                                                                         FILED
                                                             United States Court of Appeals
                                      PUBLISH                        Tenth Circuit

                      UNITED STATES COURT OF APPEALS             December 22, 2017

                                                                Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                  Clerk of Court
                         _________________________________

MODOC LASSEN INDIAN HOUSING
AUTHORITY, the tribally designated
housing entity for the Grindstone Indian
Rancheria of Wintun-Wailaki Indians of
California,

      Plaintiff - Appellee,

v.                                                    No. 14-1313

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

TLINGIT-HAIDA REGIONAL
HOUSING AUTHORITY,

      Plaintiff - Appellee,

v.                                                    No. 14-1331

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellants.



–––––––––––––––––––––––––––––––

CHOCTAW NATION OF OKLAHOMA;
HOUSING AUTHORITY OF THE
CHOCTAW NATION OF OKLAHOMA,

     Plaintiffs - Appellants,

v.                                             Nos. 14-1338 & 14-1340

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellees.

–––––––––––––––––––––––––––––––

NAVAJO HOUSING AUTHORITY,

     Plaintiff - Appellee,

v.                                                  No. 14-1343

UNITED STATES DEPARTMENT OF

                                           2
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing,
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs.

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

FORT PECK HOUSING AUTHORITY,

      Plaintiff - Appellee,

v.                                              No. 14-1407

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; JEMINE A. BRYON,
Acting Assistant Secretary for Public and
Indian Housing,

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

SICANGU WICOTI AWANYAKAPI
CORPORATION; OGLALA SIOUX
(LAKOTA) HOUSING; TURTLE
MOUNTAIN HOUSING AUTHORITY;
WINNEBAGO HOUSING AND
DEVELOPMENT COMMISSION;
LOWER BRULE HOUSING
AUTHORITY; SPIRIT LAKE HOUSING
CORPORATION; TRENTON INDIAN
HOUSING AUTHORITY,


                                            3
     Plaintiffs - Appellees,

v.                                             No. 14-1484

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellants.

–––––––––––––––––––––––––––––––

BLACKFEET HOUSING; THE ZUNI
TRIBE; ISLETA PUEBLO HOUSING
AUTHORITY; PUEBLO OF ACOMA
HOUSING AUTHORITY;
ASSOCIATION OF VILLAGE COUNCIL
PRESIDENTS REGIONAL HOUSING
AUTHORITY; NORTHWEST INUPIAT
HOUSING AUTHORITY; BRISTOL
BAY HOUSING AUTHORITY;
ALEUTIAN HOUSING AUTHORITY;
CHIPPEWA CREE HOUSING
AUTHORITY; BIG PINE PAIUTE
TRIBE,

     Plaintiffs - Appellees,

v.                                             No. 15-1060

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, Assistant Secretary for

                                           4
Public and Indian Housing; GLENDA
GREEN, HUD’s Office of Grants
Management, National Office of Native
American Programs, Department of
Housing and Urban Development, Office
of Public and Indian Housing,

        Defendants - Appellants.
                        _________________________________

                                      ORDER
                         _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

        These matters are before the court on the Petition for Rehearing or Rehearing En

Banc filed by Appellees in numbers 14-1407 and 15-1060 and the Petition for Rehearing

En Banc filed by Appellees in numbers 14-1313, 14-1331, 14-1338, 14-1340, and 14-

1484.

        Upon consideration and in light of the parties’ post-opinion factual stipulation that

HUD has already repaid the Tribes, the panel grants in part the request for panel

rehearing in numbers 14-1407 and 15-1060, but only to the extent of the modifications

contained in the attached revised Opinion. Judge Matheson would grant panel rehearing

in full on the sovereign immunity issue in numbers 14-1407 and 15-1060. The Opinion

and separate writings filed on July 25, 2017, are hereby withdrawn, and shall be replaced

by the attached revised Opinion and separate writings. The Clerk is directed to file the

revised Opinion and separate writings effective the date of this order.

        The revised Opinion and separate writings, the Petition for Rehearing or

Rehearing En Banc filed by Appellees in numbers 14-1407 and 15-1060, and the Petition

                                              5
for Rehearing En Banc filed by Appellees in numbers 14-1313, 14-1331, 14-1338, 14-

1340, and 14-1484 were circulated to all of the judges of the court who are in regular

active service. As no member of the panel and no judge in regular active service on the

court requested that the court be polled, the requests for en banc rehearing are denied

pursuant to Fed. R. App. P. 35.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




                                             6
                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  December 22, 2017

                                                                      Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                        Clerk of Court
                         _________________________________

MODOC LASSEN INDIAN HOUSING
AUTHORITY, the tribally designated
housing entity for the Grindstone Indian
Rancheria of Wintun-Wailaki Indians of
California,

      Plaintiff - Appellee,

v.                                                      No. 14-1313

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

TLINGIT-HAIDA REGIONAL
HOUSING AUTHORITY,

      Plaintiff - Appellee,

v.                                                      No. 14-1331

      
        In each appeal, we substitute Ben Carson, Secretary of Housing and Urban
Development, in place of his predecessor, Julian Castro. See Fed. R. App. P.
43(c)(2).
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellants.



–––––––––––––––––––––––––––––––

CHOCTAW NATION OF OKLAHOMA;
HOUSING AUTHORITY OF THE
CHOCTAW NATION OF OKLAHOMA,

     Plaintiffs - Appellants,

v.                                             Nos. 14-1338 & 14-1340

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellees.

–––––––––––––––––––––––––––––––

NAVAJO HOUSING AUTHORITY,



                                           2
      Plaintiff - Appellee,

v.                                              No. 14-1343

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing,
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs.

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

FORT PECK HOUSING AUTHORITY,

      Plaintiff - Appellee,

v.                                              No. 14-1407

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; JEMINE A. BRYON,
Acting Assistant Secretary for Public and
Indian Housing,

      Defendants - Appellants.

–––––––––––––––––––––––––––––––

SICANGU WICOTI AWANYAKAPI
CORPORATION; OGLALA SIOUX
(LAKOTA) HOUSING; TURTLE
MOUNTAIN HOUSING AUTHORITY;
WINNEBAGO HOUSING AND
DEVELOPMENT COMMISSION;


                                            3
LOWER BRULE HOUSING
AUTHORITY; SPIRIT LAKE HOUSING
CORPORATION; TRENTON INDIAN
HOUSING AUTHORITY,

     Plaintiffs - Appellees,

v.                                             No. 14-1484

UNITED STATES DEPARTMENT OF
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, General Deputy Assistant
Secretary for Public and Indian Housing;
GLENDA GREEN, Director, Office of
Grants Management, Office of Native
American Programs,

     Defendants - Appellants.

–––––––––––––––––––––––––––––––

BLACKFEET HOUSING; THE ZUNI
TRIBE; ISLETA PUEBLO HOUSING
AUTHORITY; PUEBLO OF ACOMA
HOUSING AUTHORITY;
ASSOCIATION OF VILLAGE COUNCIL
PRESIDENTS REGIONAL HOUSING
AUTHORITY; NORTHWEST INUPIAT
HOUSING AUTHORITY; BRISTOL
BAY HOUSING AUTHORITY;
ALEUTIAN HOUSING AUTHORITY;
CHIPPEWA CREE HOUSING
AUTHORITY; BIG PINE PAIUTE
TRIBE,

     Plaintiffs - Appellees,

v.                                             No. 15-1060

UNITED STATES DEPARTMENT OF


                                           4
HOUSING AND URBAN
DEVELOPMENT; BEN CARSON,
Secretary of Housing and Urban
Development; DEBORAH A.
HERNANDEZ, Assistant Secretary for
Public and Indian Housing; GLENDA
GREEN, HUD’s Office of Grants
Management, National Office of Native
American Programs, Department of
Housing and Urban Development, Office
of Public and Indian Housing,

      Defendants - Appellants.
                      _________________________________

                    Appeal from the United States District Court
                            for the District of Colorado
        (D.C. Nos. 05-CV-0018-RPM, 08-CV-0451-RPM, 08-CV-0826-RPM,
           08-CV-2573-RPM, 08-CV-2577-RPM, 08-CV-2584-RPM, and
                                 07-CV-1343-RPM)
                      _________________________________

Gerard Sinzdak, Attorney, Appellate Staff, United States Department of Justice, Civil
Division, Washington, D.C. (Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, John F. Walsh, United States Attorney, and Michael S. Raab, Attorney,
Appellate Staff, United States Department of Justice, Civil Division, Washington, D.C.,
with him on the briefs), for Defendants-Appellants.

Craig H. Kaufman, Quarles & Brady, LLP, Tucson, Arizona, Jonathan K. Tillinghast,
Simpson, Tillinghast, Sorensen & Sheehan, Juneau, Alaska, and John Fredericks, III,
Fredericks Peebles & Morgan LLP, Mandan, North Dakota (David J. Rapport, Rapport
and Marston Law Offices, Ukiah, California; Louis W. Bullock and Patricia Whittaker
Bullock, Bullock Law Firm, Tulsa, Oklahoma; J. Frank Wolf, III, Rabon Wolf & Rabon,
Hugo, Oklahoma; David V. Heisterkamp, II, Amber Leigh Hunter, and James F.
Wagenlander, Wagenlander & Heisterkamp, Denver, Colorado; Blain David Myhre,
Blain Myhre LLC, Englewood, Colorado; Peter J. Breuer, Fredericks Peebles & Morgan
LLP, Louisville, Colorado, with them on the brief), for Plaintiffs-Appellees.
                        _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.


                                           5
                        _________________________________

      These consolidated appeals arise from a government agency’s decision to

recapture, via administrative offset, funds that the agency allegedly overpaid to

multiple grant recipients. The grant recipients brought suit in federal court, arguing in

relevant part that the agency lacked authority to recapture the funds without first

providing them with administrative hearings. The district court agreed and ordered

the agency to repay the grant recipients. The agency now appeals that order.1

      If these underlying facts sound relatively straightforward, it’s because they

are. But they nevertheless give rise to three legal questions that are decidedly less so:

(1) did the agency recapture the funds pursuant to a statute or regulation that imposed

a hearing requirement, thus rendering the recaptures illegal; (2) if the agency didn’t

recapture the funds pursuant to such a statute or regulation, did it have authority to

recapture the alleged overpayments at all; and (3) if not, could the district court order

the agency to reimburse the grant recipients for the amounts it illegally collected?

      In answering the first of these three questions, the panel unanimously agrees

that the agency didn’t recapture the funds pursuant to a statute or regulation that

imposes a hearing requirement. Thus, we agree that the district court erred in ruling

that the recipients were entitled to hearings before the agency could recapture the

alleged overpayments.


      1
        In resolving the parties’ various arguments, the district court actually entered
several separate orders. For simplicity, we treat them as a single order and refer to
them as such.


                                            6
       But that’s where our unanimous agreement ends; the remaining questions

divide the panel. Ultimately, two members of the panel agree that the agency lacked

authority to recapture the funds via administrative offset. Accordingly, we affirm the

portion of the district court’s order that characterizes the recaptures as illegal.

Nevertheless, two other members of the panel agree that under the doctrine of

sovereign immunity, the district court lacked authority to order the agency to repay

the recipients to the extent the agency had already redistributed or otherwise

expended the recaptured funds. Thus, we reverse that portion of the district court’s

order and remand for further factual findings.

                                             I

       Congress enacted the Native American Housing Assistance and Self–

Determination Act (NAHASDA) of 1996, 25 U.S.C. §§ 4101-4243, to help Indian

tribes provide affordable housing for their members, see 25 U.S.C. § 4101(5). To that

end, the United States Department of Housing and Urban Development (HUD)

allocates NAHASDA grant funds among recipient tribes each year.

       In determining how to allocate those funds, HUD employs a regulatory

formula that takes into account each tribe’s Formula Current Assisted Stock

(FCAS)—a figure calculated by multiplying the number of eligible low-rent housing

units in that tribe’s possession by a fixed dollar amount. See 25 U.S.C. § 4152(a)(1);

24 C.F.R. §§ 1000.310(a), 1000.316. Critically, HUD relies on each tribe to provide

an accurate yearly count of its eligible housing units. See 24 C.F.R. §§ 1000.315(a),

1000.319(a). And because HUD allocates funds to all tribes from a finite yearly pool,


                                             7
see 25 U.S.C. § 4151, a tribe that erroneously reports an inflated number of eligible

housing units will not only receive an overpayment, but will necessarily reduce the

funds available to other eligible tribes. See Fort Belknap Hous. Dep’t v. Office of

Pub. & Indian Hous., 726 F.3d 1099, 1100 n.2 (9th Cir. 2013) (“Because the total

amount of money available to all tribes is fixed, [NAHASDA funding] is a zero-sum

game: Any change in one tribe’s allocation requires an offsetting change to other

tribes’ allocations.”).

       Appellees are various tribes (the Tribes) that allegedly inflated their eligible-

unit counts—and therefore allegedly received overpayments—during various years.2

When HUD discovered these alleged overpayments, it recouped the funds by

deducting them from the Tribes’ subsequent yearly NAHASDA allocations. The

Tribes then sued for the return of those funds.

       In relevant part, the Tribes argued that HUD lacked authority to recapture the

funds without first providing the Tribes with administrative hearings. The district

court agreed. As a result, the court ordered HUD to restore the recaptured funds to

the Tribes.3 HUD now appeals.


       2
         More specifically, the appellees are the Tribes’ housing authorities. For
purposes of these appeals, we treat each tribe and its housing authority as
interchangeable.
       3
         Although neither the Tribes nor HUD assert as much in their initial briefs,
they both maintain in post-opinion briefing that HUD has already complied with this
order by repaying the Tribes. But even in their post-opinion briefing, neither the
Tribes nor HUD provide us with any citations to the record that might support this
factual assertion. True, the Tribes provide record citations that demonstrate the
district court ordered HUD to repay the Tribes. But none of those citations


                                            8
                                            II

      Because these appeals arise under the Administrative Procedure Act (APA), 5

U.S.C. §§ 701-706, “[w]e take ‘an independent review of [HUD’s] action’ and are

not bound by the district court’s factual findings or legal conclusions.” Utah Envtl.

Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th Cir. 2006) (quoting Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1569 n.16 (10th Cir. 1994)). We will “set

aside agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)).

      On appeal, HUD advances three challenges to the district court’s ruling that

HUD acted illegally by recapturing the funds without conducting administrative

hearings. First, HUD asserts that it wasn’t required to hold hearings before it

recaptured the funds because the only statutes and regulations that might require

hearings don’t apply here. Second, HUD insists that in the absence of an applicable

demonstrate that HUD actually complied with the court’s order. See Fed. R. App. P.
28(a)(8)(A) (requiring argument section of appellant’s brief to contain “appellant’s
contentions and the reasons for them, with citations to the . . . parts of the record on
which the appellant relies”); Fed. R. App. P. 28(b) (requiring appellee’s brief to
“conform to the requirements of” Fed. R. App. P. 28(a)(8)).

       Nevertheless, despite the parties’ failure to comply with Rule 28’s
requirements, we accept their joint factual stipulation on this point. Cf. Creative
Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1078 n.3 (10th Cir. 2009)
(noting that “we will honor stipulations to evidentiary facts”). Finally, we note that
neither party suggests this procedural fact calls into question HUD’s ability to appeal
the district court’s order. On the contrary, HUD asserts in post-petition briefing that
it specifically informed the Tribes that it was reserving its right to appeal despite its
compliance with the district court’s order. And although HUD doesn’t provide a
record citation to support this factual assertion, the Tribes have never suggested that
HUD’s compliance with the district court’s order implicates its right to appeal.


                                            9
statute or regulation, it was instead empowered to recapture the alleged overpayments

via administrative offset under the common-law doctrine of payment by mistake.

Third, HUD states that even if it lacked common-law authority to recapture the

alleged overpayments via administrative offset, the district court nevertheless erred in

ordering HUD to return the alleged overpayments to the Tribes because—with one

exception—such an order amounts to an award of “money damages” and therefore

runs afoul of 5 U.S.C. § 702.4

                                           A

      In concluding that the Tribes were entitled to hearings before HUD could

recapture the alleged overpayments, the district court relied on the relevant versions

of 24 C.F.R. § 1000.532 and 25 U.S.C. § 4161(a)(1). HUD doesn’t dispute that these

provisions required it to provide administrative hearings under certain circumstances.

Instead, HUD argues that those circumstances simply aren’t present here. For the

reasons discussed below, we agree. And because these provisions therefore don’t

apply to HUD’s recapture of the alleged overpayments, neither do their hearing

requirements.

                                           i



      4
         HUD also argues that it didn’t act arbitrarily and capriciously in concluding
that the Tribes misreported the number of eligible housing units in their possession.
But even assuming HUD is correct on this point, we conclude that HUD nevertheless
lacked authority to recapture the alleged overpayments. Accordingly, we need not
address this argument.




                                          10
       Under 24 C.F.R. § 1000.532 (1998), HUD had authority to “make appropriate

adjustments in the amount of the annual grants under NAHASDA in accordance with

. . . findings” that HUD made “pursuant to reviews and audits under [25 U.S.C. §

4165].” 24 C.F.R. § 1000.532(a) (1998). But before doing so, HUD had to first

provide “a hearing in accordance with [24 C.F.R.] § 1000.540.”5 24 C.F.R.

§ 1000.532(b) (1998). Thus, the threshold question before us is whether HUD

recaptured the alleged overpayments based on findings it made “pursuant to reviews

and audits under [§ 4165]”; if so, then the Tribes were entitled to “a hearing in

accordance with [24 C.F.R.] § 1000.540.” 24 C.F.R. § 1000.532(a), (b) (1998).

       The relevant versions of § 4165 required HUD to undertake “such reviews and

audits as may be necessary or appropriate” to make three specific determinations: (1)

whether each tribe “carried out its eligible activities in a timely manner, . . . carried

out its eligible activities and certifications in accordance with the requirements and

the primary objectives of this chapter and with other applicable laws, and has a

continuing capacity to carry out those activities in a timely manner”; (2) whether

each tribe “complied with [its] Indian housing plan”; and (3) whether each tribe’s

“performance reports . . . [were] accurate.” § 4165(a) (1998); see § 4165(b) (2006).




       5
         More specifically, a “recipient [could] request . . . a hearing in accordance
with § 1000.540” if the dispute was “not resolved” via an “informal meeting.” 24
C.F.R. § 1000.532(b) (1998). Because neither party suggests that the matter of the
alleged overpayments was “resolved” via an “informal meeting” or that the Tribes
didn’t request hearings, id., we don’t address those possibilities.


                                            11
       Both the Ninth Circuit and the Court of Federal Claims have held that when

HUD reviews a tribe’s report of its eligible housing stock, that review falls within the

scope of the first of these three categories, i.e., within HUD’s authority to review a

tribe’s activities and certifications. See Crow Tribal Hous. Auth. v. Dep’t of Hous. &

Urban Dev., 781 F.3d 1095, 1103 (9th Cir. 2015) (“[W]e conclude HUD’s . . . FCAS

review constituted an audit within the meaning of § 4165 to determine whether the

Tribe had carried out ‘eligible activities and certification in accordance with this

chapter and other applicable law.’” (quoting § 4165(b)(1)(A)(i)(II))); Lummi Tribe of

Lummi Reservation v. United States, 106 Fed. Cl. 623, 630 (2012) (“Such a review,

we believe, comes within [§ 4165’s] broad mandate to ensure that the grant program

is being conducted in accordance with NAHASDA.” (citing § 4165(b)(1)(A)(i)(II))).

       But as HUD points out, Crow doesn’t acknowledge that “eligible activities”

and “certifications” are defined terms—let alone discuss whether, as defined, those

terms encompass a tribe’s report of its eligible housing stock. Instead, in concluding

that HUD’s review of a tribe’s reported eligible housing units constitutes a review or

audit for purposes of § 4165, Crow explicitly states that (1) “NAHASDA does not

define ‘eligible activities and certification,’” and (2) “it is ambiguous whether the

term encompasses” such reviews. 781 F.3d at 1103 (quoting § 4165(b)(1)(A)(i)(II)).

Crow then resolves this alleged ambiguity by applying the Indian canon, which states

that “[s]tatutes are to be construed liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit.” Id. (alteration in original) (quoting Cty. of

Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269


                                            12
(1992)). Likewise, Lummi concludes that HUD’s review of a tribe’s eligible housing

units falls within HUD’s authority to determine whether that tribe has carried out

eligible activities without ever addressing what those eligible activities might be. See

106 Fed. Cl. at 630.

      We decline to take this approach. Instead, we agree with HUD that the

applicable statutes unambiguously establish that the terms “eligible activities” and

“certifications” don’t encompass a tribe’s report on its eligible housing units. See 25

U.S.C. § 4132 (1998) (explaining that eligible housing activities include housing

assistance, development, housing services, housing management services, crime

prevention, safety activities, and model activities); id. § 4112(c)(5) (listing

certifications); id. § 4114(b)(1) (requiring certification regarding labor standards); id.

§ 4115(c) (requiring environmental certification).

      We see nothing in these statutes pertaining to a tribe’s report of its eligible

housing units. And because these statutes therefore unambiguously resolve this issue,

we see no need to apply the Indian canon. Accordingly, we part ways with both the

Ninth Circuit and the Court of Federal Claims to the extent those courts have held

that when HUD reviews a tribe’s report of its eligible housing stock, that review falls

within the scope of HUD’s authority to review or audit a tribe’s activities and

certifications. See § 4165(a)(1) (1998); § 4165(b)(1)(A)(i)(II) (2006).

      For similar reasons, we reject the Court of Federal Claims’ conclusion that

HUD’s review of a tribe’s report on its eligible housing units falls within the second

and third categories of HUD’s § 4165 authority, i.e., within HUD’s authority to


                                            13
review or audit a tribe’s Indian housing plan or its performance reports. See

§ 4165(a)(2), (3) (1998); § 4165(b)(1)(A)(iii), (B) (2006); see also Lummi, 106 Fed.

Cl. at 630 (reading § 4165 “as conferring broad authority on the Secretary to review a

grant recipient’s performance under NAHASDA, including monitoring a grant

recipient’s compliance with its Indian housing plan and verifying the accuracy of the

recipient’s performance reports”). Again, nothing in the relevant statutes suggests

that either a tribe’s Indian housing plan or its performance reports must (or even

may) include information about the number of eligible housing units in that tribe’s

possession. See § 4112 (1998) (discussing Indian housing plans); 25 U.S.C. § 4164

(1998) (discussing performance reports). Instead, “[t]he Formula Response Form is

the only mechanism that a recipient shall use to report changes to the number of

FCAS.” 24 C.F.R. § 1000.315(b).

      In short, reviewing a tribe’s report on its eligible housing units doesn’t fall

within any of § 4165’s three defined categories of audit-and-review authority.

Accordingly, HUD didn’t recapture the alleged overpayments at issue here based on

findings HUD made “pursuant to reviews and audits under [§ 4165].”6 24 C.F.R. §



      6
        Because we conclude that neither § 4165 (1998) nor 24 C.F.R. § 1000.532
(1998) applies to HUD’s recapture of the funds, we reject the Tribes’ argument that
those provisions operated to bar HUD from recapturing the funds at all—with or
without a hearing—unless HUD first demonstrated that the Tribes hadn’t already
spent those funds on affordable housing activities. See, e.g., § 4165(c) (1998)
(allowing HUD to “adjust, reduce, or withdraw grant amounts, or take other action as
appropriate in accordance with the reviews and audits . . . under this section, except
that grant amounts already expended on affordable housing activities may not be


                                           14
1000.532(a) (1998). And that means HUD was under no obligation to afford any of

the Tribes “a hearing in accordance with [24 C.F.R.] § 1000.540” under 24 C.F.R.

§ 1000.532(b) (1998).

                                           ii

      Alternatively, the Tribes argue that even if they weren’t entitled to hearings

under 24 C.F.R. § 1000.532(b) (1998), they were nevertheless entitled to hearings

under § 4161 (1998). For two reasons, we again disagree.

                                           a

      In relevant part, § 4161 (1998) provides,

      [I]f the Secretary finds after reasonable notice and opportunity for
      hearing that a recipient of assistance under this chapter has failed to
      comply substantially with any provision of this chapter, the Secretary
      shall—
          (1) terminate payments under this chapter to the recipient;
          (2) reduce payments under this chapter to the recipient by an amount
          equal to the amount of such payments that were not expended in
          accordance with this chapter;
          (3) limit the availability of payments under this chapter to programs,
          projects, or activities not affected by such failure to comply; or
          (4) in the case of noncompliance described in section 4162(b) of this
          title, provide a replacement tribally designated housing entity for the
          recipient, under section 4162 of this title.

§ 4161(a) (1998).

      According to the Tribes, § 4161(a) (1998)’s hearing requirement applies here

because HUD “reduce[d]” the Tribes’ NAHASDA payments under § 4161(a)(2)

(1998). But § 4161(a)(2) (1998) only applies when HUD “reduce[s] payments” to a

recaptured or deducted from future assistance provided on behalf of an Indian
tribe.”); 24 C.F.R. § 1000.532(a) (1998) (same).


                                          15
tribe “by an amount equal to the amount of such payments that were not expended in

accordance with” NAHASDA. § 4161(a)(2) (1998) (emphasis added). And as HUD

notes, it has never suggested or alleged that the Tribes “expended” the alleged

overpayments in such a manner. Id. Instead, HUD alleged only that the Tribes’

wrongly received the alleged overpayments.

       Relying on City of Boston v. Department of Housing and Urban Development,

898 F.2d 828 (1st Cir. 1990), the Tribes characterize HUD’s emphasis on §

4161(a)(2) (1998)’s use of the term “expended” as “hyper-technical,” Aplee. Br. 31

(quoting Boston, 898 F.2d at 832).

       In Boston, the statute at issue required HUD to provide a hearing before it

“terminate[d] . . . payments” to the grant recipient. 898 F.2d at 831. And HUD argued

that because the grant recipient hadn’t yet “received any funds . . . there was no

‘termination’ of ‘payments.’” Id. The First Circuit rejected this “hyper-technical”

interpretation of the statute. Id. at 832. But in doing so, it relied on other language in

the statute at issue—language that suggested Congress was concerned with

“withhold[ing] relevant funding whenever a recipient . . . failed to comply with the

controlling law,” regardless of “[w]hether the promised payments ha[d] or ha[d] not

begun.” Id. Here, the Tribes point to no similar language that suggests Congress, in

drafting § 4161, was concerned with money that the Tribes wrongfully received, as

opposed to money they wrongfully expended. Accordingly, the Tribes’ reliance on

Boston is misplaced.




                                            16
      So too is their reliance on Kansas City v. Department of Housing and Urban

Development, 861 F.2d 739 (D.C. Cir. 1988). The Tribes assert that, in Kansas City,

the court treated as applicable a statute that allowed HUD to “reduce [grant]

payments to the recipient . . . by an amount equal to the amount of such payments

which were not expended” properly, 861 F.2d at 740 (emphasis added) (quoting 42

U.S.C. § 5311 (1982))—even though “[t]here was no allegation of unlawful

expenditure[s],” Aplee. Br. 31.

      But it doesn’t appear that either the parties or the court in Kansas City

addressed any possible distinction between expending funds and receiving them. In

fact, the Tribes acknowledge as much in arguing that Kansas City “implicitly”

resolves this issue. Aplee. Br. 30. “Questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507,

511 (1925). Thus, we decline to rely on Kansas City’s “implicit[]” answer to the

question of § 4161’s applicability. Aplee. Br. 30.

      Instead, we adopt the Ninth Circuit’s explicit answer to this precise question.

When HUD alleges only that a tribe incorrectly received funding—but makes “no

determination on whether any NAHASDA funds [were] improperly expended”—

HUD doesn’t “act under § 4161, and, accordingly,” isn’t subject to § 4161’s hearing

requirement. Crow Tribal Hous. Auth., 781 F.3d at 1102 & n.5 (emphasis added); cf.

Fort Belknap Hous. Dep’t, 726 F.3d at 1106 (holding that § 4161 wasn’t implicated

where HUD alleged only that tribe wrongly received funding for ineligible housing


                                          17
units, not that tribe expended those funds in manner that wasn’t “in accordance with”

NAHASDA (quoting § 4161(a)(1)(B))). And because HUD has never challenged the

Tribes expenditures of the alleged overpayments, we agree with HUD that the Tribes

weren’t entitled to hearings under § 4161 (1998).

                                            b

      Alternatively, even if we agreed with the Tribes that there exists no

meaningful distinction between receiving funds and expending them, we would

nevertheless conclude that § 4161 (1998) doesn’t apply to HUD’s recapture of the

alleged overpayments.

      In relevant part, § 4161 (1998) provides, “[I]f the Secretary finds after

reasonable notice and opportunity for hearing that a recipient of assistance under this

chapter has failed to comply substantially with any provision of this chapter, the

Secretary shall,” e.g., “reduce payments . . . to the recipient.” § 4161(a)(2) (1998)

(emphasis added). According to HUD, it has never suggested that the Tribes’ alleged

inflation of their eligible housing units constitutes substantial noncompliance. Thus,

HUD concludes, § 4161 doesn’t apply. Cf. Fort Belknap Hous. Dep’t, 726 F.3d at

1104 (holding that applicable version of § 4161 didn’t apply where “HUD neither

alleged nor found” substantial noncompliance).

      To support this argument, HUD points out that Congress amended § 4161 in

2008 to clarify that a recipient’s failure “to comply with the requirements . . .

regarding the reporting of low-income dwelling units shall not, in itself, be

considered to be substantial noncompliance.” Pub. L. No. 110–411, § 4161(2), 122


                                           18
Stat 4319. HUD asserts that this amendment amounts to a clarification rather than a

substantive change. Thus, HUD concludes, the amendment applies retrospectively to

HUD’s pre-2008 recaptures of the alleged overpayments. See Dobbs v. Anthem Blue

Cross & Blue Shield (Dobbs II), 600 F.3d 1275, 1282 (10th Cir. 2010) (“[A] true

clarification applies retrospectively.”).

       In determining whether the 2008 amendment applies retrospectively, we begin

by asking whether “Congress has expressly prescribed the proper reach” of that

amendment. Id. To that end, HUD points out that a Senate Report subtitle explicitly

refers to the 2008 amendment as a “[c]larification.” S. Rep. No. 110-238, at 10

(2007).

       By “us[ing] . . . the term ‘clarification’” in the 2008 amendment’s legislative

history, Congress unambiguously expressed “an intent that the amendment apply

retrospectively.” Dobbs II, 600 F.3d at 1282; see Dobbs v. Anthem Blue Cross & Blue

Shield (Dobbs I), 475 F.3d 1176, 1178 (10th Cir. 2007) (remanding to district court

to apply amended statutory language where “amendment’s legislative history

suggest[ed] that Congress expanded [relevant] definition to clarify . . . legal

ambiguity”); cf. Andrus v. Allard, 444 U.S. 51, 59 n.10 (1979) (accepting Senate

Report’s indication that amendment constituted “a clarification rather than a

substantive change in the reach of the law”); Danielson v. Flores (In re Flores), 735

F.3d 855, 860-61 (9th Cir. 2013) (relying on title of House Report to interpret

ambiguous statute).




                                            19
      In fact, as HUD points out, the Ninth Circuit has already relied on the

language of this same Senate Report to conclude that (1) “the 2008 amendment was a

clarification, not a substantive change to” § 4161, and (2) the amendment therefore

applies retrospectively. Crow, 781 F.3d at 1101. We agree with the Ninth Circuit on

this point, and we conclude that the Tribes’ failure to accurately report their eligible

housing units, standing alone, doesn’t constitute substantial noncompliance. See

§ 4161(a)(2) (2009) (“The failure of a recipient to comply with the requirements of

[25 U.S.C. § 4152(b)(1)] regarding the reporting of low-income dwelling units shall

not, in itself, be considered to be substantial noncompliance for purposes of this

subchapter.”).

      Because we see no indication that HUD ever suspected or alleged substantial

noncompliance on the part of the Tribes, we conclude that HUD didn’t act pursuant

to § 4161 (1998)—and therefore wasn’t subject to § 4161 (1998)’s hearing

requirement—when it recouped the alleged overpayments. See Crow, 781 F.3d at

1101-02 (holding that HUD didn’t “act under § 4161, and, accordingly, could not

have violated a hearing requirement under that section,” when HUD never alleged

substantial noncompliance).

                                            B

      For the reasons discussed above, we agree with HUD that it didn’t act under

§ 4161 (1998) or 24 C.F.R. § 1000.532 (1998) when it recaptured the funds. But this

conclusion is a double-edged sword. True, it resolves one question in HUD’s favor: it

means the district court erred in ruling that HUD was required to provide hearings


                                           20
before recouping the funds. But it raises a second, more fundamental question: in the

absence of an applicable statute or regulation, what gave HUD the authority to

recoup the funds at all? See Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1569

(Fed. Cir. 1993) (explaining that federal agencies are “creature[s] of statute”); see

also Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001) (“[I]f there is no statute

conferring authority, a federal agency has none.”).

      In attempting to answer that question, HUD asserts that rather than proceeding

under a statute, it recaptured the funds by using “its longstanding, common-law

authority to recover payments made by mistake.” Aplt. Br. 27. As support for this

argument, HUD cites six cases.7 None of them apply here.

      Of the six cases that HUD cites, only the Ninth Circuit’s decision in Fort

Belknap even arguably addresses whether a government agency administering a grant

program can rely on this common-law right to unilaterally recover overpayments

from a beneficiary. And the Ninth Circuit itself has since characterized this portion of

Fort Belknap as dicta. See Crow Tribal Hous. Auth., 781 F.3d at 1105 n. 9. We agree.

The question in Fort Belknap wasn’t whether HUD had common-law authority to

recoup NAHASDA overpayments. Instead, the “narrow issue resolved in Fort

Belknap was whether [the Ninth Circuit] had jurisdiction to consider the tribe’s direct

appeal.” Id. at 1104. And that question turned solely on whether HUD acted under

      7
         HUD cites additional cases in its reply brief. But like the cases that HUD
cites in its opening brief, these additional cases simply don’t address or implicate the
specific factual scenario we face here.




                                           21
§ 4161(a)—not on whether HUD had authority to act pursuant to some common-law

right. See Fort Belknap, 726 F.3d at 1100.

      The next three cases that HUD cites are likewise unhelpful. They stand only

for the limited proposition that the government has a right, even in the absence of

express statutory authority, to sue to collect overpayments. See United States v.

Wurts, 303 U.S. 414, 416 (1938) (citing “[g]overnment’s long-established right to sue

for money wrongfully or erroneously paid from the public treasury”);8 United States

v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 15-16 (1st Cir. 2005) (noting “government’s

right to sue” to “recover monies wrongly paid from the Treasury, even absent any

express statutory authorization”); LTV Educ. Sys., Inc. v. Bell, 862 F.2d 1168, 1169-

70, 1175 (5th Cir. 1989) (citing government’s authority to “recover money it

mistakenly, erroneously, or illegally paid” where Department of Education sued

based on alleged violation of federal regulation). Because HUD opted instead to

unilaterally recoup the overpayments, rather than to sue for their return, these cases

are inapposite.

      That leaves only United States v. Munsey Trust Co., 332 U.S. 234, 236 (1947),

and Grand Trunk Western Railway Co. v. United States, 252 U.S. 112, 117 (1920).



      8
        Judge Bacharach asserts that “five federal appellate courts have interpreted
Wurts to allow offset without the need for suit.” Op. of Bacharach, J., 4 & n.2. But
none of the cases he cites address whether the federal government enjoys common-
law authority to recoup funds via administrative offset in the context of a grant
program. And for reasons we discuss below, that distinction makes a difference.




                                           22
       At first glance, Grand Trunk appears to support HUD’s assertion that it enjoys

common-law authority to recover overpayments via administrative offset. There, the

Court held that the Postmaster General “was under no obligation to establish the

[alleged overpayment] by suit.” 252 U.S. at 120-21. Instead, “[h]aving satisfied

himself” of the alleged overpayment, “he was at liberty to deduct the amount of the

overpayment from the moneys otherwise payable to the company to which the

overpayment had been made.” Id.

       But in Grand Trunk, the government didn’t mistakenly overpay the beneficiary

of a grant and then withhold the amount of the overpayment from that beneficiary’s

future-year grant funds, as HUD did here. Instead, the overpayments in Grand Trunk

arose in the context of a contractual relationship between the government and the

plaintiff: the government entered into a series of “successive quadrennial contracts”

under which “the mails were carried over” a certain stretch of the plaintiff’s railroad.

Id. at 117, 121. And when the Postmaster General realized that the government had

previously overpaid the plaintiff for its use of that stretch of its track, he simply

“deduct[ed] the amount of the overpayment” from the amount the government owed

“under the current contract.” Id. The plaintiff sued, the Court of Claims dismissed,

and the Supreme Court affirmed. Id. at 117.

       Properly limited to its facts, Grand Trunk establishes that when the

government enters into a series of contracts with a private party, it can deduct any

amount it erroneously overpays that private party “by means of a later debit” to the

parties’ “running accounts.” Id. at 121. But this appeal doesn’t arise from a


                                            23
contractual relationship. Instead, it arises from a grant program designed to help the

Tribes and their members “improve their housing conditions and socioeconomic

status.” 25 U.S.C. § 4101(5). And Congress explicitly acknowledged in enacting that

grant program that “the United States has undertaken a unique trust responsibility to

protect and support Indian tribes and Indian people.” § 4101(3).

      That unique relationship sets this case apart from both Grand Trunk and

Munsey Trust, which also arose from a series of contracts. See Munsey Tr., 332 U.S.

at 236-39; Richard B. Cappalli, Federal Grants and Cooperative Agreements: Law,

Policy, and Practice § 8:15, at 81 (1991 Cum. Supp.) (explaining that “traditional

contract principles are inapropos to an understanding of assistance rights and

responsibilities” in context of grant funding); cf. Md. Dep’t of Human Res. v. Dep’t of

Health & Human Servs., 762 F.2d 406, 409 (4th Cir. 1985) (rejecting argument that

court should apply “contractual principles” to federal grant program, and explaining

that grant programs are instead “governed by the applicable statute[s] and

implementing regulations”).

      As these authorities suggest, the rules that traditionally govern contractual

relationships don’t necessarily apply in the context of federal grant programs. See,

e.g., Cappalli, § 8:15, at 80-81 (distinguishing between contracts and grants;

explaining that grantor rights—including right to recapture funds—“must emanate

explicitly or implicitly from the grant statutes, regulations duly enacted and

consistent with the statute being implemented, or provisions in the grant agreement”;

and noting that it’s “unfair to subject the grantee to unannounced and undefined


                                           24
sanctions and remedies” in absence of such provisions). Based on the government’s

“unique trust responsibility to protect and support Indian tribes and Indian people,”

§ 4101(3), we think it would be particularly “unfair,” Cappalli, § 8:15, at 80, to apply

common-law contract principles to HUD’s recapture of NAHASDA funds. Thus,

neither Grand Trunk nor Munsey Trust can support the weight of HUD’s common-

law-authority argument.

      Accordingly, we hold that the district court properly rejected HUD’s common-

law-authority argument. And because HUD hasn’t advanced on appeal any

alternative basis for its authority to recapture the funds via administrative offset,9 we


      9
        Judge Bacharach suggests that if HUD doesn’t enjoy common-law authority
to recoup the overpayments by administrative offset, this leaves “a gap in
NAHASDA” that HUD necessarily enjoys implicit “authority to fill.” Op. of
Bacharach, J., 8-9. But HUD has never advanced such an implicit-authority
argument—either below or on appeal. Thus, it has waived reliance on any implied-
authority theory as a basis for reversal. See Bronson v. Swensen, 500 F.3d 1099,
1104-05 (10th Cir. 2007) (finding waived and declining to address argument that
appellant failed to “adequately raise and pursue” in opening brief); see also Greenlaw
v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters the
parties present.” (emphasis added)).

        In any event, even assuming it would be appropriate for us to sua sponte reach
this issue, the cases that Judge Bacharach cites in support of his implicit-authority
theory indicate only that HUD enjoys authority to fill gaps in NAHASDA by
promulgating rules and regulations. See id. at 9; Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (“If Congress has explicitly left a
gap for the agency to fill, there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation.” (emphasis added));
Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to
administer a congressionally created and funded program necessarily requires the
formulation of policy and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.” (emphasis added)); Morrow v. Clayton, 326 F.2d 36, 45


                                           25
therefore affirm the district court’s ruling that HUD acted illegally by recapturing the

alleged overpayments.

                                           C

      But this victory for the Tribes is largely a hollow one. That’s because HUD

enjoys sovereign immunity from claims for money damages. See Utah ex rel. Utah

Dep’t of Envtl. Quality v. EPA, 765 F.3d 1257, 1260 (10th Cir. 2014) (explaining that

suits against federal agencies are barred by sovereign immunity absent a specific

waiver of that immunity); see also 5 U.S.C. § 702 (waiving sovereign immunity for

(10th Cir. 1963) (“We think the promulgation of the regulation by the Secretary was
a lawful exercise of the power and authority vested in him [by statute] to administer
the program . . . .” (emphasis added)). Yet Judge Bacharach doesn’t identify a rule or
regulation that would allow HUD to recoup overpayments by administrative offset.
Neither does HUD. Thus, even assuming that “Congress implicitly delegated to HUD
the authority to fill [NAHASDA’s] statutory gap” by promulgating such a regulation,
Op. of Bacharach, J., 10, it doesn’t appear that HUD exercised that implicit authority
here. Accordingly, even if it were appropriate for us to raise this theory sua sponte,
see Greenlaw, 554 U.S. at 243, it wouldn’t provide a basis for reversal.

        As a final matter, Judge Bacharach suggests that the Tribes have somehow
waived any argument that such rules or regulations don’t exist. See Op. of Bacharach,
J., 11 (“[T]he [T]ribes have not questioned the sufficiency of HUD’s implementing
regulations.”); id. at 11 n.5 (“The [T]ribes have argued only that HUD lacked
statutory authority, not that HUD failed to properly implement that authority by
adopting regulations.”). But as the appellant, HUD must identify a valid basis for
reversing the district court’s rulings. See Nixon v. City & Cty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why
the district court’s decision was wrong.”). As appellees, on the other hand, the Tribes
have no obligation to attempt to refute a potential basis for reversal that HUD has
never advanced. See Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10th Cir.
1994) (“In preparing briefs and arguments, an appellee is entitled to rely on the
content of an appellant’s brief for the scope of the issues appealed . . . .” (quoting
Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983))).
Contrary to Judge Bacharach’s suggestion, therefore, the Tribes simply cannot waive
a response to an argument that HUD doesn’t make.


                                          26
claims against agencies, but only for suits “seeking relief other than money damages”

(emphasis added)). And at least some of the district court’s orders directing HUD to

repay the Tribes appear to award money damages.

      The crux of the Tribes’ claims is this: HUD wrongfully decreased their

NAHASDA funding in various years by subtracting (1) the amount of any alleged

overpayments the Tribes received in previous years from (2) the amounts to which

the Tribes would have otherwise been entitled in subsequent years. For instance,

HUD concluded that the Choctaw received overpayments in 1998, 1999, 2000, and

2001. HUD then deducted those alleged overpayments from the NAHASDA funding

that the Choctaw otherwise would have received in 2003, 2004, and 2005. Thus, what

the Choctaw sought was return of the 2003, 2004, and 2005 funding that HUD

wrongfully withheld.

      But the district court didn’t order HUD to repay the Tribes until many years

after HUD recaptured the alleged overpayments. For instance, the court didn’t order

HUD to repay the Choctaw until 2014—approximately a decade after HUD withheld

the relevant funds. And perhaps because it recognized the distinct possibility that

HUD had long since distributed all of the funds from Congress’ 2003, 2004, and

2005 NAHASDA appropriations, the court ordered HUD to repay the Choctaw “from

all available sources,” including (1) funds that were “carried[] forward from previous

fiscal years” and (2) funds that were “appropriated in future grant years.” App. vol.

12, 2463.




                                          27
      Citing this aspect of the district court’s order, HUD asserts that the court

awarded the Tribes money damages in violation of § 702. We agree.10

      The phrase “money damages” “refers to a sum of money used as compensatory

relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas

specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff

the very thing to which he was entitled.’” Dep’t of Army v. Blue Fox, Inc., 525 U.S.

255, 262 (1999) (quoting Bowen v. Massachusetts, 487 U.S. 879, 895 (1988)).

      Here, the district court awarded the Tribes money damages when it ordered

HUD to compensate them using funds from grant years other than the grant years

during which HUD wrongfully collected the alleged overpayments. For instance, the

“very thing” to which the Choctaw said it was entitled was additional funding from

Congress’ 2003, 2004, and 2005 NAHASDA appropriations. Blue Fox, Inc., 525 U.S.

at 262 (quoting Bowen, 487 U.S. at 895). But to the extent that HUD had already

distributed the funds from those yearly appropriations to other tribes, HUD couldn’t

have possibly returned those funds to the Tribes. Thus, the district court instead

ordered HUD to pay the Tribes by “substitut[ing]” other funds for the funds to which




      10
         The district court previously ordered HUD to set aside a portion of the 2008
NAHASDA appropriation for the purpose of repaying the Tribes. To the extent that
(1) any of the Tribes allege that HUD wrongfully withheld 2008 NAHASDA grant
funds, and (2) the 2008 funds that HUD set aside were sufficient to cover those
Tribes’ 2008 losses, this sovereign-immunity analysis doesn’t apply. For instance,
HUD concedes that the district court’s order directing HUD to repay the Navajo
doesn’t constitute an award of money damages.


                                           28
the Tribes were actually entitled—i.e., funds from past- or future-year NAHASDA

appropriations. Id. (emphasis omitted) (quoting Bowen, 487 U.S. at 895).

       This distinction may seem pedantic. After all, money is money. And surely the

Tribes don’t care whether HUD repaid them using funds that remained from 2003’s

NAHASDA appropriation, or if it instead repaid them from some other source. But

“the fungibility [of] money” can easily “obscure[]” the difference between (1) “relief

that seeks to compensate a plaintiff for a harm by providing a substitute for the loss,”

Cty. of Suffolk v. Sebelius, 605 F.3d 135, 141 (2d Cir. 2010) (emphases omitted), and

(2) “relief that requires a defendant to transfer a specific res to the plaintiff,” id.

       To understand how that distinction operates to preclude relief here, assume for

a moment that instead of withholding funds for affordable housing from a particular

tribe, HUD instead wrongfully withheld from that tribe an actual house—a house that

HUD then gave to another eligible tribe.

       Because that specific house is no longer in HUD’s possession, the district

court can’t order HUD to turn it over to the tribe that should have originally received

it. Instead, the best the district court can do is order HUD to give that tribe the

house’s monetary equivalent. And that monetary equivalent amounts to substitute

relief—i.e., money damages. See Blue Fox, Inc., 525 U.S. at 262; cf. Clymore v.

United States, 415 F.3d 1113, 1118, 1120 (10th Cir. 2005) (remanding for findings

regarding whether government still had in its possession the “four items seized from

[plaintiff] at the time of his arrest”; “to the extent the government [was] no longer in




                                             29
possession of” plaintiff’s property and plaintiff thus instead sought “monetary relief,

sovereign immunity bar[red] his claim”).

      If sovereign immunity would bar the district court from ordering HUD to

provide the tribe in this hypothetical scenario with “the cash equivalent” of the

wrongfully withheld house, it likewise barred the district court from ordering HUD to

provide the Tribes with the “cash equivalent” of the wrongfully withheld

overpayments. Diaz v. United States, 517 F.3d 608, 611 (2d Cir. 2008); cf. id. at 612-

13 (holding that doctrine of sovereign immunity precluded court from ordering

government to pay “monetary equivalent” of seized currency, which could “no longer

be identified or located in the coffers of the government”; reasoning that “currency

should be treated like any other seized property: if the property is no longer

available, sovereign immunity bars the claimant from seeking compensation”).

      And this rationale—i.e., the idea that courts should treat money like any other

form of property for sovereign-immunity purposes—explains why two of our sister

circuits have found the distinction between original funds and substitute funds

dispositive in cases involving yearly grant appropriations. See Suffolk, 605 F.3d at

141 (explaining that because the “res at issue is identified by reference to the

congressional appropriation that authorized the agency’s challenged expenditure,” a

claim seeking funds from any other source “seek[s] compensation rather than the

specific property the plaintiff aims to recover,” and therefore “falls outside the scope

of the waiver of sovereign immunity arising from § 702”); see also City of Houston v.

Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994) (“An award of


                                           30
monetary relief from any source of funds other than the [relevant fiscal year]

appropriation would constitute money damages rather than specific relief, and so

would not be authorized by [§ 702].”)11; cf. Am.’s Cmty. Bankers v. FDIC, 200 F.3d

822, 830 (D.C. Cir. 2000) (discussing Houston and reiterating that HUD’s

“commitment of the appropriated [grant] funds to other recipients and the expiration

of the congressional appropriation” in Houston rendered “an award from other

available HUD funds . . . money damages as opposed to specific relief”).

      The Tribes attempt to distinguish the facts in Houston and Suffolk from the

facts here. First, they point out that HUD treats NAHASDA funds as interchangeable

from year to year, by, e.g., “us[ing] funds appropriated in fiscal years 1998-2008 both

to augment underfunding in prior fiscal years and to supplement funds appropriated

in subsequent fiscal years.” Aplee. Br. 75-76.




      11
         Judge Matheson asserts that “we should follow Bowen,” rather than Houston
and Suffolk. Op. of Matheson, J., 11. But the issue we confront today—i.e., whether
an order to pay a grant recipient from a source of funds other than the relevant fiscal
year appropriation constitutes an award of money damages—simply didn’t arise in
Bowen. On the contrary, it doesn’t appear that the district court in Bowen ordered the
federal government to transfer any funds to Massachusetts, let alone that it ordered
the government to transfer those funds from a source other than the original one. See
Bowen, 487 U.S. at 888 (noting that “judgment did not purport to state what amount
of money, if any, was owed by the United States to Massachusetts, nor did it order
that any payment be made”). Instead, it appears that Massachusetts may have simply
remained in possession of the disputed funds all along, thus rendering it unnecessary
for the district court to order their return—and likewise rendering it unnecessary for
the Supreme Court to address whether such an order might constitute an award of
money damages. See, e.g., id. at 884 & n.3 (noting that applicable statute allowed
Massachusetts to retain disputed funds “pending resolution of the dispute”).


                                          31
      The Tribes appear to suggest that by treating NAHASDA funds as

interchangeable from year to year, HUD somehow implicitly waived its sovereign

immunity against claims for money damages. But “[a] waiver of sovereign immunity

‘cannot be implied’”; it “must be unequivocally expressed.” United States v.

Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. King, 395 U.S. 1, 4

(1969)). Thus, to the extent that HUD shuffles NAHASDA funding between years,

that fact is only relevant if by virtue of such shuffling, funds from the relevant yearly

appropriations remained at HUD’s disposal when the district court ordered it to repay

the Tribes. If not, then the district court’s order constituted an order to provide

“money damages rather than specific relief, and so [it wasn’t] authorized by [§ 702].”

Houston, 24 F.3d at 1428.

      In a related argument, the Tribes note that NAHASDA appropriations are “‘no-

year’ appropriations.” Aplee. Br. 74. And “[a] no-year appropriation is available for

obligation without fiscal year limitation.” 1 U.S. General Accounting Office, Office

of the General Counsel, Principles of Federal Appropriations Law, at 5-6 (2d ed.

1991). Thus, the Tribes assert, the “res” at issue here “is the sum of all NAHASDA

appropriations, carried forward and backward as they may be.” Aplee. Br. 78

(emphasis added).

      But the Houston court rejected a very similar argument. There, the district

court ruled that “the lapse of the appropriation from which fiscal 1986 [grant] monies

were drawn meant that there were no funds available from which HUD could

lawfully repay” the plaintiff. 24 F.3d at 1424. The plaintiff challenged this ruling on


                                            32
appeal, arguing that HUD could nevertheless repay it by using “‘no-year’ funds that

[were] not reserved for use in any particular year or for particular projects.” Id. at

1428. The D.C. Circuit disagreed, reasoning that those “no-year” funds constituted

“[a]n award of monetary relief from a[] source of funds other than the 1986 . . .

appropriation.” Id.

      So too here. Thus, to the extent the district court ordered HUD to repay the

Tribes “from all available sources,” e.g., App. vol. 12, 2463, we hold that those

orders constitute awards of money damages unless HUD had at its disposal sufficient

funds from the relevant yearly appropriations. Accordingly, we reverse in part and

remand to the district court for factual findings regarding whether, at the time of the

district court’s order, HUD had the relevant funds at its disposal.12

                                     *      *      *

      In resolving this appeal, our divided panel unanimously agrees on one thing:

the district court erred in ruling that a statute or regulation applies to render HUD’s

recapture of the alleged overpayments sans hearings illegal. But beyond that,

unanimous agreement eludes us. Instead, we form two different majorities in

answering the other two questions this appeal presents.

      Two members of the panel agree that the only potential alternative source of

authority HUD identifies on appeal is its common-law right to recover payments

      12
          For the reasons discussed above, see supra n.9, we affirm the district court’s
order directing HUD to return to the Navajo the funds it wrongfully recaptured from
that tribe in 2008, but only to the extent that sufficient funds were set aside from the
2008 NAHASDA appropriation for that purpose.


                                            33
made by mistake. And because the same two members of the panel agree that this

common-law right doesn’t apply under the circumstances present here, we conclude

that HUD lacked authority to recapture the funds. Accordingly, we affirm the district

court’s order to the extent that it characterizes the recaptures as illegal.

       But two other members of this panel agree that even if HUD illegally

recaptured the funds, the doctrine of sovereign immunity nevertheless precluded the

district court from ordering HUD to repay the Tribes. Thus, with one exception, we

reverse the portion of the district court’s order that directs HUD to repay the Tribes

and remand for factual findings regarding whether any of the recaptured funds

remained in HUD’s possession when the district court ordered it to repay the Tribes.




                                            34
Modoc Lassen Indian Housing Authority, et al. v. United States
Department of Housing and Urban Development, et al., Nos. 14-1313, 14-
1331, 14-1338, 14-1340, 14-1343, 14-1407, 14-1484, and 15-1060.

MATHESON, J., concurring in part and dissenting in part.

      I join Judge Moritz’s opinion except for Part II.C., which holds that, to the extent

HUD no longer had the Tribes’ particular funds, sovereign immunity bars the Tribes from

recovering. The majority1 concludes that HUD enjoys sovereign immunity because the

agency had allocated the money the Tribes seek and ordering HUD to pay the Tribes

from any other source would constitute impermissible “money damages.”

      The Supreme Court has explained that the nature of the relief sought, not the

source of the funds, determines whether sovereign immunity applies. The Tribes are

seeking specific relief—enforcement of NAHASDA’s mandate. They are not seeking

damages, and therefore the waiver of sovereign immunity in the Administrative

Procedure Act (“APA”), 5 U.S.C. § 702, applies.

      Although sovereign immunity poses no bar to the Tribes’ recovery, a different

limitation—the Appropriations Clause—may prevent them from obtaining their funds.2

HUD can disburse funds only according to the terms of the appropriations it receives

from Congress. The district court did not determine whether HUD has appropriations

available to satisfy the Tribes’ entitlements under NAHASDA. I therefore agree that we

      1
        Because Judge Bacharach joins Part II.C. of Judge Moritz’s opinion regarding
sovereign immunity, I will refer to it as the “majority.”
      2
          The Appropriations Clause provides: “No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law . . . .” U.S. Const., art. I,
§ 9, cl. 7.
should vacate the judgments, but I would remand for the district court to address the

appropriations issue.

       The following discussion attempts to expand and support these points.

A. Sovereign Immunity, APA § 702, Specific Relief, and “Money Damages”

       “Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “[A] waiver of

sovereign immunity must be unequivocally expressed in statutory text.” FAA v. Cooper,

566 U.S. 284, 290 (2012) (quotations omitted).

       Section 702 of the APA provides such a waiver:

       A person suffering legal wrong because of agency action, or adversely
       affected or aggrieved by agency action within the meaning of a relevant
       statute, is entitled to judicial review thereof. 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 . . . .

5 U.S.C. § 702 (emphasis added).

       The Supreme Court addressed the meaning of § 702’s “money damages” phrase in

Bowen v. Massachusetts, 487 U.S. 879 (1988). Massachusetts claimed the federal

government owed it Medicaid payments. Under Medicaid, the federal government

provides financial assistance to states to provide low-income individuals with health care.

See id. at 883-84. When the federal government “disallowed”—i.e., refused to pay—

certain expenses, Massachusetts sued for the money by asking the district court to reverse

the disallowances. Id. at 886-88. The Supreme Court held Massachusetts’s case fell


                                           -2-
within § 702’s waiver because it “[was] not a suit seeking money in compensation for the

damage sustained by the failure of the Federal Government to pay as mandated; rather it

[was] a suit seeking to enforce the statutory mandate itself, which happen[ed] to be one

for the payment of money.” Id. at 900. The Court explained that § 702 does not bar

actions that seek “monetary relief,” only ones seeking “money damages.” See id. at

896-97.

       Interpreting § 702, the Court distinguished substitutionary relief, which

compensates the plaintiff for its losses, from specific relief, which gives the plaintiff the

thing to which it is entitled. See id. at 893. For example, when a plaintiff suffers “an

injury to his person, property, or reputation,” an award of “monetary compensation,” or

“damages,” serves to substitute for that loss. Id. By contrast, “specific relief” includes

“an order . . . for the recovery of specific property or monies, ejectment from land, or

injunction either directing or restraining the defendant officer’s actions.” Id. (quotations

omitted). The Court quoted the D.C. Circuit: “‘Damages are given to the plaintiff to

substitute for a suffered loss, whereas specific remedies “are not substitute remedies at

all, but attempt to give the plaintiff the very thing to which he was entitled.”’” Id. at 895

(quoting Md. Dep’t of Human Res. v. Dep’t of Health and Human Servs., 763 F.2d 1441,

1446 (D.C. Cir. 1985) (Bork, J.) (in turn quoting D. Dobbs, Handbook on the Law of

Remedies 135 (1973))).

       Monetary relief can be specific or substitutionary. Thus, “[t]he fact that a judicial

remedy may require one party to pay money to another is not a sufficient reason to

characterize the relief as ‘money damages.’” Id. at 893. Money is often substitutionary,

                                             -3-
such as when it compensates a plaintiff for a personal injury, but the monetary relief in

Bowen was specific because Massachusetts sought “to enforce the statutory mandate

itself, which happen[ed] to be one for the payment of money.” Id. at 900.

       In contrast to Bowen, the Supreme Court ruled in Department of the Army v. Blue

Fox, Inc., 525 U.S. 255, 256-57 (1999), that sovereign immunity barred the plaintiff’s

lawsuit because it sought substitutionary relief. Blue Fox was a subcontractor on an

Army construction project. Id. The general contractor became insolvent and left the

project without paying Blue Fox under the subcontract. Id. Blue Fox sued the Army in

federal district court, attempting to acquire and enforce an “equitable lien” on the Army’s

remaining project funds. Id. at 258. The Supreme Court held sovereign immunity barred

Blue Fox’s lawsuit. Id. at 263. Bowen’s analysis of § 702, the Court explained, turns on

the distinction “between specific relief and compensatory, or substitute, relief,” not on

whether the action is equitable or legal. Id. at 261-62. Blue Fox sought substitutionary

relief because “by their nature” equitable liens “[do] not give the plaintiff the very thing

to which he was entitled; instead [they] merely grant[] a plaintiff a security interest in the

property, which the plaintiff can then use to satisfy a money claim.” Id. at 262-63

(brackets, citation, and quotations omitted). The lien was “a means to the end of

satisfying a claim for the recovery of money,” and was substitute, not specific, relief. Id.

       Together, Bowen and Blue Fox reveal that the function of the remedy is critical to

whether the action falls within § 702’s waiver. In Bowen, the remedy was fulfilment of

the plaintiff’s statutory entitlement to federal payments under Medicaid. 487 U.S. at 900.

The Bowen suit fit within § 702’s waiver because it gave the plaintiff the specific thing—

                                             -4-
federal Medicaid payments—to which it was entitled. In Blue Fox, the plaintiff sought,

through an equitable lien, “money in the hands of the Government as compensation for

the loss resulting from the default of the prime contractor.” 525 U.S. at 263. The Blue

Fox suit was outside § 702’s waiver because it did not concern the thing the plaintiff was

owed—payment from the general contractor—and was thus substitutionary.

       In sum, under the Supreme Court’s cases, the distinction between specific and

substitutionary relief turns on the nature of the relief, not on the source of funds.

B. Application

       This case is similar to Bowen. The Tribes seek enforcement of their entitlement to

NAHASDA funds. See 25 U.S.C. § 4111(a)(1) (“[T]he Secretary shall . . . make grants

under this section on behalf of Indian tribes . . . .”). The Tribes do not allege the

government destroyed or damaged their housing units or that other harms arose from the

government’s recapture of grant funds or failure to pay in a timely fashion. The Tribes

seek only the grant funds themselves—the very thing to which they are entitled. As in

Bowen, the Tribes have sued as statutory beneficiaries to enforce a mandate for the

payment of money by the federal government. This is not a suit for damages, § 702’s

waiver applies, and sovereign immunity poses no bar.3


       3
         The majority states that “whether an order to pay a grant recipient from a source
of funds other than the relevant fiscal year appropriation constitutes an award of money
damages . . . simply didn’t arise in Bowen.” Maj. op. at 31 n.11. But the cases are closer
than this statement suggests. Massachusetts, similar to the Tribes here, was a recipient of
a “grant-in-aid program.” Bowen, 487 U.S. at 882 n.1, 898, 908, and both Medicaid and
NAHASDA are statutory mandates for the payment of money to certain beneficiaries.
The alleged disallowances in Bowen are similar to the alleged “administrative offset[s]”

                                             -5-
C. The Majority’s Arguments

       The majority does not contend this case is closer to Blue Fox than Bowen. Its

analysis rests on a meaning of “substitutionary” relief drawn from out-of-circuit cases

that differs from the Supreme Court’s precedent. The majority concludes the Tribes are

requesting substitutionary relief because HUD has already disbursed the wrongfully

recaptured funds and would now have to repay the Tribes with other moneys. I address

this rationale and then discuss the two cases the majority relies on for support.

       1. Source of the funds

       The majority contends the district court awarded substitutionary relief because

HUD had disbursed the funds that should have gone to the Tribes. Maj. op. at 28-29.

Under this view, the source of funds to pay the Tribes matters. But using different

dollars to satisfy the Tribes’ specific entitlement does not make the Tribes’ relief

substitutionary. As discussed above, the function of the remedy determines whether it is

specific or substitutionary. The Tribes are requesting specific relief because, just like in

Bowen, they seek enforcement of “the statutory mandate itself, which happens to be one

for the payment of money.” 487 U.S. at 900. In Bowen, Massachusetts was not asking to

recover the exact same dollars the government had refused to pay it. Any dollars would




here. Maj. op. at 6. Apart from the differences between these funding programs, Bowen
established that whether § 702 applies turns on the nature of the requested relief; the case
did not hinge on a particular fiscal year appropriation. As I discuss below, the majority’s
appropriations concern is properly couched as an issue under the Appropriations Clause,
not sovereign immunity.

                                            -6-
do. See id. at 884 n.3, 887 nn. 8-9 (noting it was unclear what had happened to the

particular Medicaid funds).4

       Other forms of tangible property—the majority uses the example of a house—can

have unique aspects that make replacement by similar goods a close but imperfect

substitute. But money is fungible, or, as the majority says, “money is money.” Maj. op.

at 29. The Tribes do not care, just as Massachusetts in Bowen did not care, which dollars

they receive as long as their NAHASDA grant funds are paid to them. The majority errs

in treating this dispute as though it were over rare coins. In Bowen, Justice Scalia

recognized in dissent that the Court’s discussion of “the very thing” to which

Massachusetts was entitled was money, not particular currency. See 487 U.S. at 917-19

& n.3 (Scalia, J., dissenting).

       The majority’s house example shows why the Tribes are seeking specific, not

substitutionary, relief under Bowen. The majority posits that if HUD had wrongfully

given one tribe’s house to another tribe, the most that the wronged tribe could recover

would be the house’s monetary equivalent, which would be substitute relief and “money

damages.” Maj. op. at 29-30. But that is not the situation we face here because money is

       4
         As the majority notes, Maj. op. at 31 n.11, it was not clear to the Court in Bowen
whether the Medicaid funds that Massachusetts claimed were in the state’s or the federal
government’s possession: “The record does not tell us whether the State . . . elected to
retain the amount in dispute.” 487 U.S. at 887 n.8. In the face of that uncertainty, the
Court still held the case was “within the District Court’s jurisdiction under § 702’s waiver
of sovereign immunity.” Id. at 910. The Court did not limit its holding to the majority’s
view that only a claim to recover the precise funds taken or withheld can qualify for
§ 702’s sovereign immunity waiver. Rather, it adopted a specific-versus-substitutionary
approach to relief under § 702. We should follow the Supreme Court’s approach because
Bowen is binding. The majority’s cases from our sibling circuits are not.

                                            -7-
interchangeable and houses are not. The Bowen Court discussed in-kind benefits to

explain why suits for money can constitute specific relief:

       In the present case, [the State] is seeking funds to which a statute allegedly
       entitles it, rather than money in compensation for the losses, whatever they
       may be, that [the State] will suffer or has suffered by virtue of the
       withholding of those funds. If the program in this case involved in-kind
       benefits this would be altogether evident. The fact that in the present case
       it is money rather than in-kind benefits that pass from the federal
       government to the states . . . cannot transform the nature of the relief
       sought—specific relief, not relief in the form of damages.

Bowen, 487 U.S. at 895 (majority opinion) (emphasis added) (quoting Md. Dep’t of

Human Res., 763 F.2d at 1446).

       When a plaintiff is entitled to a sum of money, receipt of money totaling that sum

brings the plaintiff the very thing to which it is entitled. Fungible money does not

“substitute” for other money. Money is money.

       2. Circuit cases

       To support its view that the source of the funds matters for purposes of sovereign

immunity, the majority turns to two out-of-circuit cases. As detailed below, however, the

results in these cases rested on mootness and the Appropriations Clause. Their discussion

of § 702 and sovereign immunity is cursory and cannot be squared with Bowen.

          a. City of Houston

       In City of Houston v. HUD, 24 F.3d 1421 (D.C. Cir. 1994), HUD awarded

Houston a grant of approximately $20 million out of 1986 appropriations. Id. at 1424.

Four months later, HUD reduced the grant by $2.6 million and reallocated that money to

other grant recipients. Id. Houston sued, but not before the congressional act


                                           -8-
appropriating the disputed money had lapsed. Id. Relying on the “well-settled”

constitutional principle “that when an appropriation has lapsed or has been fully

obligated, federal courts cannot order the expenditure of funds that were covered by that

appropriation,” the D.C. Circuit held the city’s claim for monetary relief was moot

because the appropriation was both lapsed and fully obligated. Id.; see also id. at 1427.

The court explained the mootness problem stemmed from the Appropriations Clause.

See id. at 1428 (discussing Appropriations Clause); see also id. (“Nothing in Bowen . . .

even obliquely addresses the question of expired or fully obligated appropriations . . . .”).

       Although the D.C. Circuit grounded its holding in the Appropriations Clause, see

id. at 1424, 1427, it tacked on a paragraph responding to Houston’s “suggest[ion]” that

HUD could pay the city using funds other than the 1986 grant funds, id. at 1428. The

court said this would “run afoul” of § 702 because relief can be “specific” only when it is

paid out of “a specific res.” Id. Without further explanation or legal citation, the court

announced: “An award of monetary relief from any source of funds other than the

1986 . . . appropriation would constitute money damages rather than specific relief, and

so would not be authorized by APA section 702.” Id.

       But whether the government has particular funds to pay a given claim is unrelated

to whether the plaintiff is seeking damages. In a more recent case, the D.C. Circuit has

said that Bowen requires courts to “focus on the nature of the relief sought, not on

whether the agency still has the precise funds paid,” and that “[w]here a plaintiff seeks an

award of funds to which it claims entitlement under a statute, the plaintiff seeks specific

relief, not damages.” Am.’s Cmty. Bankers v. FDIC, 200 F.3d 822, 829 (D.C. Cir. 2000);

                                            -9-
see also id. at 830 (“[The plaintiff’s] claim represents specific relief within the scope of 5

U.S.C. § 702, not consequential damages compensating for an injury. That the

[defendant] no longer possesses the precise funds collected is not determinative of this

analysis.”). The court went on to distinguish City of Houston, where “[t]he principal

issue . . . was mootness, not the question of allowable specific relief as opposed to

unavailable money damages.” Id.

          b. County of Suffolk

       The majority also relies on County of Suffolk v. Sebelius, 605 F.3d 135 (2d Cir.

2010). The county claimed the Department of Health and Human Services had

shortchanged it in awarding grant funds for an HIV/AIDS program in fiscal years 2007

and 2008. Id. at 137. Because those funds were exhausted, the Second Circuit held the

Appropriations Clause made the case moot. Id. at 137-38. The court added, like the D.C.

Circuit in City of Houston, that a plaintiff seeking to enforce a statutory mandate is

limited to “the congressional appropriation that authorized the agency’s challenged

expenditure”; otherwise the suit becomes one for damages because no other “res” could

provide “the specific property the plaintiff aims to recover.” Id. at 141. And, again like

City of Houston, the Second Circuit offered no explanation for why the source of the

money matters for purposes of sovereign immunity.

       Relying on these cases, the majority defines “the very thing” the Tribes are

entitled to as the money for the particular NAHASDA grant years at issue. See Maj. op.

at 28-29. But as discussed below, the annual appropriations point concerns whether

HUD possesses properly appropriated funds to pay the Tribes, not whether the relief is

                                            - 10 -
specific or substitutionary. Instead of following the majority’s cases,5 we should follow

Bowen.

D. NAHASDA Funding

       Even if the majority is correct that the Tribes must extract their relief from a

specific res to fit within § 702’s sovereign immunity waiver, the majority has not

explained why we should reject the Tribes’ argument that NAHASDA funding generally,

not particular yearly appropriations, is the relevant res.6 The Tribes argue that

appropriations under NAHASDA are “no-year” funds because they can be used across

       5
         The majority also cites cases decided under Federal Rule of Criminal Procedure
41(g). See Maj. op. at 29-30. Such cases are inapt.
        The rule provides: “A person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for the property’s return.” The
majority cites Clymore v. United States, 415 F.3d 1113 (10th Cir. 2005), where we held,
without distinguishing between cash and other property, that a person cannot recover
property under the rule if “the government no longer possesses the property.” Id. at 1120.
The majority also looks to Diaz v. United States, 517 F.3d 608 (2d Cir. 2008), where the
Second Circuit concluded the government enjoys sovereign immunity when it has
wrongfully seized a defendant’s money but also has disbursed it because, lacking the
defendant’s particular cash, the government could only pay back “the cash equivalent.”
Id. at 611.
        These cases arose under a different legal provision. Transplanting them to the
§ 702 context is unwarranted. As one scholar has observed, Rule 41(g) by its terms
“requires the existence of ‘property’ that is capable of return.” Colleen P. Murphy,
“Money as a ‘Specific’ Remedy,” 58 Ala. L. Rev. 119, 151 (2006). By contrast, § 702,
as Bowen explained, turns on whether the relief is specific or substitutionary. See 487
U.S. at 893; see also Murphy, supra, at 142 (explaining the Bowen “majority construed
‘damages’ in section 702 of the APA to connote substitutionary monetary relief”).
“Thus, an even stronger argument can be made under section 702 than under Rule 41(g)
that the defendant need not possess the monetary res.” Murphy, supra, at 151.
       6
         The majority’s year-specific approach leads it to conclude that some Tribes may
be able to recover wrongfully withheld grant funds from 2008 because the district court
ordered a portion of the 2008 NAHASDA funds to be set aside. See Maj. op. at 28 n.10.
I agree.

                                            - 11 -
years until fully expended. Aplee. Br. at 73-78. Distinguishing the time-limited

appropriations in City of Houston and County of Suffolk, the Tribes argue that the relevant

“res” is all NAHASDA appropriations because the funds remain available for the

NAHASDA program until exhausted. Id. at 78.

       In response, the majority cites City of Houston, where the D.C. Circuit, after

holding the relevant appropriation had lapsed and was fully obligated, rejected the City’s

attempt to look to other funds that it claimed were “no-year” appropriations. Maj. op. at

32-33; see City of Houston, 24 F.3d at 1428. The Tribes, however, do not seek to recover

from other funds. They wish to recover from the NAHASDA funds themselves.

                                      *    *   *    *

       Under Bowen, the Tribes’ suit is not for “money damages.” Section 702 applies

because they are seeking specific relief—enforcement of the statutory mandate.

Sovereign immunity does not bar this suit.

       Whether HUD had sufficient funds to satisfy the Tribes’ claims is still an

important question, but it has nothing to do with whether they are seeking “money

damages” under § 702. Rather, the source-of-funds issue concerns the availability of

properly appropriated funds.

E. The Appropriations Clause

       Although sovereign immunity should not block the Tribes from seeking monetary

relief for wrongfully withheld or retained NAHASDA funds, the Appropriations Clause

may pose a separate problem. The Constitution provides that money can be withdrawn

from the Treasury pursuant only to a congressional appropriation. See U.S. Const., art. I,

                                           - 12 -
§ 9, cl. 7. As the Supreme Court has explained, the Appropriations Clause assures “that

public funds will be spent according to the letter of the difficult judgments reached by

Congress as to the common good and not according to the individual favor of

Government agents or the individual pleas of litigants.” Office of Pers. Mgmt. v.

Richmond, 496 U.S. 414, 427-28 (1990). When Congress appropriates funds to an

agency, the text of the appropriation limits the agency’s discretion to spend. See Salazar

v. Ramah Navajo Chapter, 132 S. Ct. 2181, 2194-95 (2012). As applied here, HUD can

pay NAHASDA funds to the Tribes only to the extent Congress has authorized HUD to

do so.

         The district court resolved the sovereign immunity issue in the Tribes’ favor and

awarded “funds from all available sources.” See, e.g., Aplt. Addm. at A-1 (judgment for

Fort Peck Housing Authority). It did not address the appropriations issue, which

concerns what funds are “available.”

         The Tribes contend HUD has never argued that the Appropriations Clause

constrains its ability to pay. See Aplee. Br. at 77. But HUD, although framing its

position in terms of sovereign immunity, has said it “no longer has the funds” from the

past grant years because they “have been fully obligated.” Aplt. Br. at 66, 68. As

discussed above, the availability of funds concerns the appropriations question, not

sovereign immunity. The Tribes also contend remaining NAHASDA funds were

available to satisfy their entitlement because past NAHASDA appropriations do not limit

spending by year. If the Tribes are correct on that point, a dispute remains over whether

there were sufficient funds to cover the Tribes’ entitlements.

                                            - 13 -
         I would remand for the district court to analyze these appropriations questions.

F. Conclusion

         Section 702 has waived HUD’s sovereign immunity. The Tribes are not seeking

money damages because they are seeking fulfillment of a specific statutory mandate. But

because the parties dispute whether Congress has appropriated funds that HUD could use

to satisfy the Tribes’ entitlements under NAHASDA and because the district court did

not address the appropriations issue, I concur in the majority’s decision to vacate the

judgments. I would, however, remand for further proceedings on the appropriations

issue.



Bacharach, J., concurring in part and dissenting in part.

         I join the majority’s excellent opinion in Parts II(A) and (C). But in

connection with Part II(B), I respectfully dissent. In my view, HUD

enjoyed statutory authority to recoup overpayments under the block grants.

Accordingly, I respectfully dissent from the majority’s conclusion in Part

II(B) that HUD lacked this authority.

                                            * * *

         The Native American Housing Assistance and Self-Determination Act

of 1996 (“NAHASDA”) authorizes a pool of funds for HUD to allocate

among Native American tribes. In this case, HUD overpaid certain tribes

and sought to recoup the overpayments through administrative offset.



                                            - 14 -
      The tribes contend that HUD lacked authority to recoup the

overpayments. According to the tribes, agencies like HUD can exercise

authority only upon a delegation from Congress. See La. Pub. Serv.

Comm’n v. FCC, 476 U.S. 355, 374 (1986). The tribes acknowledge that

“Congress empowered HUD to administratively recapture grant funds.”

Appellees’ Resp. Br. at 19. The tribes argue, however, that this statutory

power is limited to 25 U.S.C. §§ 4161 and 4165. And, as the majority

explains, these provisions do not apply here.

      HUD argues that it obtained authority to recoup the overpayments

through NAHASDA, which implicitly incorporated the longstanding

common-law principle that governmental entities can recoup erroneous

payments. I agree with HUD. Through NAHASDA, Congress incorporated

common-law principles that allowed HUD to recoup the overpayments by

adjusting the tribes’ annual allocations. Because the majority reaches a

different conclusion, I respectfully dissent with regard to Part II(B) of the

majority opinion.

I.    There is a longstanding common-law principle that governmental
      entities can recoup overpayments by offsetting amounts otherwise
      owed to the recipients.

      In justifying the administrative offsets here, HUD relies on the

common-law principle that governmental entities may recoup erroneous

payments. Appellants’ Opening Br. at 44 (citing United States v. Wurts,

303 U.S. 414, 415 (1938)). The Supreme Court recognized this principle in

                                    - 15 -
United States v. Wurts, stating that the government can recoup

overpayments through “appropriate action.” 303 U.S. at 415.

      As the tribes point out, Wurts involved a suit by the government to

recoup its funds. See id. at 415-16 (noting that the government has a “long-

established right to sue for money wrongfully or erroneously paid from the

public treasury”). Thus, the tribes would limit the Wurts principle to

situations involving suit brought by the federal government. See Appellees’

Resp. Br. at 48 (arguing that the Wurts principle stands only for the

proposition that the government may “bring a civil common law action in

an Article III court to recover funds that were paid by ‘mistake,’ through

the common law cause of ‘unjust enrichment’”).

      The majority agrees with the tribes’ interpretation of Wurts,

concluding that the Wurts principle allows the government only “to sue to

collect overpayments.” See Maj. Op. at 21-22 (emphasis in majority

opinion). The majority recognizes that in Grand Trunk Western Railway

Co. v. United States, 252 U.S. 112, 117 (1920), and United States v.

Munsey Trust Co., 332 U.S. 234, 236 (1947), the Supreme Court allowed

the recoupment of overpayments even without a suit. See Maj. Op. at 22-

25. But, the majority attempts to distinguish Grand Trunk and Munsey

Trust based on the fact that they involved governmental contracts with

private parties, not administrative offsets, and did not involve a “unique

trust responsibility.” Id. at 23-25.

                                       - 16 -
         I respectfully disagree. Wurts did not have occasion to address the

availability of common-law authority to recoup overpayments in the

absence of suit. Thus, Wurts cannot be read as a limitation on this

authority. See Alwert v. Cox Comm’ns, Inc., 835 F.3d 1195, 1212 (10th Cir.

2016) (“An opinion is not binding precedent on an issue not addressed in

the opinion.”); see also Maj. Op. at 17 (“‘Questions which merely lurk in

the record, neither brought to the attention of the court nor ruled upon, are

not to be considered as having been so decided as to constitute

precedents.’” (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Indeed,

Wurts relied on prior Supreme Court opinions stating that the government’s

common-law authority may come from either a suit or an offset. Wurts, 303

U.S. at 415 n.3, 416 n.4 (citing Supreme Court opinions). 7 And five federal

appellate courts have interpreted Wurts to allow offset without the need for

suit. 8 Until now, no circuit court has required the government to sue when

invoking the common-law authority to recoup overpayments.


7
         Grand Trunk W. R.R. Co. v. United States, 252 U.S. 112, 121 (1920) (“[The government] was under no
obligation to establish the illegality by suit. . . . [The government] was at liberty to deduct the amount of the
overpayment from the monies otherwise payable to the company to which the overpayment had been made.”); Wis.
Cent. R.R. Co. v. United States, 164 U.S. 190, 211 (1896) (“If, in [the government’s] judgment, money had been
paid without authority of law, and [the government] has money of the recipient in [its] hands, [it] is not compelled to
pay such money over, and sue to recover the illegal payments, but may hold it subject to the decision of the court
when the claimant sues. And in that way multiplicity of suits and circuity of action are avoided.” (citations
omitted)).
8
         See Bechtel v. Pension Benefit Guar. Corp., 781 F.2d 906, 906-07 (D.C. Cir. 1985) (per curiam) (holding
that an agency could “adjust[] the levels of ongoing payments” to recoup overpayments because the Wurts principle
indisputably authorized the agency to recoup funds); Collins v. Donovan, 661 F.2d 705, 708 (8th Cir. 1981) (holding
that an agency could recoup erroneous overpayments under Wurts and that a regulation allowing for this recoupment
“merely codifies the government’s common law right to recover overpayments”); Mount Sinai Hosp. of Greater
Miami, Inc. v. Weinberger, 517 F.2d 329, 337 & n.10 (5th Cir. 1975) (“In some circumstances when government


                                                        - 17 -
        The majority appears to recognize that suit is unnecessary when the

government exercises its common-law authority to recoup overpayments

from contractors. But a governmental contract is simply one of many

situations in which the common law has recognized a right of offset

without the need for a suit:

              The right of setoff is “inherent in the United States
        Government,” and exists independent of any statutory grant of
        authority to the executive branch. The scope of this common
        law right is broad. Historically, it has been exercised against
        anyone who has a “claim” against the government, including
        unpaid government contractors, persons to whom the
        government owes retirement benefits, and employees to whom
        final salary payments or lump sum payments are due.

United States v. Tafoya, 803 F.2d 140, 141-42 (5th Cir. 1986) (citations

omitted). Thus, four federal appellate courts have applied Wurts to allow

administrative offsets even without the need for suit or the applicability of

a government contract. See Bechtel, 781 F.2d at 906-07; Collins, 661 F.2d

at 708; Wilson Clinic & Hosp., Inc., 494 F.2d at 51-52; DiSilvestro, 405

F.2d at 153, 155.

        As the majority points out, these opinions do not involve a “unique

[trust] relationship.” Maj. Op. at 24. But the majority does not

                explain why this difference creates a material distinction or

funds are improperly paid out the government has a claim enforceable either by direct suit or by setoff . . . .”
(emphasis added) (citing Wurts)); Wilson Clinic & Hosp., Inc. v. Blue Cross of S.C., 494 F.2d 50, 51-52 (4th Cir.
1974) (noting that an agency could “withh[o]ld the amount of alleged overpayments from later accruals” because
“[i]t is underwritten by United States v. Wurts . . . that the Government may offset overpayments against current or
subsequent obligations”); DiSilvestro v. United States, 405 F.2d 150, 153, 155 (2d Cir. 1968) (noting that an agency
could “effect a set-off” to recoup erroneous payments because Wurts permits either setoff or a separate action).


                                                      - 18 -
           address the long line of authority allowing administrative

            offsets without the need for court action.


The majority points out that the government serves as a trustee for the

tribes that are overpaid. But overpayments diminish the amounts available

to other tribes, who are also beneficiaries of this trust relationship. The

majority does not explain why the government’s role as trustee would

affect the widely recognized power to recoup overpayments.

      The majority relies on an excerpt from a treatise by Richard Cappalli,

Federal Grants and Cooperative Agreements: Law, Policy, and Practice.

This excerpt discusses authorization to recoup funds otherwise owed to the

governmental entity making the grant. Richard B. Cappalli, Federal Grants

and Cooperative Agreements: Law, Policy, and Practice § 8:15, at 81

(1991 Cum. Supp.). But in the cited excerpt, Mr. Cappalli makes clear that

even when trust relationships are involved, Congress implicitly delegates

the power to administratively enforce grant programs notwithstanding the

absence of an express statutory remedy:

      Although Congress has occasionally provided in express terms
      for the recovery of federal payments through deductions from
      subsequent payments or lawsuits, the existence of such
      authorizations should not be taken as evidence that Congress
      intended no recoveries in programs lacking them. It is equally
      probable that Congress was doing no more than making explicit
      an administrative enforcement right otherwise implicitly held.
      The correct analysis is that the statutory duty of federal
      agencies to administer assistance is necessarily accompanied by
                                     - 19 -
      the power to enforce conditions of aid through reasonable
      means.

Id. Mr. Cappalli’s treatise does not suggest that a suit is needed when a

governmental trustee seeks to offset funds that are otherwise owed, and the

majority does not provide any other authority or reason to require suit

when a governmental trustee seeks to recoup overpayments.

II.   NAHASDA authorizes HUD to recoup mistakenly distributed
      funds.

      Congress implicitly delegated this common-law authority to HUD,

authorizing it to recoup overpayments through offset. Indeed, in the

absence of such a delegation, Congress would have left a gaping hole in

NAHASDA by requiring HUD to allocate funds from a finite sum without

any power to correct errors, leaving some tribes with too much and other

tribes with too little.

      In enacting NAHASDA, Congress presumably retained the common-

law authority to recoup overpayments. See United States v. Texas, 507 U.S.

529, 534 (1993) (“‘[S]tatutes which invade the common law . . . are to be

read with a presumption favoring the retention of long-established and

familiar principles, except when a statutory purpose to the contrary is

evident.’” (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)

(ellipsis in original))). Thus, Congress’s silence on HUD’s ability to

recoup overpayments indicates an intent to adopt the common-law

principle recognized in Wurts:

                                    - 20 -
         Congress is understood to legislate against a background of
         common-law adjudicatory principles. Thus, where a common-
         law principle is well established, . . . the courts may take it as
         given that Congress has legislated with an expectation that the
         principle will apply except when a statutory purpose to the
         contrary is evident.

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)

(internal quotation marks & citation omitted); see Norman J. Singer & J.D.

Shambie Singer, Statutes and Statutory Construction § 50:1, at 143 (7th ed.

2012) (“All legislation is interpreted in the light of the common law and

the scheme of jurisprudence existing at the time of its enactment.”). 9

         If Congress had not intended to delegate this common-law power to

HUD, a gap in NAHASDA would have allowed misallocations without any

expressly created mechanism for correction. In my view, however, the

mechanism for correction would have been implied. 10

         “[I]t is a fundamental principle of administrative law that the powers

of an administrative agency are not limited to those expressly granted by

the statutes, but include, also, all of the powers that may fairly be implied

therefrom.” Morrow v. Clayton, 326 F.2d 36, 43-44 (10th Cir. 1963); see


9
          This argument first appeared in HUD’s reply brief, and we often decline to consider arguments newly
raised in a reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). But HUD was responding to the
tribes’ argument that Wurts did not apply to an agency’s effort to recoup overpayments. HUD’s reply brief was a
perfectly appropriate place to respond to the tribes’ argument. See Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1166 n.3 (10th Cir. 2003) (stating that we review issues newly raised in a reply brief when offered in response to an
argument presented in the appellee’s brief); Sadeghi v. Immigration & Naturalization Serv., 40 F.3d 1139, 1143
(10th Cir. 1994) (considering an argument newly raised in a reply brief because it was responding to a contention in
the appellee’s brief).
10
          HUD did not make this argument. I discuss this scenario only to show what would have transpired if
Congress had failed to delegate its common-law authority to recoup overpayments. See note 5, below.


                                                       - 21 -
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843,

844 (1984) (“Sometimes the legislative delegation to an agency on a

particular question is implicit rather than explicit.”). Through NAHASDA,

Congress presumably delegated to HUD the powers fairly implied by the

authorization to distribute funds among eligible tribes. These powers

included authority to fill the gaps implicitly or explicitly created under

NAHASDA:

      The power of an administrative agency to administer a
      congressionally created and funded program necessarily
      requires the formulation of policy and the making of rules to
      fill any gap left, implicitly or explicitly, by Congress. In the
      area of Indian affairs, the Executive has long been empowered
      to promulgate rules and policies, and the power has been given
      explicitly to the Secretary and his delegates at the BIA.

Morton v. Ruiz, 415 U.S. 199, 231 (1974). Congress not only vested HUD

with broad authority to administer NAHASDA, but also specifically

authorized HUD to determine how much money each tribe would obtain. 25

U.S.C. § 4111(a); see Kaw Nation v. Springer, 341 F.3d 1186, 1187 (10th

Cir. 2003) (stating that block grants under NAHASDA are controlled by

HUD).

      If we assume that NAHASDA had not implicitly incorporated the

common-law right of offset, NAHASDA’s express delegation of authority

would have contained a sizeable gap. This gap would unleash a Pandora’s

Box of problems if either HUD or a tribe made a mistake leading to a

tribe’s underpayment or overpayment. For example, suppose that

                                    - 22 -
           the Navajo Tribe accurately reports the number of eligible rent-

            to-own units and


           this report leads to an allocation of $100,000 for a given year.

Now, suppose that HUD accidentally adds a zero and sends the Navajo

Tribe a check for $1,000,000 instead of $100,000. Or, suppose that the

Navajo Tribe accidentally miscounts its eligible housing units,

inadvertently increasing the tribe’s annual allocation from $100,000 to

$1,000,000. In either event, what would happen? Left uncorrected, the

Navajo Tribe would obtain a windfall of $900,000 and this windfall would

leave HUD $900,000 short when allocating the remaining funds among

other tribes.

      This would have resulted in a gap that had not been expressly

addressed in NAHASDA. Presumably, Congress would not intend to allow

such a mistake to go uncorrected. This presumption suggests that Congress

implicitly delegated to HUD the authority to fill this statutory gap and

correct misallocations based on mistakes by HUD or a given tribe. See Fla.

Med. Ctr. of Clearwater, Inc. v. Sebelius, 614 F.3d 1276, 1281 (11th Cir.

2010) (stating that “Congress implicitly delegated common law authority”

to the Secretary of Health and Human Services to recoup overpayments

from Medicare Part B providers); McNally v. United States, 483 U.S. 350,

373 (1987) (Stevens, J., dissenting) (“The wide open spaces in statutes


                                    - 23 -
such as these are most appropriately interpreted as implicit delegations of

authority to the courts to fill in the gaps in the common-law tradition of

case-by-case adjudication.”); see also Martin H. Redish & Christopher R.

Pudelski, Legislative Deception, Separation of Powers, and the Democratic

Process: Harnessing the Political Theory of United States v. Klein, 100

Nw. U. L. Rev. 437, 439 (2006) (stating that Congress sometimes delegates

“common-law-making power” to “agencies empowered to administer the

statute”).

         The majority implies that this power to fill gaps would require HUD

to adopt regulations when filling statutory gaps. But the tribes have not

questioned the sufficiency of HUD’s implementing regulations. 11

                                                       * * *

         In summary, HUD has the authority to recoup the overpayments. This

authority stems from the common-law principle allowing offset of

overpayments. Without incorporation of this common-law principle,

NAHASDA would have contained a wide gap. Even then, Congress would

have intended for HUD to fill that gap.




11
          The majority states that I regard the tribes as waiving this argument. Maj. Op. at 25-26 n.9. I am not doing
that. I am simply addressing the argument that the tribes made. The tribes argued that HUD lacked any statutory
authority to recoup the overpayments. That is incorrect, for Congress delegated to HUD the common-law authority
to offset funds owed to the government. I have simply pointed out that in the absence of that delegation of authority,
NAHASDA would have contained a gap to be filled by HUD. The tribes have argued only that HUD lacked
statutory authority, not that HUD failed to properly implement that authority by adopting regulations. See note 4,
above.


                                                       - 24 -
     The majority reaches a different conclusion based on factual

differences between our case and some of the opinions cited by HUD. But

even if those opinions are distinguishable, many others support HUD’s

reliance on the common-law principle allowing governmental entities to

recoup overpayments through administrative offset. I would apply those

opinions rather than stop the analysis based on factual distinctions with

HUD’s cited cases. Accordingly, I respectfully dissent from Part II(B) of

the majority opinion.




                                    - 25 -
Modoc Lassen Indian Housing Authority, et al. v. United States
Department of Housing and Urban Development, et al., Nos. 14-1313, 14-
1331, 14-1338, 14-1340, 14-1343, 14-1407, 14-1484, and 15-1060.

BACHARACH, J., concurring in part and dissenting in part.

     I join the majority’s excellent opinion in Parts II(A) and (C). But in

connection with Part II(B), I respectfully dissent. In my view, HUD

enjoyed statutory authority to recoup overpayments under the block grants.

Accordingly, I respectfully dissent from the majority’s conclusion in Part

II(B) that HUD lacked this authority.

                                   * * *

     The Native American Housing Assistance and Self-Determination Act

of 1996 (“NAHASDA”) authorizes a pool of funds for HUD to allocate

among Native American tribes. In this case, HUD overpaid certain tribes

and sought to recoup the overpayments through administrative offset.

     The tribes contend that HUD lacked authority to recoup the

overpayments. According to the tribes, agencies like HUD can exercise

authority only upon a delegation from Congress. See La. Pub. Serv.

Comm’n v. FCC, 476 U.S. 355, 374 (1986). The tribes acknowledge that

“Congress empowered HUD to administratively recapture grant funds.”

Appellees’ Resp. Br. at 19. The tribes argue, however, that this statutory

power is limited to 25 U.S.C. §§ 4161 and 4165. And, as the majority

explains, these provisions do not apply here.
      HUD argues that it obtained authority to recoup the overpayments

through NAHASDA, which implicitly incorporated the longstanding

common-law principle that governmental entities can recoup erroneous

payments. I agree with HUD. Through NAHASDA, Congress incorporated

common-law principles that allowed HUD to recoup the overpayments by

adjusting the tribes’ annual allocations. Because the majority reaches a

different conclusion, I respectfully dissent with regard to Part II(B) of the

majority opinion.

I.    There is a longstanding common-law principle that governmental
      entities can recoup overpayments by offsetting amounts otherwise
      owed to the recipients.

      In justifying the administrative offsets here, HUD relies on the

common-law principle that governmental entities may recoup erroneous

payments. Appellants’ Opening Br. at 44 (citing United States v. Wurts,

303 U.S. 414, 415 (1938)). The Supreme Court recognized this principle in

United States v. Wurts, stating that the government can recoup

overpayments through “appropriate action.” 303 U.S. at 415.

      As the tribes point out, Wurts involved a suit by the government to

recoup its funds. See id. at 415-16 (noting that the government has a “long-

established right to sue for money wrongfully or erroneously paid from the

public treasury”). Thus, the tribes would limit the Wurts principle to

situations involving suit brought by the federal government. See Appellees’

Resp. Br. at 48 (arguing that the Wurts principle stands only for the

                                      2
proposition that the government may “bring a civil common law action in

an Article III court to recover funds that were paid by ‘mistake,’ through

the common law cause of ‘unjust enrichment’”).

      The majority agrees with the tribes’ interpretation of Wurts,

concluding that the Wurts principle allows the government only “to sue to

collect overpayments.” See Maj. Op. at 21-22 (emphasis in majority

opinion). The majority recognizes that in Grand Trunk Western Railway

Co. v. United States, 252 U.S. 112, 117 (1920), and United States v.

Munsey Trust Co., 332 U.S. 234, 236 (1947), the Supreme Court allowed

the recoupment of overpayments even without a suit. See Maj. Op. at 22-

25. But, the majority attempts to distinguish Grand Trunk and Munsey

Trust based on the fact that they involved governmental contracts with

private parties, not administrative offsets, and did not involve a “unique

trust responsibility.” Id. at 23-25.

      I respectfully disagree. Wurts did not have occasion to address the

availability of common-law authority to recoup overpayments in the

absence of suit. Thus, Wurts cannot be read as a limitation on this

authority. See Alwert v. Cox Comm’ns, Inc., 835 F.3d 1195, 1212 (10th Cir.

2016) (“An opinion is not binding precedent on an issue not addressed in

the opinion.”); see also Maj. Op. at 17 (“‘Questions which merely lurk in

the record, neither brought to the attention of the court nor ruled upon, are

not to be considered as having been so decided as to constitute

                                       3
precedents.’” (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Indeed,

Wurts relied on prior Supreme Court opinions stating that the government’s

common-law authority may come from either a suit or an offset. Wurts, 303

U.S. at 415 n.3, 416 n.4 (citing Supreme Court opinions). 1 And five federal

appellate courts have interpreted Wurts to allow offset without the need for

suit. 2 Until now, no circuit court has required the government to sue when

invoking the common-law authority to recoup overpayments.


1
       Grand Trunk W. R.R. Co. v. United States, 252 U.S. 112, 121 (1920)
(“[The government] was under no obligation to establish the illegality by
suit. . . . [The government] was at liberty to deduct the amount of the
overpayment from the monies otherwise payable to the company to which
the overpayment had been made.”); Wis. Cent. R.R. Co. v. United States,
164 U.S. 190, 211 (1896) (“If, in [the government’s] judgment, money had
been paid without authority of law, and [the government] has money of the
recipient in [its] hands, [it] is not compelled to pay such money over, and
sue to recover the illegal payments, but may hold it subject to the decision
of the court when the claimant sues. And in that way multiplicity of suits
and circuity of action are avoided.” (citations omitted)).
2
      See Bechtel v. Pension Benefit Guar. Corp., 781 F.2d 906, 906-07
(D.C. Cir. 1985) (per curiam) (holding that an agency could “adjust[] the
levels of ongoing payments” to recoup overpayments because the Wurts
principle indisputably authorized the agency to recoup funds); Collins v.
Donovan, 661 F.2d 705, 708 (8th Cir. 1981) (holding that an agency could
recoup erroneous overpayments under Wurts and that a regulation allowing
for this recoupment “merely codifies the government’s common law right
to recover overpayments”); Mount Sinai Hosp. of Greater Miami, Inc. v.
Weinberger, 517 F.2d 329, 337 & n.10 (5th Cir. 1975) (“In some
circumstances when government funds are improperly paid out the
government has a claim enforceable either by direct suit or by setoff . . . .”
(emphasis added) (citing Wurts)); Wilson Clinic & Hosp., Inc. v. Blue
Cross of S.C., 494 F.2d 50, 51-52 (4th Cir. 1974) (noting that an agency
could “withh[o]ld the amount of alleged overpayments from later accruals”
because “[i]t is underwritten by United States v. Wurts . . . that the

                                      4
      The majority appears to recognize that suit is unnecessary when the

government exercises its common-law authority to recoup overpayments

from contractors. But a governmental contract is simply one of many

situations in which the common law has recognized a right of offset

without the need for a suit:

            The right of setoff is “inherent in the United States
      Government,” and exists independent of any statutory grant of
      authority to the executive branch. The scope of this common
      law right is broad. Historically, it has been exercised against
      anyone who has a “claim” against the government, including
      unpaid government contractors, persons to whom the
      government owes retirement benefits, and employees to whom
      final salary payments or lump sum payments are due.

United States v. Tafoya, 803 F.2d 140, 141-42 (5th Cir. 1986) (citations

omitted). Thus, four federal appellate courts have applied Wurts to allow

administrative offsets even without the need for suit or the applicability of

a government contract. See Bechtel, 781 F.2d at 906-07; Collins, 661 F.2d

at 708; Wilson Clinic & Hosp., Inc., 494 F.2d at 51-52; DiSilvestro, 405

F.2d at 153, 155.

      As the majority points out, these opinions do not involve a “unique

[trust] relationship.” Maj. Op. at 24. But the majority does not

           explain why this difference creates a material distinction or

Government may offset overpayments against current or subsequent
obligations”); DiSilvestro v. United States, 405 F.2d 150, 153, 155 (2d Cir.
1968) (noting that an agency could “effect a set-off” to recoup erroneous
payments because Wurts permits either setoff or a separate action).


                                      5
           address the long line of authority allowing administrative
            offsets without the need for court action.

The majority points out that the government serves as a trustee for the

tribes that are overpaid. But overpayments diminish the amounts available

to other tribes, who are also beneficiaries of this trust relationship. The

majority does not explain why the government’s role as trustee would

affect the widely recognized power to recoup overpayments.

      The majority relies on an excerpt from a treatise by Richard Cappalli,

Federal Grants and Cooperative Agreements: Law, Policy, and Practice.

This excerpt discusses authorization to recoup funds otherwise owed to the

governmental entity making the grant. Richard B. Cappalli, Federal Grants

and Cooperative Agreements: Law, Policy, and Practice § 8:15, at 81

(1991 Cum. Supp.). But in the cited excerpt, Mr. Cappalli makes clear that

even when trust relationships are involved, Congress implicitly delegates

the power to administratively enforce grant programs notwithstanding the

absence of an express statutory remedy:

      Although Congress has occasionally provided in express terms
      for the recovery of federal payments through deductions from
      subsequent payments or lawsuits, the existence of such
      authorizations should not be taken as evidence that Congress
      intended no recoveries in programs lacking them. It is equally
      probable that Congress was doing no more than making explicit
      an administrative enforcement right otherwise implicitly held.
      The correct analysis is that the statutory duty of federal
      agencies to administer assistance is necessarily accompanied by
      the power to enforce conditions of aid through reasonable
      means.
                                       6
Id. Mr. Cappalli’s treatise does not suggest that a suit is needed when a

governmental trustee seeks to offset funds that are otherwise owed, and the

majority does not provide any other authority or reason to require suit

when a governmental trustee seeks to recoup overpayments.

II.   NAHASDA authorizes HUD to recoup mistakenly distributed
      funds.

      Congress implicitly delegated this common-law authority to HUD,

authorizing it to recoup overpayments through offset. Indeed, in the

absence of such a delegation, Congress would have left a gaping hole in

NAHASDA by requiring HUD to allocate funds from a finite sum without

any power to correct errors, leaving some tribes with too much and other

tribes with too little.

      In enacting NAHASDA, Congress presumably retained the common-

law authority to recoup overpayments. See United States v. Texas, 507 U.S.

529, 534 (1993) (“‘[S]tatutes which invade the common law . . . are to be

read with a presumption favoring the retention of long-established and

familiar principles, except when a statutory purpose to the contrary is

evident.’” (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)

(ellipsis in original))). Thus, Congress’s silence on HUD’s ability to

recoup overpayments indicates an intent to adopt the common-law

principle recognized in Wurts:

      Congress is understood to legislate against a background of
      common-law adjudicatory principles. Thus, where a common-

                                      7
      law principle is well established, . . . the courts may take it as
      given that Congress has legislated with an expectation that the
      principle will apply except when a statutory purpose to the
      contrary is evident.

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)

(internal quotation marks & citation omitted); see Norman J. Singer & J.D.

Shambie Singer, Statutes and Statutory Construction § 50:1, at 143 (7th ed.

2012) (“All legislation is interpreted in the light of the common law and

the scheme of jurisprudence existing at the time of its enactment.”). 3

      If Congress had not intended to delegate this common-law power to

HUD, a gap in NAHASDA would have allowed misallocations without any

expressly created mechanism for correction. In my view, however, the

mechanism for correction would have been implied. 4



3
      This argument first appeared in HUD’s reply brief, and we often
decline to consider arguments newly raised in a reply brief. See Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000). But HUD was responding to the
tribes’ argument that Wurts did not apply to an agency’s effort to recoup
overpayments. HUD’s reply brief was a perfectly appropriate place to
respond to the tribes’ argument. See Beaudry v. Corr. Corp. of Am., 331
F.3d 1164, 1166 n.3 (10th Cir. 2003) (stating that we review issues newly
raised in a reply brief when offered in response to an argument presented
in the appellee’s brief); Sadeghi v. Immigration & Naturalization Serv., 40
F.3d 1139, 1143 (10th Cir. 1994) (considering an argument newly raised in
a reply brief because it was responding to a contention in the appellee’s
brief).
4
     HUD did not make this argument. I discuss this scenario only to
show what would have transpired if Congress had failed to delegate its
common-law authority to recoup overpayments. See note 5, below.


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      “[I]t is a fundamental principle of administrative law that the powers

of an administrative agency are not limited to those expressly granted by

the statutes, but include, also, all of the powers that may fairly be implied

therefrom.” Morrow v. Clayton, 326 F.2d 36, 43-44 (10th Cir. 1963); see

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843,

844 (1984) (“Sometimes the legislative delegation to an agency on a

particular question is implicit rather than explicit.”). Through NAHASDA,

Congress presumably delegated to HUD the powers fairly implied by the

authorization to distribute funds among eligible tribes. These powers

included authority to fill the gaps implicitly or explicitly created under

NAHASDA:

      The power of an administrative agency to administer a
      congressionally created and funded program necessarily
      requires the formulation of policy and the making of rules to
      fill any gap left, implicitly or explicitly, by Congress. In the
      area of Indian affairs, the Executive has long been empowered
      to promulgate rules and policies, and the power has been given
      explicitly to the Secretary and his delegates at the BIA.

Morton v. Ruiz, 415 U.S. 199, 231 (1974). Congress not only vested HUD

with broad authority to administer NAHASDA, but also specifically

authorized HUD to determine how much money each tribe would obtain. 25

U.S.C. § 4111(a); see Kaw Nation v. Springer, 341 F.3d 1186, 1187 (10th

Cir. 2003) (stating that block grants under NAHASDA are controlled by

HUD).



                                      9
      If we assume that NAHASDA had not implicitly incorporated the

common-law right of offset, NAHASDA’s express delegation of authority

would have contained a sizeable gap. This gap would unleash a Pandora’s

Box of problems if either HUD or a tribe made a mistake leading to a

tribe’s underpayment or overpayment. For example, suppose that

           the Navajo Tribe accurately reports the number of eligible rent-
            to-own units and

           this report leads to an allocation of $100,000 for a given year.
Now, suppose that HUD accidentally adds a zero and sends the Navajo

Tribe a check for $1,000,000 instead of $100,000. Or, suppose that the

Navajo Tribe accidentally miscounts its eligible housing units,

inadvertently increasing the tribe’s annual allocation from $100,000 to

$1,000,000. In either event, what would happen? Left uncorrected, the

Navajo Tribe would obtain a windfall of $900,000 and this windfall would

leave HUD $900,000 short when allocating the remaining funds among

other tribes.

      This would have resulted in a gap that had not been expressly

addressed in NAHASDA. Presumably, Congress would not intend to allow

such a mistake to go uncorrected. This presumption suggests that Congress

implicitly delegated to HUD the authority to fill this statutory gap and

correct misallocations based on mistakes by HUD or a given tribe. See Fla.

Med. Ctr. of Clearwater, Inc. v. Sebelius, 614 F.3d 1276, 1281 (11th Cir.


                                     10
2010) (stating that “Congress implicitly delegated common law authority”

to the Secretary of Health and Human Services to recoup overpayments

from Medicare Part B providers); McNally v. United States, 483 U.S. 350,

373 (1987) (Stevens, J., dissenting) (“The wide open spaces in statutes

such as these are most appropriately interpreted as implicit delegations of

authority to the courts to fill in the gaps in the common-law tradition of

case-by-case adjudication.”); see also Martin H. Redish & Christopher R.

Pudelski, Legislative Deception, Separation of Powers, and the Democratic

Process: Harnessing the Political Theory of United States v. Klein, 100

Nw. U. L. Rev. 437, 439 (2006) (stating that Congress sometimes delegates

“common-law-making power” to “agencies empowered to administer the

statute”).

      The majority implies that this power to fill gaps would require HUD

to adopt regulations when filling statutory gaps. But the tribes have not

questioned the sufficiency of HUD’s implementing regulations. 5


5
       The majority states that I regard the tribes as waiving this argument.
Maj. Op. at 25-26 n.9. I am not doing that. I am simply addressing the
argument that the tribes made. The tribes argued that HUD lacked any
statutory authority to recoup the overpayments. That is incorrect, for
Congress delegated to HUD the common-law authority to offset funds
owed to the government. I have simply pointed out that in the absence of
that delegation of authority, NAHASDA would have contained a gap to be
filled by HUD. The tribes have argued only that HUD lacked statutory
authority, not that HUD failed to properly implement that authority by
adopting regulations. See note 4, above.


                                      11
                                    * * *

     In summary, HUD has the authority to recoup the overpayments. This

authority stems from the common-law principle allowing offset of

overpayments. Without incorporation of this common-law principle,

NAHASDA would have contained a wide gap. Even then, Congress would

have intended for HUD to fill that gap.

     The majority reaches a different conclusion based on factual

differences between our case and some of the opinions cited by HUD. But

even if those opinions are distinguishable, many others support HUD’s

reliance on the common-law principle allowing governmental entities to

recoup overpayments through administrative offset. I would apply those

opinions rather than stop the analysis based on factual distinctions with

HUD’s cited cases. Accordingly, I respectfully dissent from Part II(B) of

the majority opinion.




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