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In re Allegheny Intern.

argued: January 8, 1990.

DENISE ZELLOUS, SANDRA FIELDS AND MADELINE BERNARD ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
BROADHEAD ASSOCIATES, BROADHEAD FORDING ASSOCIATES, THE ALLEGHENY MANAGEMENT COMPANY, MELVIN PUGATCH, THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, JACK F. KEMP, *FN* AND JOHN E. PISANO



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil Action No. 85-2526.

Gibbons, Chief Judge*fn**, Scirica, Circuit Judge, and Waldman, District Judge.**fn** Higginbotham, Chief Judge.***fn** {Q}Judges{/Q}Gibbons, Chief Judge*fn**, Scirica, Circuit Judge, and Waldman, District Judge.**fn** Higginbotham, Chief Judge.***fn**

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

The plaintiffs in this litigation are former, present, and prospective tenants of Westgate Village, a privately owned and managed housing project in Pittsburgh, whose rent is subsidized under section 8 of the United States Housing Act of 1937 ("Housing Act"), 42 U.S.C. § 1437f (1982 & Supp. V 1987) ("Section 8"). The tenants contend that the U.S. Department of Housing and Urban Development ("HUD") and its officials (collectively, the "federal defendants"), together with the housing project's owners and managers violated the Housing Act and associated federal regulations as well as the Administrative Procedure Act by failing to make timely adjustments in their utilities allowance. This caused the tenants to pay a higher share of their income as rent than is permitted under the Brooke Amendment, 42 U.S.C. § 1437a(a) (Supp. V 1987), which places a cap on the total of rent plus utilities for which tenants are responsible.

Opinion

Opinion OF THE COURT

SCIRICA, Circuit Judge.

The plaintiffs in this litigation are former, present, and prospective tenants of Westgate Village, a privately owned and managed housing project in Pittsburgh, whose rent is subsidized under section 8 of the United States Housing Act of 1937 ("Housing Act"), 42 U.S.C. § 1437f (1982 & Supp. V 1987) ("Section 8"). The tenants contend that the U.S. Department of Housing and Urban Development ("HUD") and its officials (collectively, the "federal defendants"), together with the housing project's owners and managers violated the Housing Act and associated federal regulations as well as the Administrative Procedure Act by failing to make timely adjustments in their utilities allowance. This caused the tenants to pay a higher share of their income as rent than is permitted under the Brooke Amendment, 42 U.S.C. § 1437a(a) (Supp. V 1987), which places a cap on the total of rent plus utilities for which tenants are responsible.

In their complaint, filed in October 1985, the tenants requested "declaratory, injunctive and monetary relief or in the alternative restitution." The tenants contended that the retrospective aspect of this relief should require HUD reimbursement for the rent they paid beyond that which would have been due if the utilities allowance had been set higher. By order of February 12, 1987 the district court granted the defendants' motion, made under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss all claims relating to the utilities allowance. The court concluded that although the tenants could maintain a private action to enforce their rights under the Brooke Amendment, their claims for injunctive and declaratory relief were moot because HUD had properly adjusted the utility rates in 1986. In addition, the court held that the tenants could not maintain a claim for monetary relief against the federal defendants because the tenants had failed to show a waiver of sovereign immunity. The tenants now appeal the dismissal of their claims against the federal defendants. We will reverse and remand.

I.

As a threshold matter, this Court must determine whether we have jurisdiction to decide the questions raised in this appeal. We hold that we do.*fn1 The federal defendants contend that the appeal lies in the Federal Circuit because the monetary claim, they argue, is based on federal statutes and contracts within the meaning of the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (1982) (district courts and Claims Court have concurrent jurisdiction of civil actions against United States not exceeding $10,000, founded upon Constitution, any Act of Congress or regulation, or upon express or implied contract with the United States).*fn2 The Federal Circuit has exclusive appellate jurisdiction when the jurisdiction of the district court is based in whole or in part on § 1346. 28 U.S.C. § 1295(a)(2) (1982); see Chabal v. Reagan, 822 F.2d 349, 354 (3d Cir. 1987) (claims under Little Tucker Act must be appealed to Federal Circuit).*fn3 Thus, to determine our own jurisdiction, we first must ascertain what was properly before the district court. Id. at 355.

The tenants have not invoked § 1346 and the district court dismissed the claim having concluded that the tenants had failed to show any waiver of sovereign immunity. In effect, the district court could find no basis upon which to exercise jurisdiction over the monetary claim. We express no opinion whether the tenants could have based a claim for damages on Section 8 and the Brooke Amendment for which the Tucker Act may grant a waiver of sovereign immunity. Nonetheless, the mere possibility that the district court could have asserted Tucker Act jurisdiction over a claim for money damages is not sufficient to divest this court of appellate jurisdiction in light of our holding, to which we now turn, that the tenants' monetary claim is for specific relief and thus § 702 of the Administrative Procedure Act, 5 U.S.C. § 702 (1988), provides a waiver of sovereign immunity for the entire action. Cf. Bowen v. Massachusetts, 487 U.S. 879, 108 S. Ct. 2722, 2740 & ...


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