that section 1702 does not waive sovereign immunity for the damages claimed here.
Because waivers of sovereign immunity are to be strictly construed, the statutory authority to sue federal officials does not necessarily operate as a complete waiver of the sovereign immunity of the United States. Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1132 (9th Cir. 1979). Noting that section 1702 limits recovery of money damages to funds within the agency's possession and control, the court in Marcus Garvey Square concluded that the waiver of immunity in section 1702 does not extend to the recovery of damages against the United States. Id. at 1131-32 (relying on FHA, Region 4 v. Burr, 309 U.S. 242, 250, 60 S. Ct. 488, 492, 84 L. Ed. 724 (1940)).
Under the analysis of FHA, Region 4 and Marcus Garvey Square, supra, plaintiffs' claim for damages is cognizable only if recovery can be had from the defendant officials individually or from funds in the agency's possession and control, as opposed to recovery from the United States Treasury. Plaintiffs' damages claim does not meet this test. Whatever may be the significance of plaintiffs' recent charges of bad faith on the part of HUD officials, plaintiffs expressly do not seek to hold the federal defendants individually liable. Nor do plaintiffs clearly point to specific funds within the agency's control that have been earmarked as a source of recovery for claims of this type. With the action in this posture, I can only conclude that plaintiffs' claim for damages runs directly against the United States and is barred by the doctrine of sovereign immunity.
Accordingly, I will grant federal defendants' motion to dismiss the damages claims in counts I and II, and I will enter summary judgment for plaintiffs on their claims for equitable relief in counts I-IV.
This 1st day of May, 1980, it is ORDERED
1. Federal Defendants' Motion to Dismiss plaintiffs' claims for damages in Counts I and II is GRANTED and the respective claims in Counts I and II are DISMISSED with prejudice.
2. Federal Defendants' Motion to Dismiss or in the Alternative for Summary Judgment on Counts I, II and IV is, in all other respects, DENIED.
3. Plaintiffs' Motion for Summary Judgment is GRANTED on all remaining counts and against all defendants.
In accordance with the foregoing disposition of the complaint, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1. HUD regulations at 24 C.F.R. §§ 403.1 to .12 (1978) preempt the jurisdiction of defendant Philadelphia Fair Housing Commission to suspend HUD-approved rent increases or to in any way delay, prevent, or interfere with the implementation of said increases in the federally subsidized housing project known as Woodhaven Gardens.
2. The Philadelphia Fair Housing Commission
(a) is ENJOINED from asserting jurisdiction over the rent structure at Woodhaven Gardens for any reason;
(b) shall direct the Urban League to release to plaintiffs all rent increases from Woodhaven Gardens presently held in escrow; and
(c) shall advise tenants at Woodhaven Gardens that it was and is without jurisdiction to order the suspension of HUD-approved rent increases and that tenants must pay said increases to plaintiffs in their next monthly payment from and after this date if they are not doing so presently.
3. The defendant United States Department of Housing and Urban Development and defendant federal officials
(a) shall instruct HUD officials charged with administering said regulations in the Philadelphia area that said regulations preempt the jurisdiction of the defendant Commission insofar as the Commission attempts to delay, prevent or interfere with the implementation of HUD-approved rent increases at Woodhaven Gardens; and
(b) shall take all reasonable steps to insure that this mandate is carried out.