The opinion of the court was delivered by: WILLSON
Plaintiffs allege that the defendant Housing Authority of the City of Pittsburgh unlawfully procured to itself from the Housing and Home Finance Agency, Public Housing Administration, a deed of the Glen Hazel housing project, which deed was recorded in the Recorder's office of Allegheny County, Pennsylvania. Plaintiffs allege that the conveyance was a nullity in that the attempted transfer occurred in violation of the prerequisites required for a valid transfer of the property under the Housing Act of 1950. Plaintiffs in their prayer for relief pray (a) that the deed be declared void and of no effect and that defendants be required to execute and reconvey the real estate described therein to the Housing and Home Finance Agency; (b) that defendants be requested to account for all rents, etc.; and (c) that defendants, Housing Authority of the City of Pittsburgh, be enjoined from removing and evicting tenants. Other relief is requested upon which it is not necessary to elaborate at this point.
The United States has filed a motion to dismiss alleging four reasons with sub-paragraphs, only the first of which is necessary to consider, and which reads:
'(1) The jurisdiction of the Court of Common Pleas of Allegheny County, Pennsylvania and therefore of this Honorable Court is challenged for the reasons:
'(a) The United States of America is an indispensable party to this action and has not been joined as a defendant, as required by the Federal Rules of Civil Procedure.
'(b) The Housing and Home Finance Agency, Public Housing Administration, an agency of the United States of America, was not served in accordance with Rule IV, Sections (d)-4 and (d)-5 of the Federal Rules of Civil Procedure (28 U.S.C.).
'(c) The United States of America has not given its consent to be sued.
'(d) The Lanham Act, the statute under which the Glen-Hazel was constructed and controlled, does not provide for jurisdiction of local courts, except in cases brought by the Administrator for the recovery of its property.'
It appears that the Glen Hazel housing project, consisting of 999 units, was a war housing development constructed under the provisions of the Lanham Act, 54 Stat. 1125, as amended, 42 U.S.C.A. § 1521 et seq. The purposes of the Lanham Act were to provide housing for persons engaged in national defense activities. Under the act, the Federal Works Administrator was charged with the responsibility of carrying out its provisions and was authorized to acquire interests in land by condemnation, purchase, gift or lease. By Executive Order No. 9070 of February 24, 1942, which is set forth in full under the note to sec. 601 of Title 50 U.S.C.A.Appendix, all the functions, powers and duties of the Federal Works Administrator under the Lanham Act relating to defense housing were transferred to the Federal Public Housing Authority, which was a constituent unit of the National Housing Agency. Under the President's Reorganization Plan No. 3 of 1947, effective July 27, 1947, 12 Fed.Reg. 4981, 5 U.S.C.A. following section 133y-16, the functions of the Federal Public Housing Authority were transferred to the Public Housing Administration under the Housing and Home Finance Agency.
In the administration of the Lanham Act the Federal Public Housing Authority, now Public Housing Administration, was considered to be an agent and instrumentality of the United States. United States v. City of Philadelphia, D.C., 56 F.Supp. 862, affirmed 3 Cir., 1945, 147 F.2d 291, certiorari denied 325 U.S. 870, 65 S. Ct. 1410, 89 L. Ed. 1989. It will be noted that the land and improvements involved in this action were held and owned by the United States and were conveyed by the United States to the Housing Authority of the City of Pittsburgh by the deed dated January 31, 1953, of which a copy is attached to the complaint.
The Public Housing Administration and the Housing and Home Finance Agency are administrative arms of the Federal Government and have no identity separate and distinct from the Government, being merely unincorporated agencies carrying out certain governmental functions. North Dakota-Montana Wheat Growers' Ass'n v. United States, 8 Cir., 1933, 66 F.2d 573, 92 A.L.R. 1484, certiorari denied 291 U.S. 672, 54 S. Ct. 457, 78 L. Ed. 1061; Thomason v. Works Progress Administration, 9 Cir., 1943, 138 F.2d 342. The United States is an indispensable party since its interests and property are directly affected by this action. As pointed out above, the Glen Hazel housing project was owned by the United States and conveyed by it to the Housing Authority of the City of Pittsburgh by deed dated January 31, 1953. It is apparent that a decree in favor of the plaintiffs would constitute an interference with the use and disposition by the United States of its property. Under such circumstances, the courts have held that the United States is an indispensable party.
Assuming, however, that the first two reasons advanced by the government are procedural merely and if decided adversely to plaintiff would not dispose of the real issue, an inquiry must be directed under the motion, paragraph 1(c), as to whether or not the United States has given its consent to be sued under the facts alleged in this complaint. Plaintiffs assert that 42 U.S.C.A. § 1404a, a, which provides that, 'The Public Housing Administration shall sue and be sued only with respect to its functions under this chapter, and sections 1501-1505 of this title', authorizes the suit. The chapter referred to is Chapter 8 of 42 U.S.C.A. § 1401 et seq., designated 'Low Rent Housing'. It is to be observed that section 1405(b) adds nothing substantive to the foregoing section, but is merely directive as to the name to be used in a suit against the Public Housing Administration.
Further, section 1404a cannot be enlarged so as to authorize the suit in question, which seeks to set aside a deed of the United States. Plaintiffs quote at considerable length Shanks Village Committee Against Rent Increases v. Cary, 197 F.2d 212. Though that decision is from the Second Circuit, the opinion was written by Judge Biggs of this Circuit. That decision bears on the functions only of the Administrator in the operation of a housing project. It is not regarded as deciding the question now under discussion. In Gibbs v. United States, 4 Cir., 150 F.2d 504, it is held that Congress alone has the power to dispose of ...