedule
(ECF No. 40) that gave Weeks the opportunity to respond. She chose not to, however,
opting instead to let the date for filing a response come and go. But she did file a motion
for leave to file a third amended complaint (ECF No. 44), which is also now before the
IV. D ISCUSSION
HUD and Donovan’s motion to dismiss
HUD and Donovan raise two grounds for dismissing the claims against them.
First, they contend that Weeks failed to plead a waiver of sovereign immunity—a
necessary prerequisite in suits against federal agencies and their officers. Second, they
assert that the Tucker Act, 28 U.S.C. § 1491, grants exclusive jurisdiction over Weeks’s
claims to the Court of Federal Claims. Weeks, as the Court has already mentioned, failed
to address either argument.
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank,
486 U.S. 549, 554 (1988)); FHA v. Burr, 309 U.S. 242, 244 (1940). And while Congress
can waive sovereign immunity statutorily, federal courts will not construe a statute as
containing an implicit waiver. Lane v. Pena, 518 U.S. 187, 192 (1996). Quite to the
contrary, Congress must use explicit language and waive the Federal Government’s
immunity from suit in no uncertain terms. Id. (citing United States v. Nordic Vill., Inc.,
503 U.S. 30, 33–34 (1992). And even when Congress includes an express waiver, it “will
be strictly construed, in terms of its scope, in favor of the sovereign.” Id. (citing United
States v. Williams, 514 U.S. 527, 531 (1995); Library of Cong. v. Shaw, 478 U.S. 310,
318 (1986); Lehman v. Nakshian, 453 U.S. 156, 161 (1981)). Perhaps most importantly,
“[s]overeign immunity is jurisdictional in nature.” Meyer, 50 U.S. at 475.
So the baseline rule is that federal courts do not have jurisdiction over suits against
federal agencies and officers unless a statute specifically says that they do. See 14
Charles Alan Wright, Arthur R. Miller & Edward Cooper, Federal Practice & Procedure
§ 3655, at 344 (3d ed. 1998) (stating a plaintiff “must demonstrate that the claim being
asserted is covered by a specific statutory authorization”). Combined with the rule that a
plaintiff’s complaint must have a “short and plain statement of the court’s jurisdiction,”
Fed. R. Civ. P. 8(a)(1), it is clear that a plaintiff must cite a statute containing an express
waiver of sovereign immunity before it can sue the Federal Government and proceed past
the motion to dismiss stage. Here, Weeks invokes the Court’s subject-matter jurisdiction
under 28 U.S.C. §§ 1331, 1343(4), 2201, 2202; 42 U.S.C. §§ 1981, 1983; and the Fifth
and Fourteenth Amendments. Accordingly, the Court must look to the text of each statute
to determine if any of them contain an explicit waiver of sovereign immunity.
After reviewing each statute’s text, the Court holds that none of them contain an
express waiver of sovereign immunity. The federal question statute does not waive
sovereign immunity. See 28 U.S.C. § 1331; Garcia v. United States, 666 F.2d 960, 966
(5th Cir. 1982). Nor do the statutes giving district courts original jurisdiction over claims
arising out of federal civil rights disputes. See 28 U.S.C. § 1343; 42 U.S.C. §§ 1981,
1983; United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (“It is well
established in this circuit that the United States has not waived its immunity to suit under
the provisions of the civil rights statutes.”); Beale v. Blount, 461 F.2d 1133, 1138 (5th
Cir. 1972); Salazar v. Heckler, 787 F.2d 527, 528–29 (10th Cir. 1986). The same goes
for Weeks’ Declaratory Judgment Act claims, see 28 U.S.C. 2201, 2202; Skelly Oil v.
Phillips Petrol., 339 U.S. 667, 671 (1950) (“Congress enlarged the range of remedies
available to the federal courts but did not extend their jurisdiction . . . .”), and her
constitutional claims, see Garcia, 666 F.2d at 966 (“The constitution does not waive the
Government’s sovereign immunity in suit for damages.”). Moreover, although “[f]ederal
courts have general subject matter jurisdiction over actions brought by federal agencies or
officers,” 28 U.S.C. § 1345, “there is no corollary rule whereby all suits brought against
federal agencies or officers are within the subject matter jurisdiction of the federal
courts.” Salim v. Napolitano, No. 11-cv-3402, 2012 WL 1745517, at *4 (N.D. Ala. May
14, 2012) (citing McQueary v. Laird, 449 F.2d 608, 610 (10th Cir. 1971)).
The content of Weeks’s second amended complaint against HUD and Donovan
further underscores this point. Boiled down to its essence, Weeks’s complaint alleges that
she entered into a contract with OHA and HUD (she would resign for $125,000 plus six
months of health benefits); that she performed her obligations under the contract
(returning all OHA property); and that HUD reneged on its promise to pay her under the
terms of the agreement (by refusing to authorize OHA to dispurse the funds). This is a
contract claim: the obligation the defendants allegedly owed to Weeks arose out of an
agreement between the parties, not a statute.
As HUD and Donovan point out, the contract claim asserted by Weeks seems to
fall squarely within the Tucker Act, 28 U.S.C. § 1491. Unlike the statutes cited in her
complaint, the Act contains an express waiver of sovereign immunity that could allow
Weeks’s contract claim to go forward. The problem, however, is that it grants the Court
of Federal Claims exclusive jurisdiction over monetary claims against the United States
exceeding $10,000. Weeks tries to plead around this by styling her claim against HUD as
one for “permanent injunctive relief.” But this will not do: “The Court of Federal Claims’
exclusive jurisdiction cannot be avoided by framing a complaint in the district court as
one seeking injunctive, declaratory, or mandatory relief, when in reality the thrust of the
suit is one seeking money from the United States.” Normandy Apts. v. HUD, 554 F.3d
1290, 1296 (10th Cir. 2009); see also Friedman v. United States, 391 F.3d 1313, 1314
(11th Cir. 2004) (“A plaintiff cannot avoid the jurisdictional limitations of the Tucker Act
. . . by artful pleading.”)
Weeks seeks money damages against the defendants. And even under a charitable
view of her complaint, she is asking for specific performance of a contract (an equitable
rather than monetary remedy), which is still problematic, because if district courts had
jurisdiction over specific performance claims, a plaintiff could easily plead around the
Tucker Act by relabeling the claim. The Court therefore holds that it does not have
jurisdiction to entertain a claim that, at bottom, sounds in contract and seeks purely
money damages. See, e.g., Ala. Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1227–28
(5th Cir. 1976)1; Robins v. Bureau of Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006);
Up State Fed. Credit Union v. Walker, 198 F.3d 372, 375 (2d Cir. 1999); Tuscon Airport
Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 646 (9th Cir. 1998); Transohio Sav. Bank v.
OTS, 967 F.2d 598, 610 (D.C. Cir. 1992); Coggeshall Dev. Corp. v. Diamond, 884 F.2d
1, 3 (1st Cir. 1989); Sea-Land Serv., Inc. v. Brown, 600 F.2d 429, 432–33 (3d Cir. 1979).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered before October 1,
Weeks’s motion for leave to file a third amended complaint
Weeks filed a motion for leave to file a third amended complaint rather than
respond to HUD and Donovan’s motion to dismiss. In other words, after the defendants
spent the time and effort to research and then point out the flaws in her pleadings, she
refused to respond directly, opting instead to try to plead around the motion to dismiss.
This is not the first time she has taken this tact: after OHA filed a motion to dismiss,
which contained alternative motions for a more definite statement and for joinder of a
necessary party, Weeks refused to respond and instead filed a second amended complaint
that added HUD and Donovan. This shifting sands approach is no way to litigate a case.
It penalizes the party that properly researches and briefs the relevant issues, and rewards
the party whose lawyers refuse to do their homework before filing suit.
Having said that, it is unclear whether improper litigation tactics can serve as the
basis for denying a plaintiff leave to amend. Under the Federal Rules of Civil Procedure,
federal courts must grant leave to amend a complaint “when justice so requires.” Fed. R.
Civ. P. 15(a). This means that “unless there is a substantial reason to deny leave to
amend, the discretion of the district court is not broad enough to permit denial.” Dussouy
v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). The Courts finds that
Weeks’s procedural gamesmanship comes close to, but falls short of, being an abuse of
the litigation process sufficiently substantial to deny leave to amend. Even so, the Court
can deny leave to amend if an amendment would be “futile.” Brewer v. IRS, 435 F. Supp.
2d 1174, 1176 (S.D. Ala. 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Futility occurs when “the complaint as amended is subject to dismissal.” Id. (citing
Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)).
Weeks’s third amended complaint proposes adding a claim under the
Administrative Procedures Act (APA), 5 U.S.C. §§ 701–706. (Proposed Third Am.
Compl. at ¶ 3, ECF No. 44-1.) She also wants to add HUD employees Brenda Shavers,
Natasha Watson, and Adrian Fields as defendants by asserting claims against all three in
both their individual and official capacities. (Id. at ¶ 11–13.) HUD contends that the
Court lacks subject-matter jurisdiction over the APA claim. Shavers, Watson, and Fields
argue that, even if the Court had jurisdiction, the Act still doesn’t allow suits against
individual employees. Weeks concedes the latter argument, so the Court will only
address jurisdiction under the APA.
Congress amended the APA to waive sovereign immunity for suits seeking relief
other than money damages.2 5 U.S.C. § 702. The APA’s waiver of sovereign immunity
contains two other limitations as well. The first “excludes from its waiver of sovereign
The statute states:
An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the United States is an
indispensable party. The United States may be named as a defendant in
any such action, and a judgment or decree may be entered against the
5 U.S.C. § 702.
immunity . . . claims for which an adequate remedy is available elsewhere.” Transohio
Sav. Bank v. OTC, 967 F.2d 598, 607 (D.C. Cir. 1992).3 The second exclusion applies to
“claims seeking relief expressly or impliedly forbidden by another statute.” Id.
Weeks tries to couch her complaint against the HUD defendants in equitable
language to avoid these exclusions. She does so by asking the Court to order HUD to pay
her under the terms of the contract or to force HUD to release the funds to OHA so that
OHA can pay her. (Third Am. Compl. ¶ 140.) Stated simply, she contends that she is
asking for money damages against OHA and an equitable ruling that HUD must enable
OHA to pay those funds to her.
But no matter what language Weeks uses to describe her claims, she is seeking
money damages under the terms of a contract. This is exactly the type of claim that must
be heard by the Court of Federal Claims. Indeed, the former Fifth Circuit said as much in
Alabama Rural Fire Insurance Co. v. Naylor, 530 F.2d 1221 (5th Cir. 1976). There, the
Secretary of the Farmers Home Administration (FmHA) agreed to pay Alabama Rural
Fire Insurance to provide backup insurance to individuals that applied for loans who
could not have otherwise obtained the required coverage. Shortly after entering into the
agreement, the FmHA cancelled the loan abruptly. The insurer then sued in district court
for injunctive and declaratory relief to prevent the contract’s rescission, to bar the FmHA
The Transohio court found that this exclusion stems from § 704 of the APA, which gives federal
district courts jurisdiction only over “final agency action[s] for which there is no other adequate remedy
in a court subject to judicial review.” 5 U.S.C. § 704.
from soliciting other bids, and to stop the agency from disclosing the terms of its plan.
Although Alabama Rural did not ask for money damages, the Fifth Circuit held that the
Court of Claims, and not the district court, had jurisdiction over the action. 530 F.2d at
1229–30. In so holding, the court relied on how Alabama Rural had designed its lawsuit
“to compel [the FmHA] in their official capacities to specifically perform a contract.” Id.
at 1226. The court also noted how finding “that the district court had jurisdiction under
the APA to exercise its equitable powers so as in effect to compel the United States to
perform the disputed contract . . . would . . . be destroying the jurisdiction of the Court of
Federal Claims by implication.” Ala. Rural, 530 F.2d at 1230; see also Fairview
Township v. EPA, 773 F.2d 517, 528 (3d Cir. 1985) (“If victory for the plaintiff in the
suit would be tantamount to a release of funds in excess of $10,000, then the Claims
Court has exclusive jurisdiction over the suit, even if the action is styled as one for
injunctive or declaratory relief.”).
Weeks’s proposed APA claim suffers from similar problems. Like the plaintiff’s
claim in Alabama Rural, her complaint runs afoul of all three exclusions for jurisdiction
under the APA. First, it seeks money damages for a breach of contract—a claim
specifically forbidden by the APA. 5 U.S.C. § 702; Ala. Rural, 530 F.2d at 1226; Sharp
v. Weinberger, 798 F.2d 1521 (D.C. Cir. 1986). Second, another statute—the Tucker
Act—provides an adequate remedy for her alleged wrongs. See 28 U.S.C. § 1491
(waiving sovereign immunity for contract claim against Federal Government but
requiring plaintiff to bring them in Court of Claims). And third, the Tucker Act is the
only remedy for contract claims against the Federal Government, which means it
implicitly forbids a plaintiff from seeking relief under the APA. Ala. Rural, 530 F.2d at
1230; Up State Fed. Credit Union v. Walker, 198 F.3d 372, 377 (2d Cir. 1999); Tucson
Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 647 (9th Cir. 1998).
In her reply brief, Weeks argues that she does not have an adequate remedy under
the Tucker Act because the Court of Claims cannot grant equitable relief. In her view,
this prohibition on the Court of Claims’ jurisdiction expands the jurisdiction of this Court
to accommodate what she wants—an equitable ruling that HUD must authorize OHA to
pay her under the contract. But this argument ignores that HUD was a party to the
contract giving rise to her claim against OHA for money damages (she admits as much in
her brief), so the agency can be sued in the Court of Claims under the Tucker Act for
contract damages. “That the Court of Claims cannot provide the precise relief
requested”—an order requiring HUD to authorize OHA to pay under the contract they
both were a party to—“is no grounds for denying its jurisdiction over the claim.” Am.
Science & Eng’g, Inc. v. Califano, 571 F.2d 58, 62 (1st Cir. 1978). Her motion for leave
to file an amended complaint is therefore due to be denied as futile, because no matter
how she tries to plead her case, the Court lacks subject-matter jurisdiction over the
contract claims against HUD and Donovan.
V. C ONCLUSION
Janies Weeks failed to respond to HUD and Shaun Donovan’s motion to dismiss
for lack of subject-matter jurisdiction. Instead, she filed a motion for leave to file a third
amended complaint. Even assuming this is an appropriate way to litigate a case, her third
amended complaint is futile because the Court of Federal Claims has exclusive
jurisdiction over contract claims against the Federal Government. Accordingly, it is
hereby ORDERED as follows:
The Motion to Dismiss for Lack of Jurisdiction (ECF No. 36) filed by HUD
and Shaun Donovan is GRANTED, and the claims against them are
dismissed without prejudice.
Janie Weeks’s Motion for Leave to File Third Amendment Complaint
(ECF No. 44) is DENIED.
HUD and Donovan’s Motion for Extension of Time to File Answer (ECF
No. 34) and Motion to Stay (ECF No. 39) are DENIED AS MOOT.
Done this the 24th day of August, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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