BFNO Properties, LLC, et al v. Housing Authority of New Orleans, et al

Filing 25

ORDERED that 5 Motion to Remand to State Court is DENIED. Signed by Judge Susie Morgan. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BFNO PROPERTIES, LLC and
TUCKER PROPERTY HOLDINGS, LLC
Plaintiffs,

CIVIL ACTION

VERSUS

No. 15-300

HOUSING AUTHORITY OF
NEW ORLEANS, ET AL.,
Defendants,

SECTION “E”(5)
ORDER

Before the Court is a Motion to Remand filed by Plaintiffs BFNO Properties, LLC
and Tucker Property Holdings, LLC.1 For the reasons set forth below, Plaintiffs’ Motion
to Remand is DENIED.
BACKGROUND
Plaintiffs BFNO Properties, LLC and Tucker Property Holdings, LLC are the
owners and operators of Jackson’s Landing North and Jackson’s Landing South,
apartments located in New Orleans, Louisiana in the area referred to as Algiers.2
Defendant Housing Authority of New Orleans (“HANO”) is a public housing authority
that assists in providing affordable housing to low and moderate-income families in
New Orleans.3
R. Doc. 5.
R. Doc. 1-1 at p. 1.
3 Although HANO is a political subdivision of the state, it is not entitled to sovereign immunity under the
Eleventh Amendment as an arm of the state. Louisiana Revised Statutes define a local housing authority
as “a political subdivision of this state.” La. R.S. § 40:384(16). See also Walker v. Woods, No. 10-4267,
2011 WL 2637328, at *3 n.10 (E.D. La. July 6, 2011) (Africk, J.); Zeigler v. Hous. Auth. of New Orleans,
No. 10-2956, 2011 WL 39008, at *1 (E.D. La. Jan. 5, 2011) (Barbier, J.). However, this categorization
alone does not give an entity Eleventh Amendment immunity as an arm of the state. “The Fifth Circuit
employs [a] six-factor test to determine whether an entity is an arm of the state such that it is entitled to
sovereign immunity,” and the fact that Louisiana statutes refer to HANO as a political subdivision “is
relevant only to the first [of the six] factors.” Garcia v. Hous. Auth. of New Orleans, No. 12-1863, 2013
WL 264332, at **3–4 (E.D. La. Jan. 23, 2013) (Africk, J.). At least three sections of this Court have
balanced the six factors and found HANO is not entitled to Eleventh Amendment immunity. See id.;
Kenyatta–Bean v. Hous. Auth. of New Orleans, No. 04–2592, 2005 WL 3543793 (E.D. La. Nov. 18,
1

2

In 2002, the U.S. Department of Housing and Urban Development (“HUD”)
determined that HANO was in substantial default of its obligations under its contract
with HUD, which authorized HUD to force HANO into federal receivership.4 While
HANO was under receivership, HUD appointed David Gilmore to be the Executive
Administrator and Receiver (“Administrative Receiver”) for HANO.5
In December 2010, HANO entered into Housing Assistance Payments Contracts
with Plaintiffs for the Section 8 Project-Based Voucher Program at Jackson’s Landing
North and South (“the HAP Contracts”).6 David Gilmore signed the HAP Contracts on
HANO’s behalf.7 The purpose of the HAP Contracts “is to provide housing assistance
payments for eligible families who lease contract units that comply with the HUD
[Housing Quality Standards] from the owner[s].”8 Effective December 31, 2010 for a
term of 15 years, the HAP Contracts require Plaintiffs to reserve certain units in
Jackson’s Landing North and South for low-income tenants in return for HANO making

2005) (Lemmon, J.); Norris v. Hous. Auth. of New Orleans, No. 02–468, 2003 WL 22384936 (E.D. La.
Oct. 16, 2003) (Chasez, Mag. J.); see also Hous. Auth. of City of New Iberia v. Axis Surplus Ins. Co., No.
08–0020, 2008 WL 731205 (W.D. La. Mar. 17, 2008) (Hill, Mag. J.) (holding that the Housing Authority
of the City of New Iberia is not an arm of the state for the same reasons that HANO is not an arm of the
state). This Court sees no reason to disagree with the persuasive reasoning in these cases.
4 R. Doc. 1-1 at p. 10; HUD Returns Housing Authority of New Orleans to Local Control, NOLA.GOV (May
28,
2014),
http://www.nola.gov/mayor/press-releases/2014/20140528-hano-to-transition-to-localcontrol/ (“Prior to administrative receivership, HUD, the City of New Orleans, and HANO implemented
several reforms and oversight strategies which failed to improve operations at HANO. HANO spent
decades in serious default. HANO struggled to obligate grants including millions of dollars in HOPE VI
grants, or implement proper procurement to revitalize its aging and obsolete public housing stock. HANO
was deficient in other operational areas, such excessive vacant unit turnover time (200 days), over four
times the satisfactory number of days.”).
5 Housing Authority of New Orleans, NOLA.GOV, http://www.nola.gov/boards/housing-authority-of-neworleans/ (last visited Apr. 14, 2015); R. Doc. 1-1 at p. 10.
6 BFNO Properties, LLC entered into the HAP Contract for Jackson’s Landing – North. See R. Doc. 5-2.
The HAP Contract for Jackson’s Landing – South was entered into by Garden Oaks Holdings, LLC, which
assigned its HAP Contract to Tucker Property Holdings, LLC on December 28, 2012. See R. Doc. 1-1 at p.
2; R. Doc. 5-3. Plaintiffs also have tenants under the Tenant-Based Housing Choice Voucher Program. R.
Doc. 1-1 at p. 2.
7 R. Doc. 1-1 at pp. 1–2. Gilmore in his affidavit represents that both Jackson’s Landing North and South
were under his jurisdiction and authority. R. Doc. 1-1 at p. 10.
8 R. Doc. 5-2 at p. 10; R. Doc. 5-3 at p. 10.
2

housing assistance payments to Plaintiffs for the difference between the low-income
tenants’ contributions and the rent specified in the HAP Contracts.9
David Gilmore also signed a Decision Memorandum dated March 26, 2014
regarding the use of certain rent comparables for the calculation of Plaintiffs’ reasonable
rent increases.10 In Gilmore’s affidavit attached to Plaintiffs’ petition, he states that he
signed the Decision Memorandum and authorized the movement of tenants from one
apartment to another during reconstruction of the apartment complexes.11 In July of
2014, HANO was returned to local control, and Gregg Fortner was appointed as
Executive Director of HANO to lead the transition.12
On January 20, 2015, Plaintiffs filed a petition in the Civil District Court for the
Parish of Orleans, State of Louisiana seeking damages for breach of contract and
injunctive relief against HANO and Dwayne G. Bernal, Alice Reiner, Toni Hackett
Antrum, Glen M. Pilie, and Vonda Rice, in their capacities as members of HANO’s Board
of Commissioners.13 Plaintiffs’ petition makes the following allegations:
(1) “HANO owes plaintiffs in an amount exceeding $250,000 for funds
wrongfully recaptured and/or withheld that HANO refuses to pay
plaintiffs, and said amount continues to increase monthly as HANO
wrongfully recaptures and/or withholds funds owed to plaintiffs based on
the [HAP] contracts;”14
(2) “Plaintiffs have not received any new tenants for the Project-Based
Housing Choice Voucher Program since June of 2014 and have a number
of vacancies which should have been filled;”15
(3) “HANO has refused to abide by the agreement[s] made between
plaintiffs and HANO” that were approved by David Gilmore while HANO
was in receivership and under his absolute control as Executive
R. Doc. 5-2; R. Doc. 5-3.
R. Doc. 6-1 at pp. 86–87 (Exhibit “E”); R. Doc. 1-1 at ¶¶ XI–XII, XIV; R. Doc. 1-1 at p. 10.
11 R. Doc. 1-1 at p. 10 (Exhibit “C”); R. Doc. 1-1 at ¶¶ XII, XIV.
12 See HANO Fact Sheet, HANO.ORG (Winter 2015), http://www.hano.org (follow “Our Story” hyperlink;
then follow “Fact Sheet” hyperlink).
13 R. Doc. 1-1 at p. 1.
14 Id. at ¶ IX.
15 Id. at ¶ X.
9

10

3

Administrator (i) “regarding the moving of tenants during the
reconstruction of the facilities,” and (ii) “approv[ing] a Rent
Reasonableness (Rent Increase Request) authorizing plaintiffs to use rent
comparables furnished by a state licensed appraiser for the calculation of
reasonable rent increases;”16 and
(4) “HANO has refused to recognize the rent increases that became
automatic once Jackson’s Landing Apartments North was recognized as a
tax credit property in 2014.”17
Plaintiffs seek remand of their action to state court for “funds due to [them under
their contractual agreements with HANO] as well as damages, costs, attorney’s fees, and
equitable relief.18 The petition also requests a temporary restraining order, a
preliminary injunction, and a permanent injunction to stop HANO from monthly
recapturing and/or withholding any funds due to Plaintiffs.19 Before removal, the state
court issued a temporary restraining order prohibiting HANO or anyone acting at its
direction from wrongfully recapturing and/or withholding future or past rents and any
other funds due to Plaintiffs.20 The temporary restraining order expired on January 30,
2015 at 12:00 pm.21
On January 30, 2015, Defendants removed the case to this Court, asserting in the
notice of removal that the Court has federal question subject-matter jurisdiction.22 On
February 11, 2015, Plaintiffs moved to remand the case to state court arguing that the
petition asserts no federal claims and, therefore, the Court lacks subject-matter
jurisdiction over this case.23 Plaintiffs argue in their memorandum that their state court

Id. at ¶¶ XI–XIII, XIV.
Id. at ¶ XIII; R. Doc. 5-1 at p. 2.
18 R. Doc. 1-1 at p. 4
19 Id.
20 Id. at p. 7
21 Id.
22 R. Doc. 1 at p. 2. Both parties agree that diversity jurisdiction does not exist. R. Doc. 1 at p. 2; R. Doc. 5
at p. 2.
23 R. Doc. 5.
16
17

4

petition brings claims solely for breach of contract arising under Louisiana law.24 On
February 25, 2015, Defendants filed an amended notice of removal further specifying
the federal statutes and regulations they claim support removal under 28 U.S.C. §
1331.25 On February 25, 2015, Plaintiffs also filed a motion to expedite consideration of
the motion to remand.26 The Court granted the motion to expedite,27 and the motion to
remand is now under submission.
LAW AND ANALYSIS
“Federal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute.”28 However, “federal courts have a ‘virtually
unflagging obligation . . . to exercise the jurisdiction given them.’”29 Pursuant to 28
U.S.C. § 1441, a defendant may remove an action from state court to federal court if the
action is one over which the federal court possesses original jurisdiction.30 The
removing party bears the burden of proving federal subject-matter jurisdiction exists
and thus removal is proper.31 In order to determine whether jurisdiction exists, the
24 See R. Doc. 5-1 at p. 4 (“The causes of action stated by the Petition are for breach-of-contract claims
arising under Louisiana Law. . . . [T]he HAP contracts also address both vacancy and rent adjustments.”).
25 R. Doc. 10. Defendants assert in their amended notice of removal that “this Court has original
jurisdiction over this action pursuant to 28 U.S.C. § 1331, § 1355, and §1337.” R. Doc. 10 at pp. 2–3.
Section 1331 grants the federal district courts “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States,” and section 1337 grants the federal district courts
“original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating
commerce or protecting trade and commerce against restraints and monopolies.” 28 U.S.C. § 1337.
“Judicial interpretations of ‘arising under’ are equally applicable to 28 U.S.C. § 1331 and 28 U.S.C. § 1337.”
Carlson v. Coca-Cola Co., 483 F.2d 279, 280 n.1 (9th Cir. 1973) (citing Russo v. Kirby, 453 F.2d 548, 551
n.2 (2d Cir. 1971)). Section 1355 grants the federal district courts “original jurisdiction, exclusive of the
courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or
forfeiture, pecuniary or otherwise, incurred under any Act of Congress.” 28 U.S.C. § 1355. Although
Defendants cite this statute, they fail to explain how it applies in this case.
26 R. Doc. 11.
27 R. Doc. 12.
28 Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (internal quotation marks and citation omitted).
29 Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir. 1993) (quoting Colorado River
Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976)).
30 28 U.S.C. § 1441; Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(citation omitted).
31 Manguno, 276 F.3d at 723 (citations omitted).

5

federal court considers the claims in the state court pleadings as they existed at the time
of removal.32 Any doubt as to whether removal jurisdiction is proper should be resolved
in favor of remand because removal jurisdiction must be strictly construed.33
In this case, there is no allegation of diversity jurisdiction; thus, there must be
federal question jurisdiction for removal to be proper.34 District courts have federal
question jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.”35 Cases “arise under” federal law in one of two ways. Most
commonly, federal question jurisdiction is invoked when a plaintiff pleads a cause of
action created by federal law.36 “There is, however, another longstanding, if less
frequently encountered, variety of federal ‘arising under’ jurisdiction . . . .”37 That is,
federal question jurisdiction will lie if “a well-pleaded complaint establishes . . . that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.”38
Plaintiffs argue the allegations in the petition do not present a claim created by
federal law, raise a substantial issue of federal law, or provide any other statutory,

See id.
Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000); Willy v. Coastal Corp., 855 F.2d 1160,
1164 (5th Cir. 1988).
34 See Willy, 855 F.2d at 1164.
35 28 U.S.C. § 1331 (emphasis added).
36 See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).
37 Id.
38 Singh v. Duane Morris LLP, 538 F.3d 334, 337–38 (2008) (internal quotation marks and citation
omitted). For removal purposes, “[t]he presence or absence of federal-question jurisdiction is governed by
the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). The well-pleaded complaint rule recognizes the principle that a
plaintiff is the master of his complaint. Carpenter v. Wichita Falls Ind. School Dist., 44 F.3d 363, 366 (5th
Cir. 1995). There are, however, narrow exceptions to the well-pleaded complaint rule. One such exception
exists when Congress creates an exception by expressly providing that a state court action asserting only
state law claims may be removed to federal court. See Beneficial Nat’l Bank, et al. v. Anderson, 539 U.S. 1,
6 (2003). The other exception is where “a federal statute wholly displaces the state-law cause of action
through complete preemption.” Id. at 8. Absent these extraordinary circumstances, the well-pleaded
complaint rule governs. Carpenter, 44 F.3d at 367; Caterpillar, 482 U.S. at 392.
32
33

6

constitutional, or jurisprudential basis for the exercise of federal court jurisdiction.39 For
this reason, Plaintiffs contend this case must be remanded to state court for lack of
federal subject-matter jurisdiction. Defendants contend the petition “alleges claims
which arise under and are governed by federal law and/or arise under and are governed
by Acts of Congress regulating commerce,” including but not limited to Section 6(j) of
the United States Housing Act of 1937, codified as 42 U.S.C. § 1437d(j) (“Section 6(j)”),
and certain HUD federal regulations.40 Defendants further argue that “Plaintiffs’ state
court Petition raises claims that both arise under federal law and raise substantial
federal questions,” and, even if Plaintiffs were bringing only claims for state law breach
of contract, “the (inapplicable) contractual provisions that Plaintiffs cite in the motion
to remand are so inextricably intertwined with the federal statutes and regulations at
issue that Plaintiffs’ rights cannot be determined without deciding substantial questions
of federal law.”41
Federal question jurisdiction exists when a plaintiff’s right to relief necessarily
depends on the resolution of a substantial question of federal law.42 A case falls under
this special category of cases “if a federal issue is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in federal court without
R. Doc. 5; R. Doc. 15.
R. Doc. 10 at pp. 2–3. Defendants argue the well-pleaded complaint rule does not apply in this case
because Plaintiffs have “artfully pleaded” by specifically avoiding making reference to any of the federal
statutes or regulations that Plaintiffs will necessarily rely on. R. Doc. 16 at p. 8. “The artful pleading
doctrine is a narrow exception to the well-pleaded complaint rule, and it prevents a plaintiff from
defeating removal by failing to plead necessary federal questions. The artful pleading doctrine does not
apply, however, unless federal law completely preempts the field.” Terrebonne Homecare, Inc. v. SMA
Health Plan, Inc., 271 F.3d 186, 188 (5th Cir. 2001) (citations omitted). Defendants have failed to argue,
let alone demonstrate, that Plaintiffs’ claims are completely preempted. Nor do Defendants point to any
provision in the federal statutes demonstrating Congress has expressly preempted Plaintiffs’ state law
claims. See Beneficial Nat’l Bank, 539 U.S. at 6–7, 11. Thus, the artful pleading doctrine does not apply in
this case.
41 R. Doc. 16 at p. 2.
42 See Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013) (quoting Empire Healthchoice Assurance, Inc. v.
McVeigh, 547 U.S. 677, 699 (2006)).
39

40

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disrupting the federal-state balance approved by Congress. Where all four of these
requirements are met, . . . jurisdiction is proper because there is a ‘serious federal
interest in claiming the advantages thought to be inherent in a federal forum,’ which can
be vindicated without disrupting Congress’s intended division of labor between state
and federal courts.”43 “Ultimately, whether a federal issue embedded in the matrix of a
state law claim will support federal question jurisdiction entails a pragmatic assessment
of the nature of the federal interest at stake . . . .”44
In 1974, Congress amended the United States Housing Act of 1937 to create the
Section 8 housing program.45 “The Section 8 program is a vast effort on the part of
federal, state, and local authorities to provide decent, safe, and sanitary housing to lowincome families, the elderly, and the disabled. The program is administered by [HUD] in
conjunction with state and local public housing agencies across the country,” like
HANO.46 As part of the program, HUD can either enter into HAP contracts directly with
landlords or enter into contracts with state or local public housing authorities, which in
turn receive funds from HUD in exchange for entering into HAP contracts with and
subsidizing low-rent landlords.47 Ordinarily HUD does not control public housing
authorities like HANO; however, Section 6 expressly provides that HUD can determine
public housing authorities are “troubled,” and those deemed in “substantial default” can
be placed under administrative HUD receivership.48 If that occurs, HUD can appoint an
Id. (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313–14 (2005)).
Howery v. Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001).
45 See 42 U.S.C. § 1437f.
46 One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 716 F.3d 218, 219 (1st Cir. 2013) cert. denied,
134 S. Ct. 986 775 (2014).
47 See Gloucester Twp. Hous. Auth. v. Franklin Square Associates, No. 12-953, 2013 WL 3990820, at *1
(D.N.J. Aug. 2, 2013).
48 See 42 U.S.C. §§ 1437d(g), (j). “A PHA may be declared in substantial default when the PHA: (1)
Violates a federal statute; (2) Violates a federal regulation; or (3) Violates one or more terms of an ACC, or
other covenants or conditions to which the PHA is subject.” 24 C.F.R. § 907.3. Additionally, “in the case
43

44

8

administrative receiver or seek to have the court appoint an administrative receiver to
oversee the defaulting or troubled housing authority’s operations.49 The provisions of
Section 6 demonstrate Congress’s “intent to ensure that federal public monies are
distributed to state public housing agencies that, among other things, generally
maintain public housing in accordance with certain quality standards.”50
Supreme Court and Fifth Circuit case law sanction federal question jurisdiction
based on the need to resolve a substantial federal question. In Singh v. Duane Morris
LLP, the Fifth Circuit, relying on the Supreme Court’s opinion in Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing, held that substantial “federal
question jurisdiction exists where (1) resolving a federal issue is necessary to resolution
of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is
substantial; and (4) federal jurisdiction will not disturb the balance of federal and state
judicial responsibilities.”51 On the facts in Singh, the Fifth Circuit found federal
jurisdiction was lacking where “the federal issue [did not require] resolution of an
important question of law” but rather “predominantly one of fact.”52

where a PHA is designated as a troubled performer under PHAS, the PHA shall be in substantial default if
the PHA: (1) Fails to execute an MOA; (2) Fails to comply with the terms of an MOA; or (3) Fails to show
substantial improvement, as provided in § 902.75(d) of this chapter.” Id.
49 For troubled housing agencies in substantial default, if the agency has at least 1,250 units, HUD will
petition for the appointment of an administrative receiver. For a troubled agency with fewer than 1,250
units, HUD can either petition for the appointment of a receiver or take over the agency and appoint an
individual or entity to act as an administrative receiver and assume HUD’s responsibilities for
administration of the agency. See 24 C.F.R. § 902.83; 24 C.F.R. § 907.7.
50 Hill v. San Francisco Hous. Auth., 207 F. Supp. 2d 1021, 1028 (N.D. Cal. 2002).
51 Singh v. Duane Morris LLP, 538 F.3d 334, 338 (5th Cir. 2008) (pre-Gunn).
52 Id. at 339. Singh does not hold that “only pure legal issues can trigger substantial federal question
jurisdiction.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1299 (11th Cir. 2008). Rather,
“resolution of pure issues of federal law provides the strongest basis for ‘resort to the experience,
solicitude, and hope of uniformity that a federal forum offers on federal issues.’” Id. (quoting Grable &
Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005)).
9

The decision to apply the substantial federal question doctrine in a particular
case is necessarily fact bound,53 and indeed some courts have found the mere reference
to HUD regulations as part of a state law claim is insufficient to invoke substantial
federal question jurisdiction.54 The case now before the Court does not merely reference
HUD regulations. Instead, it also calls into question the authority of HUD-appointed
and court-appointed administrative receivers to make written and oral agreements that
are binding on housing authorities after they return to local control.
The Fifth Circuit has not decided a case involving the applicability of substantial
federal question jurisdiction when there are breach-of-contract claims involving housing
assistance payments contracts. The two circuit courts that have considered the issue in
cases brought by apartment owners against housing agencies for breach of housing
assistance

payments

contracts

found

they

had

substantial

federal

question

jurisdiction.55 In One & Ken Valley Housing Group v. Maine State Housing Authority,
the First Circuit inquired into whether it had federal jurisdiction sua sponte.56 The
plaintiffs were Section 8 landlords who sued a housing authority bringing state law
breach-of-contract claims, alleging the housing authority “had wrongfully refused to
grant them certain annual increases in their Section 8 payments.”57 The housing
authority then impleaded HUD as a third-party defendant, arguing that if it breached
One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 716 F.3d 218, 225 (1st Cir. 2013) cert. denied,
134 S. Ct. 986 (citing Gully v. First Nat’l Bank in Meridian, 299 U.S. 109 (1936) (Cardozo, J.)).
54 See, e.g., W. Michigan Woods Ltd. Dividend Hous. Ass'n Ltd. P'ship v. City of Kalamazoo, No. 09-79,
2009 WL 2392899, at *5 (W.D. Mich. Aug. 3, 2009); Rivera v. Phipps Houses Servs., Inc., No. 01-2324,
2001 WL 740779, at *5 (S.D.N.Y. June 29, 2001); N. Jefferson Square Associates, L.P. v. Virginia Hous.
Dev. Auth., 94 F. Supp. 2d 709, 718 (E.D. Va. 2000) aff'd, 32 F. App’x 684 (4th Cir. 2002); Kunkler v.
Fort Lauderdale Hous. Auth., 764 F. Supp. 171, 174 (S.D. Fla. 1991); Lindy v. Lynn, 501 F.2d 1367, 1369
(3d Cir. 1974).
55 One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 716 F.3d 218, 220 (1st Cir. 2013) cert. denied,
134 S. Ct. 986 (2014); Evergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 776 F.3d 463,
467 (7th Cir. 2015). The Court notes both of these actions originated in federal court.
56 716 F.3d at 224.
57 Id. at 220.
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the housing assistance payments contract, it had done so only at HUD’s direction since
it followed a guideline promulgated by HUD pursuant to a federal statute.58
The First Circuit acknowledged that the substantial federal question doctrine
“should be applied with caution” but went on to find the case was “one of the few cases
that fit[] squarely within the [substantial federal question doctrine].”59 In so finding, the
First Circuit stated:
The dispute in this case involves a federal contractor’s implementation of a
federal program; the contracts at issue were drafted and approved by a
federal agency and signed by a federal official; and the plaintiffs allege that
the contractor (here, [the housing authority]) was in breach of the
agreement by following a guideline promulgated by a federal agency
pursuant to a federal statute. Singly, none of these “federal ingredients”—a
claim against a federal contractor; an agreement drafted and approved by
a federal agency; a defense based on a federal statute or guideline—would
be sufficient to establish “arising under” jurisdiction. Yet the scope of
[substantial federal question] jurisdiction is determined by the totality of
the circumstances, not by a single-factor test. Based on the totality of the
circumstances, we find that the federal ingredients of the case
predominate.60
Additionally, the First Circuit reasoned that resolution of the nearly pure issue of
law could govern other cases involving Section 8 landlords, and “‘[t]he issue is
potentially so important to the success of the [Section 8] program—since on its
resolution may turn the amount of lower-income housing actually provided—that [it]
believe[d] that Congress, had it thought about the matter, would have wanted the
question to be decided by federal courts applying a uniform principle.’”61 Moreover, the

Id.
Id. at 224 (internal quotation marks and citation omitted). The First Circuit refers to the federal
question doctrine as the “federal ingredient exception.” Id.
60 Id.
61 Id. at 225 (quoting Price v. Pierce, 823 F.2d 1114, 1119–20 (7th Cir. 1987) (Posner, J.)).
58
59

11

First Circuit found “‘there [wa]s no discernable state interest in a state forum’ that
would outweigh the federal interest in uniformity.”62
In January of 2015, the Seventh Circuit in Evergreen Square of Cudahy v.
Wisconsin Housing and Economic Development Authority cited Ken Valley when
reversing and remanding a district court’s dismissal of an action by apartment owners
against a housing authority for lack of subject-matter jurisdiction.63 As in this case
involving HANO, the plaintiffs were apartment owners alleging a housing agency
breached a housing assistance payments contract by refusing to approve annual rent
increases, as required by Section 8.64 The housing authority also filed a third-party
complaint against HUD, “alleging that, if [the housing authority was] found to have
breached the [housing assistance payments] contracts, then those breaches resulted
from [the housing authority] following congressional and HUD directives.”65
The Seventh Circuit found Ken Valley’s reasoning persuasive, holding “[t]he
resolution of th[e] case turn[ed] on issues of federal law—specifically, the application of
42 U.S.C. § 1437f and related regulations and notices promulgated by HUD.”66 The court
found the issues were “necessarily raised, actually disputed, and substantial. While state
law may create the breach-of-contract causes of action, the only disputed issues involve
the proper interpretation of Section 8 and HUD’s implementing guidance.”67

Id. (quoting Bender v. Jordan, 623 F.3d 1128, 1131 (D.C. Cir. 2010)).
776 F.3d 463, 467 (7th Cir. 2015).
64 Id. at 464–65, 467.
65 Id. at 465.
66 Id. at 467.
67 Id.
62
63

12

Additionally, the Seventh Circuit found the federal issues were “‘capable of
resolution in federal court without disrupting the federal-state balance approved by
Congress.’”68 The court reasoned:
Unlike a typical breach-of-contract case, the [housing assistance
payments] contracts at issue are ones to which HUD, a federal agency,
prescribes both the form and content. The HAP contracts must be
approved by HUD and their terms are administered pursuant to federal
laws and regulations. [The housing authority] expressly contends that, if
there was any breach of contract, then federal law required it. Similar
lawsuits have been brought nationwide by Section 8 property owners. In
the aggregate, these cases have the potential to substantially influence the
scope and success of the Section 8 program. Accordingly, the federal
government has a strong interest in these issues being decided according
to uniform principles. The desirability of a uniform interpretation of these
contracts ... will best be achieved by allowing suit in federal courts. We
find that this case fits within the “special and small category of cases” in
which federal “arising under” jurisdiction lies over a complaint raising
state-law causes of action.69
The circuit courts in Ken Valley and Evergreen Square both found substantial
federal question jurisdiction existed over landlords’ claims concerning housing
assistance payments contracts with housing authorities. The argument for exercising
federal question jurisdiction in this case is more compelling, as the outcome could have
a broader impact for housing agencies placed into receivership and managed by a HUD
or court-appointed administrative receiver. Although Plaintiffs claim in their motion to
remand that their petition asserts only state law breach-of-contract claims,70 this case
“arises in the context of a complex web of statutes and regulations governing federal

Id. (quoting Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013)).
Id. (internal quotation marks and citations omitted).
70 The petition does not specify the basis of Plaintiffs’ claims. The memorandum in support of Plaintiffs’
motion to remand states they are bringing state law claims for breach of contract. See R. Doc. 5-1 at p. 4
(“The causes of action stated by the Petition are for breach-of-contract claims arising under Louisiana
Law. . . . [T]he HAP contracts also address both vacancy and rent adjustments.”).
68
69

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housing aid.”71 HANO was under federal receivership pursuant to Section 6(j) at the
time the HAP Contracts were entered into but is now under local control. David Gilmore
signed the HAP Contracts and also allegedly made certain other agreements while
Administrative Receiver for HANO. The parties now dispute the binding nature of
Gilmore’s actions since HANO has emerged from administrative receivership. Gilmore’s
appointment and the extent of his authority are governed by federal statute and the
Administrative Receivership Services Contract between HUD and Gilmore.72 A decision
in this case could affect the binding nature of agreements made by HUD-appointed and
court-appointed administrative receivers. The decision in this case will be based, in
large part, on the application of federal law.
Looking to “the importance of the [federal] issue to the federal system as a whole”
rather than just the importance to the parties, the Court finds this issue to be a
substantial one.73 Not only could “the outcome of the claim . . . turn on a new
interpretation of a federal statute or regulation” that could impact future cases involving
public housing authorities under administrative receivership, but the case also has
“‘broader significance . . . for the Federal Government’”74 given the fact that HANO was
managed by HUD at the time the HAP Contracts were entered into and Gilmore’s
authority as Executive Administrator to bind HANO is in question.75

One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 716 F.3d 218, 220 (1st Cir. 2013) cert. denied,
134 S. Ct. 986 (2014). For further discussion about the Section 8 provision of the New Deal-era Housing
Act, see id. at 220–24.
72 See 42 U.S.C. § 1437d(j); R. Doc. 16-2.
73 See Gunn, 133 S. Ct. at 1066 (“[I]t is not enough that the federal issue be significant to the particular
parties in the immediate suit; that will always be true when the state claim ‘necessarily raises’ a disputed
federal issue . . . . The substantiality inquiry . . . looks instead to the importance of the issue to the federal
system as a whole.”).
74 Municipality of Mayaguez v. Corporacion Para el Desarrollo del Oeste, Inc., 726 F.3d 8, 14 (1st Cir.
2013) (quoting Gunn, 133 S.Ct. at 1066).
75 Id. (“[A] federal issue may also be substantial where the resolution of the issue has ‘broader significance
. . . for the Federal Government.’ Gunn, 133 S.Ct. at 1066. That is, because ‘[t]he Government has a direct
71

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Furthermore, just as in Ken Valley and Evergreen Square, the HAP Contracts are
administered pursuant to federal statutes and regulations, and the Court will be
required to interpret these laws in determining whether HANO breached the HAP
Contracts and other agreements.76 Interpretations of provisions of the HAP Contracts
and associated HUD regulations could impact how HUD administers the Section 8
Project-Based Voucher Program. Considering the federal issues presented in this case,
especially those relating to HUD and the authority of its appointed administrative
receiver, the Court finds there is a “serious federal interest in claiming the advantages
thought to be inherent in a federal forum.”77
The Court finds the resolution of Plaintiffs’ claims turns on issues of federal law—
specifically, the interpretation of Section 6(j) of the United States Housing Act of 1937
and regulations promulgated by HUD. These issues are necessarily raised, actually
disputed, and substantial. The parties dispute both the proper interpretation of Section
6(j) with respect to the authority of David Gilmore as Executive Administrator to bind
the housing authority after it is no longer under federal receivership and also the
applicability and interpretation of certain HUD regulations.78 Looking at the totality of

interest in the availability of a federal forum to vindicate its own administrative action,’ Grable [& Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg.], 545 U.S. [308,] 315 [(2005)], the Court has repeatedly
suggested that a federal issue is more likely to be substantial where a claim between two private parties,
though based in state law, directly challenges the propriety of an action taken by ‘a federal department,
agency, or service.’ Empire Healthchoice Assurance [Inc. v. McVeigh], 547 U.S. [677,] 700 [(2006)].”).
76 See Evergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 776 F.3d 463, 467–68 (7th
Cir. 2015). Although HUD was a third-party defendant in these two cases and HUD is not in this case, that
fact is not determinative since the HAP Contracts between Plaintiffs and HANO are still administered
pursuant to federal statutes and regulations. “The lack of a private cause of action under federal law is
relevant to, but not dispositive of, the question of whether the right is substantial enough to satisfy the
exercise of federal jurisdiction. The federal issue must be a substantial one that indicates a serious federal
interest in claiming the advantages inherent in a federal forum.” Louisiana v. Abbott Labs., No. 13-681,
2014 WL 4924329, at *4 (M.D. La. Sept. 30, 2014).
77 See Grable, 545 U.S. at 313.
78 See Evergreen, 776 F.3d at 467.
15

the circumstances surrounding this specific instance, the federal issues raised in
Plaintiffs’ case are sufficiently substantial to confer federal question jurisdiction.
The Court also finds these issues are “capable of resolution in federal court
without disrupting the federal-state balance approved by Congress.”79 The HAP
Contracts at issue in this case were entered into while HANO was under federal
receivership and managed by HUD, a federal agency. Additionally, “[u]nlike a typical
breach-of-contract case, the HAP Contracts at issue are ones to which HUD . . .
prescribes both the form and content. The HAP Contracts must be approved by HUD
and their terms are administered pursuant to federal laws and regulations.”80
Furthermore, the interpretation of Section 6(j) of the United States Housing Act could
have implications for future cases involving troubled housing agencies.81 For this
reason, the federal government has an interest in the interpretation of the HAP
Contracts as well as the interpretation of federal laws—such as Section 6(j)—and HUD
regulations as they relate to Section 8 housing. This federal interest will best be served
by allowing suit in federal courts.82 Additionally, because the Court will examine David
Gilmore’s authority as Administrative Receiver and interpret Section 6(j) and the
Administrative Receivership Services Contract between HUD and Gilmore, certain

79 Gunn, 133 S.Ct. at 1065. Allowing federal jurisdiction in a case such as this one will not “materially
affect, or threaten to affect, the normal currents of litigation,” Grable, 545 U.S. at 319, because this
decision is unlikely to impact Louisiana’s body of contract law in any significant way. Additionally, the
Court finds any state interest in this case is outweighed by the federal interests at hand.
80 Evergreen, 776 F.3d at 467–68. See also One & Ken Valley Hous. Grp. v. Maine State Hous. Auth., 716
F.3d 218, 221 (1st Cir. 2013) cert. denied, 134 S. Ct. 986 (2014) (“HUD has . . . drafted a standard form
contract for state and local agencies to use when entering into agreements with Section 8 landlords.”).
81 See Evergreen, 776 F.3d at 468 (citing Ken Valley, 716 F.3d at 225 n.5.).
82 See id. (quoting Price v. Pierce, 823 F.2d 1114, 1120 (7th Cir. 1987)).

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issues may be governed by federal common law.83 This further supports the exercise of
federal question jurisdiction over this case.
The Court finds that this case fits within the category of cases where the state law
claims “arise under” federal law because they raise a substantial federal question.84
Because this Court has federal question jurisdiction over Plaintiffs’ claims, the motion to
remand is denied.
CONCLUSION
IT IS ORDERED that Plaintiffs’ motion to remand is DENIED.

16th
New Orleans, Louisiana, this ___ day of April, 2015.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

See Price v. Pierce, 823 F.2d 1114, 1119–21 (7th Cir. 1987) (citing Holbrook v. Pitt, 643 F.2d 1261, 1270
n.16 (7th Cir. 1981); D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1478–80 (7th Cir. 1985)). However,
because the parties have not briefed the issue of whether state law or federal common law should apply in
this instance, the Court declines to definitively decide the issue at this time.
84 To the extent any part of Plaintiffs’ claims do not “arise under” federal law, the Court exercises
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 because the claims are “so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. §
1367.
83

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