Tampa Park Apartments, Inc. v. Donovan

Filing 17

ORDER denying 7 --motion to dismiss for lack of jurisdiction. Signed by Judge Steven D. Merryday on 12/9/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMPA PARK APARTMENTS, INC.,
Plaintiff,
v.

CASE NO.: 8:14-cv-1230-T-23AEP

SHUAN DONOVAN,
Defendant.
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ORDER
The plaintiff sues (Doc. 1) for a breach of contract, a breach of fiduciary duty,
and an accounting. Arguing the absence of subject matter jurisdiction, the defendant
moves (Doc. 7) to dismiss.
To sue the United States in district court, a plaintiff must demonstrate both a
grant of subject matter jurisdiction and a valid waiver of sovereign immunity. C.H.
Sanders Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 117 (2d Cir. 1990). The
plaintiff claims subject matter jurisdiction under 28 U.S.C. § 1331, which states, “The
district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” The plaintiff’s claims against the
defendant, a federal officer, depend on federal common law and, therefore, “arise
under” federal law. See Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1280 (7th Cir.

1981) (“Suits to enforce contracts with federal agencies are governed by federal
common law . . . and as a result arise under federal law for purposes of section
1331.”). Accordingly, subject matter jurisdiction exists over the plaintiff’s claims.
Also, the plaintiff identifies a valid waiver of sovereign immunity.
Section 1702 of the National Housing Act states that in “carrying out the provisions
of . . . subchapter[] II” and other subchapters of the Act the Secretary of Housing and
Urban Development (i.e., the defendant in this action) is “authorized in his official
capacity, to sue and be sued in any court of competent jurisdiction, State or Federal.”
The parties agree (Doc. 7 at 10; Doc. 11 at 5) that the defendant issued the disputed
note and loan under Sections 1715l and 1717z-1a, each of which is in Subchapter II
of the Act. Further, a “sue and be sued” clause, such as Section 1702, is a valid
waiver of sovereign immunity. See Trans Bay Engineers & Builders, Inc. v. Hills, 551
F.2d 370 (D.C. Cir. 1976); Western Sec. Co., 937 F.2d 1276.
The defendant mistakenly argues that under the Tucker Act the Court of
Federal Claims has exclusive jurisdiction over all contract claims against the United
States for damages over $10,000. “Rather, that court’s jurisdiction is ‘exclusive’ only
to the extent that Congress has not granted any other court authority to hear the
claims that may be decided by the Claims Court.” Bowen v. Massachusetts, 487
U.S. 879, 910 n. 48 (1988). As discussed above, an independent grant of jurisdiction
and an independent waiver of sovereign immunity exist in this action.

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Further, the Tucker Act does not grant the Court of Federal Claims
jurisdiction over the plaintiff’s claims. A claim “cognizable under the Tucker Act,”
“must be one for money damages against the United States.” United States v. Mitchell,
463 U.S. 206, 216 (1983). The plaintiff seeks recovery from an escrow account
containing money paid by the plaintiff under a contract; the plaintiff claims nothing
from the general funds of the United States. (Doc. 11 at 7) Accordingly, the Tucker
Act is inapplicable.
Because subject matter jurisdiction exists over the plaintiff’s claims and the
defendant waived sovereign immunity, the motion (Doc. 7) to dismiss is DENIED.
ORDERED in Tampa, Florida, on December 9, 2014.

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