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May 19, 1982

MONAL CONSTRUCTION COMPANY and L-D Building Company, a joint venture, Plaintiffs
BROOKSIDE LIMITED PARTNERSHIP, a Pennsylvania limited partnership, United States Department of Housing and Urban Development, Mellon Bank, N. A., Federal National Mortgage Association, Government National Mortgage Association, Defendants

The opinion of the court was delivered by: TEITELBAUM


The above captioned action was initially filed by Monal Construction Company and L-D Building Company (hereinafter jointly referred to as Monal or the contractor), joint venturers on a construction contract, in the Common Pleas Court of Allegheny County to recover the final payment due on a construction contract. In substance, Monal alleged that Brookside Limited Partnership (hereinafter referred to as Brookside) desired to build a multi-family housing project in Beaver County. Brookside retained Monal to construct the project and arranged financing through Mellon Bank, N.A. (hereinafter referred to as Mellon). Monal alleged that Brookside deposited money with Mellon to be paid to Monal as the construction was completed. Apparently, the money paid into escrow by Brookside represented the difference between the total cost of construction and a construction mortgage issued by Mellon. *fn1" Additionally, Monal joined the United States Department of Housing and Urban Development (hereinafter referred to as HUD) and the Federal National Mortgage Association (hereinafter referred to as FNMA) as defendants. Monal's theory of liability against these defendants appears to rest on the involvement of these entities in the funding of the construction.

 Thereafter, HUD filed a petition for removal citing 28 U.S.C. § 1443. *fn2" After careful reflection, this Court is convinced that that statute cannot support jurisdiction. However, reference to that statute may have been a mere typographical error, and the Court feels constrained to consider whether removal would be proper under any other federal statute. *fn3" It appears to this Court that HUD could have properly invoked jurisdiction under 28 U.S.C. § 1442,3A see Bennett Construction Co. v. Allen Gardens, Inc., 433 F. Supp. 825, 832 (W.D.Mo.1977). After the petition for removal was filed, several of the defendants filed motions for more definite statements complaining that the documents attached as exhibits to the original complaint were not the contracts identified in the body of the complaint. Plaintiff apparently conceded that this was true and filed a motion for leave to amend. That motion was granted by this Court and plaintiff filed an amended complaint attaching different exhibits and naming the Government National Mortgage Association (hereinafter referred to as GNMA) as an additional defendant.

 The parties appear to have concluded the pleading phase of this case and, in addition to plaintiff's claims against the defendants, several other claims have been made. Brookside has filed a counterclaim against Monal and a crossclaim against HUD alleging that Monal performed inadequately under the contract and that HUD approved that inadequate performance. Brookside has stated an extensive list of deficiencies in the construction and seeks over $ 300,000.00 on its claim. GNMA has also filed a crossclaim against Brookside seeking indemnity alleging that Mellon assigned $ 36,900 in the escrow account to GNMA and that, pursuant to instructions from FNMA, GNMA released $ 33,900 to Brookside to pay Monal and that Brookside has not paid Monal. Brookside has admitted these allegations.

 Because the defendants contend this Court lacks jurisdiction because the United States is the real party in interest, the Court must consider that issue first. The defendants, HUD and GNMA, do not contend that it is the United States which is the real party in interest because they lack the capacity to be sued eo nomine, rather they contend that the United States is the real party in interest because a judgment if rendered against them, would inevitably have to be satisfied from the public treasury and not from assets segregated from the public treasury and within the exclusive control of HUD or GNMA. *fn5" In Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963) the United States Supreme Court held that if a judgment would have to be paid from the public treasury then the real party in interest is the United States. Whether or not that is what the claims against HUD and GNMA would inevitably require can only be determined after an analysis of each of the claims.

 Before turning to that analysis, it is convenient to address a contention raised by Brookside. Brookside argues that HUD is in possession of money that has already been segregated from the public treasury, that this money is available to pay any judgment, and that HUD is therefore the real party in interest. Specifically, Brookside points to money in HUD's possession as: the Low and Moderate Income Sponsor Fund, 12 U.S.C. § 1701x; the Mutual Mortgage Insurance Fund, 12 U.S.C. § 1708; the Investment of Funds, 12 U.S.C. § 1712; and the General Insurance Fund, 12 U.S.C. § 1735c. A review of the statutes creating those funds, establishes that each fund was created for a specific purpose and that the monies therein are not generally available for any debt of HUD. Thus unless a claimant on these funds meets the prerequisite for receiving any money from those funds, no money may be paid from them. Cf. Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126, 1131 (9th Cir. 1979). It appears that none of the claims made in the case at bar qualify for distribution from those funds and unless some other source can be identified to pay a judgment, it appears that the action must inevitably be one against the United States.

 It thus now is important to consider the individual claims. There are two claims pending against HUD: the claim of Monal and the claim of Brookside. The only claim pending against GNMA is that of the plaintiff. Monal seeks to hold HUD jointly and severably liable with the other defendants for $ 36,900, the sum remaining to be paid on the construction contract. Monal claims that there is a contractual relationship under which HUD owes some duties to Monal. Such a theory of relief was recognized in Trans-Bay Engineers and Builders, Inc. v. Hills, 179 U.S. App. D.C. 184, 551 F.2d 370 (D.C.Cir.1976). In that case, the contractor had made out a prima facie case entitling him to recover from HUD the amount "heldback" from the monthly progress payments. However, unlike the present case, HUD had foreclosed on the property and, in the view of the Court of Appeals, HUD would be unjustly enriched if it kept the buildings without paying the contractor who had built them. In Trans-Bay, the Court was willing to permit an equitable lien to be attached to the building as security for final payment. Thus, in Trans-Bay any final judgment would actually be payable from a tangible res in the sole control of HUD-i.e. the buildings-and the United States was not a real party in interest under the rule in Dugan, supra. Since in the case at bar there is no allegation of foreclosure, in fact the allegations by Brookside on its claims suggest it is in possession of the project, an identifiable res from which HUD would pay a judgment is lacking. Ergo, the real party in interest is the United States. A similar analysis of Brookside's claims against HUD also indicates that the real party in interest is the United States. Marcus Garvey Square, Inc. v. Winston Burnett Construction Co., 595 F.2d 1126 (9th Cir. 1979); DSI Corp. v. Secretary of Housing and Urban Development, 594 F.2d 177 (9th Cir. 1979), and American Fidelity Fire Ins. v. Construcciones Werl, Inc., 407 F. Supp. 164 (D.V.I.1975). Therefore, the action against HUD will be redesignated as one against the United States and not HUD.

 However, a different conclusion results from a consideration of the claims against GNMA. As GNMA has itself alleged in its crossclaim against Brookside, it received the escrow account from Mellon and still has $ 3,000 from the escrow in its possession. The escrow account was created specifically to guarantee payment to the contractor and this money is available to pay a judgment to the contractor-plaintiff if he prevails. Thus GNMA is the real party in interest on the plaintiff's claim against it.

 Having determined that the United States should be substituted for HUD, but not for GNMA, it becomes this Court's duty to review the jurisdictional basis of this suit. While this Court noted earlier that HUD could properly have relied on 28 U.S.C. § 1442 in removing this suit, that statute does not provide a jurisdictional basis for suit against the United States. Moreover, this Court is unaware of any statute granting this Court jurisdiction over the United States in these circumstances.

 Because the only basis for the exercise of this Court's jurisdiction, 28 U.S.C. § 1442, vanishes with the departure of HUD from this case this Court must consider the appropriate disposition of this case. Two possibilities have been suggested: that this case be transferred to the Court of Claims or remanded to the state court. Because it appears that venue would be improper in the Court of Claims, at least as to Mellon Bank, N.A., 12 U.S.C. § 94, it is inappropriate to transfer the entire action to that forum. The Court has considered transferring the case in part, specifically the claims of Brookside against the United States, to the Court of Claims but deems that to be a futile act which would unnecessarily duplicate an action brought by Brookside in that court against the United States concerning the same common nucleus of operative facts as this action.

 The other alternative and the course which this Court must follow is to remand this matter to state court. In remanding this matter to state court, this Court must make one further comment. On April 12, 1982, this Court invited counsel for all parties to attend a status conference. At that time, this Court briefly synopsized the above analysis and noted the possibility that if the case were remanded, then GNMA, having been joined as a party after the removal, *fn6" would have its first opportunity to remove after the remand and might be able to assert jurisdiction in federal court under 28 U.S.C. § 1442. The Court suggested that the needless process of a remand and another removal should be avoided and ordered that any party or parties desiring to assert some further federal jurisdictional predicate do so prior to April 19, 1982. Only HUD indicated its desire to remain in federal court if it remained a party eo nomine. Since it will not, this matter shall be remanded to state court without concern for a later removal.

 An appropriate order will ...

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