Passamaquoddy Tribe at Pleasant Point, DAB No. 3144 (2024)

DECISION

Passamaquoddy Tribe at Pleasant Point (the Tribe) appeals a decision by the Administration for Children and Families (ACF) to disallow $56,314 in federal funds awarded to the Tribe under a Low-Income Home Energy Assistance Program (LIHEAP) grant.  In 2010, an independent auditor determined that the Tribe used LIHEAP funds for major renovations that did not meet LIHEAP standards for low-cost residential weatherization or other energy-related home repairs.  By letter dated June 22, 2018, ACF notified the Tribe that it was disallowing the renovation costs charged to the grant based on the audit.  The Tribe contends that ACF’s disallowance is barred by 28 U.S.C. § 1658, a federal statute of limitations applicable to certain “civil actions.”  We reject the Tribe’s reliance on the statute of limitations and uphold the disallowance in full.

Legal Background

LIHEAP is a block grant program authorized by the Low-Income Home Energy Assistance Act (Act) of 1981, Pub. L. No. 97-35, 42 U.S.C. §§ 8621-8630.  LIHEAP provides grants to states, territories, and Indian tribes to “assist low-income households, particularly those with the lowest incomes, that pay a high proportion of household income for home energy, primarily in meeting their immediate home energy needs.”  42 U.S.C. §§ 8621(a), 8623(b), (d); see also 45 C.F.R. § 96.48 (describing requirements for direct funding of Indian tribes under LIHEAP).  “Home energy” is defined as “a source of heating or cooling in residential dwellings.”  42 U.S.C. § 8622(6).

Grantees may use up to 15 percent (or up to 25 percent with a waiver) of their LIHEAP funds “for low-cost residential weatherization or other energy-related home repair for low-income households, particularly those low-income households with the lowest incomes that pay a high proportion of household income for home energy.”  Id. § 8624(k); see also 45 C.F.R. § 96.83.  LIHEAP funds may not be used for the “purchase or improvement of land, or the purchase, construction, or permanent improvement (other than low-cost residential weatherization or other energy-related home repairs) of any building or other facility.”  42 U.S.C. § 8628.

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LIHEAP grantees must establish fiscal control and fund accounting procedures to assure proper disbursal of and accounting for federal funds, including procedures for monitoring the assistance provided under LIHEAP.  Id. § 8624(b)(10).  Grantees must also comply with the provisions of the Single Audit Act, 31 U.S.C. § 7501 et seq.  Id.  Grantees must repay LIHEAP funds that are not expended in accordance with LIHEAP requirements.  Id. § 8624(g).

The block grant regulations under 45 C.F.R. Part 96 apply to LIHEAP grants.  See 45 C.F.R. § 96.1(g).  Subject to certain exceptions not applicable here, Indian tribes or tribal organizations that receive funds under LIHEAP are subject to the same statutory and regulatory requirements applicable to States.  Id. § 96.42(a).  Except where otherwise required by federal law or regulation, grantees “shall obligate and expend” LIHEAP funds “in accordance with the laws and procedures applicable to the obligation and expenditure of its own funds.”  Id. § 96.30(a).  Grantees must, among other things, establish fiscal control and accounting procedures that are sufficient to “(a) permit preparation of reports required by the statute authorizing the block grant and (b) permit the tracing of funds to a level of expenditure adequate to establish that such funds have not been used in violation of the restrictions and prohibitions of the statute authorizing the block grant.”  Id.  Grantees are also responsible for obtaining audits that “shall be made by an independent auditor in accordance with generally accepted Government auditing standards covering financial audits.”  Id. § 96.31(a).

Any funds found to be expended improperly after audit resolution must be repaid to the Department of Health and Human Services (HHS).  Id. § 96.32.  If a grantee disagrees with ACF’s decision to disallow expenditures and require the repayment of grant funds, a grantee may request a hearing in accordance with 45 C.F.R. Part 96, Subpart F.  Id. §§ 96.51, 96.60.  Decisions resulting from a repayment hearing may be appealed to the Departmental Appeals Board (Board).  Id. § 96.52(a).  Appeals to the Board shall be governed by 45 C.F.R. Part 16, except that the Board shall not hold a hearing.  Id. § 96.52(d).  When reviewing a disallowance, the Board is “bound by all applicable laws and regulations.”  45 C.F.R.§ 16.14.

Case Background

A. An independent auditor determined the Tribe used LIHEAP funds for renovation expenses that are not allowable under the program.

In 2010, the Tribe engaged an auditor due to complaints received about “questionable activity occurring with the LIHEAP administration.”  Appellant’s Brief (App. Br.) at 2.  An independent auditor conducted an audit of “financial statements of the governmental activities, each major fund, and the aggregate remaining fund information of [the Tribe] as of and for the year ended December 31, 2009.”  ACF Ex. 1 (Audit Report), at 6.  The auditor identified questioned costs concerning LIHEAP.  Id. at 111.  Specifically, the

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auditor found that “certain expenses were found to not be allowable to the program as major renovations, such as major roof renovations, trailer relocation, and a handicap ramp.”  Id.  The auditor determined that the Tribe “may have to pay back the grant for the amount of the questioned costs,” which “approximated $56,314.”  Id.  The auditor recommended that the Tribe take certain corrective actions to improve its internal controls.  Id. at 112.  In response to the auditor’s recommendations, the Tribe consolidated many of its accounts for better control; implemented a new accounting system; implemented payable controls to ensure only authorized expenditures are made and charged to the proper fund; and established a compliance officer position.  Id.  The Tribe did not pay back the questioned costs.

In a letter dated October 29, 2010, the HHS Office of the Inspector General (OIG) notified the Tribe that the audit report had been received by the Federal Audit Clearinghouse on September 29, 2010, and that it met federal audit requirements.  ACF Ex. 2, at 1.  The letter also notified the Tribe that final determinations with respect to actions to be taken on HHS recommendations would be made by ACF in connection with the $56,314 in unallowable costs identified in the report.  Id. at 1, 3 (identifying ACF as the resolution agency).

B. ACF disallowed the questioned costs and granted a hearing.

By letter dated June 22, 2018, ACF notified the Tribe that it was disallowing questioned costs in the amount of $56,314 under the LIHEAP grant based on the audit findings.  ACF Ex. 3, at 1.  ACF quoted the relevant findings in the audit report, the auditor’s recommendations, and the Tribe’s response.  Id. at 1-2.  ACF noted that the Tribe’s corrective action satisfied the auditor’s recommendations but did not resolve the questioned costs.  Id. at 2.  ACF explained that the Tribe violated 42 U.S.C. § 8628, which prohibits the use of LIHEAP funds for “the purchase, construction, or permanent improvement (other than low-cost residential weatherization or other energy-related home repairs) of any building or other facility.”  Id. at 3 (quoting 42 U.S.C. §§ 8628, 8624(k)(1)(B)).  ACF found that the Tribe used LIHEAP funds for a complete roof replacement, the relocation of trailers, and the construction or repair of handicap ramps or doors.  Id.  ACF stated that it “does not consider major roof renovations, relocation of trailers, and the construction of a handicap ramp or door to be ‘low-cost residential weatherization or other energy-related home repair.’”  Id.

The disallowance letter advised the Tribe that it could request a hearing if it disagreed with ACF’s determination, otherwise, the decision would be final.  Id. (citing 45 C.F.R. § 96.51).  The letter explained that if a hearing were requested, ACF would designate a presiding officer to conduct the hearing.  Id. at 4.  The letter also advised that either party (i.e., the Tribe or ACF) could appeal the hearing decision to the Board.  Id. (citing 45 C.F.R. § 96.52).  The letter further explained that, regardless of any appeals, if the

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disallowed amount were not repaid within 30 days, “interest will accrue” on the unpaid amount and “will be calculated from the date of [the] disallowance letter.”  Id. at 5.

The Tribe requested a hearing, challenging ACF’s disallowance determination.  ACF Ex. 4.  On March 15, 2019, the presiding officer designated by ACF convened a hearing.  ACF Ex. 5.  By letter dated October 28, 2019, the presiding officer issued a final decision upholding the disallowance.  Id.  The presiding officer explained that the disallowance resulted from the Tribe using LIHEAP funds for major renovations, including a complete roof replacement, relocation of trailers, and the construction of a handicap ramp and door, that did not meet LIHEAP standards for “low-cost weatherization or other energy-related home repairs.”  Id. at 1.  The presiding officer concluded that the expenditures were not allowable under the Act and sustained the entire disallowance of $56,314.  Id. at 2.  The decision letter further advised that the Tribe had a right to appeal the hearing decision to the Board.  Id.

C. The Tribe appealed the hearing decision to the Board, arguing that the disallowance is barred by limitations.

On December 5, 2019, the Tribe timely filed a notice of appeal with the Board.  Notice of Appeal at 3-4.  The Tribe asserted that ACF’s decision is “wrong” because “the expenditures were in compliance with the program’s rules and regulations”; “ACF rendered its decision long after the allowable time permitted under the federal statute of limitations”; and the “hearing examiner did not consider any of the Tribe’s positions.”  Id. at 3-4.

After multiple extensions of the briefing deadline, the Tribe filed an appeal brief identifying only one issue: “Whether or not the ACF erred by violating the Statute of Limitations in disallowing costs after expiration of the statutorily permitted period.”  App. Br. at 1.¹  The Tribe contends that the disallowance is untimely under 28 U.S.C. § 1658, which provides a four-year statute of limitations for certain “civil actions” arising under federal law.  Id. at 2 (quoting 28 U.S.C § 1658(a)).  The Tribe points out that ACF issued the disallowance determination more than four years after the Tribe submitted the audit report to ACF in 2010.  Id. at 2-3.  The Tribe further requests waiver of “penalties and interest” if the Board upholds the disallowance.  Id. at 3-4.

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In response, ACF notes that the Tribe does not dispute that the expenditure of LIHEAP funds on roof renovations, trailer relocation, and a handicap ramp was unallowable.  ACF Br. at 6.  ACF further argues that 28 U.S.C. § 1658 does not apply because disallowances are not “civil actions” and, in any event, section 1658 does not apply to a demand for repayment under the Act, which was enacted in 1981 before the enactment of the statute of limitations.  Id. at 7-11.

Analysis

I. The statute of limitations at 28 U.S.C. § 1658(a) does not apply here and provides no basis to overturn the disallowance.

The Tribe argues that ACF’s disallowance is untimely and barred by 28 U.S.C. § 1658(a).  App. Br. at 2-3.  Section 1658(a) provides: “Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.”  28 U.S.C. § 1658(a) (emphasis added).  The Tribe asserts that because it submitted its audit to ACF in 2010, “the time upon which ACF could have decided to disallow costs expired in 2014.”  App. Br. at 3.  ACF issued its disallowance determination by letter dated June 22, 2018.  ACF Ex. 3.

The Board has long held that an agency’s delay in issuing a disallowance does not invalidate the disallowance absent an applicable law or regulation limiting the time period for the agency to issue the disallowance determination.  See Va. Dep’t of Medical Assistance Servs., DAB No. 3108, at 28 (2023); Mich. Dep’t of Health & Human Servs., Office of Child Support, DAB No. 2868, at 7 (2018); Md. Dep’t of Human Res., DAB No. 519, at 3 (1984).  Moreover, “[n]o statute of limitations applies to the federal government except where Congress expressly provides otherwise.”  Md. Dep’t of Human Res. at 3.  “The reason for this is the public policy of preserving the public rights, revenues, and property from injury and loss by the negligence of public officers.”  Id. (quoting Guaranty Trust Co. v. United States, 304 U.S. 126, 132 (1938)).  “Traditionally, statutes of limitations and laches did not apply against the United States because of the historical privileges of the sovereign.”  Ga. Dep’t of Medical Assistance (Georgia), DAB No. 798, at 5 (1986) (citing S.E.R., Jobs for Progress, Inc. v. United States, 759 F.2d 1, 6-8 (Fed. Cir. 1985)).  Thus, it is only when Congress has expressly provided for a statute of limitations against the United States that one applies.

The Board previously rejected arguments that a statute of limitations under Title 28, specifically 28 U.S.C. § 2415, should bar a federal agency’s demand for repayment in connection with a grant disallowance.  See Cmty. Action Comm’n of Belmont Cnty., Ohio, DAB No. 565, at 5, 7 (1984); Georgia at 5-6.  Section 2415, with certain exceptions, imposes limitations on “every action for money damages brought by the United States . . . which is founded upon any contract express or implied in law or fact.”  28 U.S.C.

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§ 2415(a).  In Community Action, the Board held that section 2415 “applies only to actions brought in federal court.”  Cmty. Action at 7.  The Board noted that Title 28 of the United States Code is entitled, “Judicial Code and Judiciary,” and “the entire title is devoted to the federal courts and actions brought in federal courts.”  Id.  The Board found “no reason to believe that section 2415 contemplated that an administrative demand for repayment of money owed would be barred by the statute of limitations.”  Id.  In other words, an agency’s demand for repayment in connection with a disallowance is not the type of “action” contemplated by 28 U.S.C. § 2415.

Similarly, in Georgia, the Board rejected the argument that section 2415 applies in administrative proceedings to bar a portion of a Medicaid disallowance.  Georgia at 5.  The Board explained that the “context of the statute, the separate treatment of administrative proceedings within the statute, and the legislative history indicate that the statute refers to actions in federal court.”  Id. (citing Cmty. Action at 7).  The Board concluded: “Since the [appellant] has not presented any authority for the application of the statute of limitations in an administrative forum, we again conclude that this limitation does not apply in cases before the Board.”  Id. at 6.

The Tribe did not address any of the Board decisions discussed above.  Nor has the Tribe presented any relevant legal authority to support its contention that ACF’s disallowance determination is the type of “civil action” contemplated by 28 U.S.C. § 1658(a).  For the reasons explained below, we hold that 28 U.S.C. § 1658(a) does not bar ACF’s disallowance determination because the text, context, and purpose of section 1658(a) make clear that it applies only to certain “civil actions” brought in federal court, not an agency’s disallowance determination and related demand for repayment.

Section 1658(a), by its terms, applies only to “civil actions.”  The term “action” is commonly understood to mean a judicial proceeding.  See, e.g., BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (interpreting “action” in 28 U.S.C. § 2415(a) to refer solely to court, not administrative, proceedings); see also Black’s Law Dictionary (11th ed. 2019) (defining “action” broadly as “[a] civil or criminal judicial proceeding”).  Moreover, a civil action is one “brought to enforce, redress, or protect a private or civil right; a noncriminal action.”  Black’s Law Dictionary (11th ed. 2019).  When ACF issued its disallowance determination, that decision did not commence a judicial proceeding.  Rather, as part of its grants administration responsibilities, ACF exercised its statutory right to demand the repayment of grant funds not expended in accordance with LIHEAP requirements.  See 42 U.S.C. § 8624(g); 45 C.F.R. § 96.32.  While ACF’s disallowance determination entitled the Tribe to pursue certain administrative appeal rights (and it may request judicial review of the Board’s decision), the disallowance determination itself is not the type of “civil action” contemplated by section 1658(a).

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Our conclusion is further supported by the statute’s use of the term “cause of action.”  28 U.S.C. § 1658(a) (requiring that a civil action be commenced no later than “4 years after the cause of action accrues”).  A “cause of action” is defined as “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”  Black’s Law Dictionary (11th ed. 2019) (emphasis added).  The Act and block grant regulations authorize ACF to disallow and demand the repayment of funds without suing or obtaining a remedy in court.  42 U.S.C. § 8624(g); 45 C.F.R. § 96.32.  These statutory and regulatory authorities do not create a “cause of action” or require ACF to seek the recovery of improperly expended grant funds in federal court; rather, ACF is entitled to issue a disallowance, which becomes final and binding, unless the grantee successfully challenges the disallowance through administrative appeals or, after exhausting administrative appeals, through judicial review.  There is no requirement that ACF initiate a judicial proceeding to establish a disallowance.

The context and purpose of section 1658(a) further supports our conclusion that it does not bar ACF’s disallowance determination.  Section 1658, like section 2415, falls under Title 28, which, as previously explained, is devoted entirely to the federal courts and actions brought in federal courts.  See Cmty. Action at 7.  In federal court, “[a] civil action is commenced by filing a complaint with the court.”  Fed. R. Civ. P. 3.  A disallowance determination is not a “complaint” and does not commence a federal court action.  Indeed, no complaint has been filed in federal court with respect to the disallowance and no “civil action” was commenced.

Still further, Congress enacted section 1658 as part of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089.  The Judicial Improvements Act of 1990 was enacted due to concerns about costs and delay related to civil litigation in federal courts.  136 Cong. Rec. S17570-02 (1990) (summarizing congressional findings).  The specific purpose of section 1658 was to eliminate the need for federal courts to “borrow” the most analogous state or federal limitations period for federal claims lacking a limitations period.  H.R. Rep. No. 101-734, at 24 (1990).  This “borrowing” created practical problems for judges and lawyers, such as uncertainty for litigants and undesirable variance among federal courts applying varying state laws.  Id.  Section 1658(a) addressed these problems “by creating a four-year fallback statute of limitations, applicable to legislation enacted after the effective date of this Act, which creates a cause of action but is silent as to the applicable limitations period.”  Id.  Thus, the legislative concerns behind the enactment of section 1658, and the overall goals of the Judicial Improvements Act of 1990, related to federal court proceedings, not grants administration.  Indeed, nothing in section 1658 or its legislative history indicates that Congress was concerned about the timing of disallowances in connection with federal grants.  We are unaware of any matter in which section 1658(a) was applied to bar administrative proceedings, or any matter in which section 1658(a) was applied to overturn a federal agency’s disallowance.

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For all these reasons, we hold that 28 U.S.C. § 1658(a) does not bar ACF’s disallowance determination because a disallowance is not a “civil action.”  If Congress had intended to limit the time in which ACF could issue a disallowance under LIHEAP, it could have done so by imposing such a limitation in the Act – not as part of a legislative initiative to reduce costs and delays in federal court.  Section 1658 does not apply to a federal agency’s disallowance determination and related demand for repayment.  Cf. Cmty. Action at 7; Georgia at 5-6.

Finally, even if a disallowance under LIHEAP were considered a “civil action arising under an Act of Congress,” section 1658 would not apply because the Act was enacted long before the enactment of section 1658.  See 28 U.S.C. § 1658(a) (specifying that section 1658 would only bar “a civil action arising under an Act of Congress enacted after the date of the enactment of this section” (emphasis added)).  Section 1658 was enacted on December 1, 1990.  See Pub. L. No. 101-650, § 313.  The provision authorizing recovery of improper LIHEAP expenditures, 42 U.S.C. § 8624(g), was included in the original statute authorizing LIHEAP, enacted on August 13, 1981.  See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 2605(g).  For this additional reason, section 1658(a) has no application in these proceedings and provides no basis to overturn ACF’s disallowance determination.²

II. The disallowance is supported by audit findings, and the Tribe has not shown those findings are legally or factually unjustified.

When a grantee appeals a federal agency’s disallowance determination, the agency “has the initial burden to provide sufficient detail about the basis for its determination to enable the grantee to respond.”  E Center, DAB No. 2657, at 5 (2015) (quoting Me. Dep’t of Health & Hum. Servs., DAB No. 2292, at 9 (2009), aff’d,766 F. Supp. 2d 288 (D. Me. 2011)).  “If the agency carries this burden, which the Board has called ‘minimal,’ then the nonfederal party (the grantee, in this case) must demonstrate that the costs are, in fact, allowable.”  Id. (citing Mass. Exec. Off. of Health & Hum. Servs., DAB No. 2218, at 11 (2008), aff’d,701 F. Supp. 2d 182 (D. Mass. 2010)).  “When a disallowance is supported by audit findings, the grantee typically has the burden of showing that those findings are legally or factually unjustified.”  Id. (quoting Mass. Exec. Off. at 11).  The Board must uphold a disallowance if it “is authorized by law and the grantee has not disproved the factual basis for the disallowance.”  Middletown Cmty. Health Ctr., Inc., DAB No. 2754, at 6 (2016) (quoting S.A.G.E. Commc’ns Servs., DAB No. 2481, at 5-6 (2012)).

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ACF met its initial burden in disallowing the questioned costs identified in the audit report.  In its determination letter, ACF explained it was disallowing the costs based on the audit finding that $56,314 in expenditures for a complete roof replacement, relocation of trailers, and construction of a handicap ramp and door were not allowable under LIHEAP.  ACF Ex. 5, at 1-2.  ACF explained that the Tribe used LIHEAP funds for “major renovations” that do not meet LIHEAP standards for “low-cost residential weatherization or other energy-related home repairs.”  Id. at 1.  Before the Board, the Tribe does not argue that the disallowance letter contained insufficient detail to enable it to respond.  We conclude, therefore, that ACF carried its initial burden to provide sufficient detail about the basis for the disallowance.

Having found that ACF met its initial burden, the burden shifts to the Tribe to show that the questioned costs are allowable.  See E Center at 5.  Moreover, since ACF’s disallowance determination is supported by audit findings, the Tribe must show that the audit findings “are legally or factually unjustified.”  Id. (citations omitted).  The Tribe provided no evidence (or argument) to show that the disallowed costs were allowable or that the audit findings are legally or factually unjustified.  Therefore, we uphold the disallowance in full.

III. The Board does not have authority to waive interest or penalties.

The disallowance letter explained that no interest would be charged on any amounts the Tribe repaid within 30 days of the date of the letter.  ACF Ex. 3, at 5.  The letter further explained that, regardless of any appeals, if the disallowed amount were not repaid within 30 days, “interest will accrue” on the unpaid amount and “will be calculated from the date of [the] disallowance letter.”  Id.  The Tribe requests that the Board waive “penalties and interest” and reset “the date of imposition of [the] disallowed costs” to the date of the Board’s decision.  App. Br. at 4-5.

“This Board has long held that we decide only the merits of disputes between parties and that we have no authority to waive a disallowance.”  White Mountain Apache Tribe, DAB No. 1787, at 5 (2001) (citing N. Cent. W. Va. Cmty. Action Ass’n, Inc., DAB No. 1604, at 5 (1996); Guam Dep’t. of Pub. Health & Soc. Servs., DAB No. 1050, at 8 (1989)).  Likewise, the Board has held that it “does not have the authority to waive any interest which may accumulate on a disallowance.”  William Smith Sr. Tri-Cnty. Child Dev. Council, Inc., DAB No. 2549, at 12 (2013) (citing Wis. Dep’t of Workforce Dev., DAB No. 2137, at 11 (2007); White Mountain at 5).  The Board explained that interest itself is not part of the disallowance and, “[o]nce the Board concludes that there is a valid debt, the Federal Claims Collection Act regulations at 45 C.F.R. Part 30 provide a separate process for the Secretary (or his designee within an operating division or regional office) to determine how the debt should be repaid.”  White Mountain at 5 (citing United Me. Families, DAB No. 1707, at 5-6 (1999)).  Accordingly, the Board has no authority to

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“waive” interest that accumulates on a disallowance or to “reset” the date that interest begins to accrue.

Finally, the record evidence does not indicate that ACF imposed any penalties on the Tribe.  In any event, penalties are also governed by 45 C.F.R. Part 30, and are thus beyond the scope of the Board’s review authority.  See 45 C.F.R. § 30.18; see also William Smith Sr. at 13 (noting that matters governed by the regulations at Part 30 are “outside the scope of the Board’s authority”).

Conclusion

For the foregoing reasons, we uphold the disallowance of $56,314 in its entirety.

Endnotes

¹ After the Board acknowledges receipt of a notice of appeal, the appellant must submit a written statement of its arguments concerning why the appealed decision is wrong (appellant’s brief) and copies of the documents on which its arguments are based (appellant’s appeal file).  45 C.F.R. § 16.8(a).  The Tribe did not submit an appeal file and failed to make any factual or legal argument concerning the other two issues stated in its notice of appeal.  Because the Tribe made no argument and provided no evidence that the disallowed expenditures complied with LIHEAP rules and regulations or that the designated “hearing examiner” failed to consider the Tribe’s positions, we reject those contentions and do not consider them further.

² The Tribe also argues that ACF “cannot argue equitable tolling in this matter.”  App. Br. at 3.  In support of its assertion, the Tribe cites to section 3731(b)(2) of the False Claims Act, 31 U.S.C. §§ 3729-3733.  ACF made no argument regarding equitable tolling or the False Claims Act.  And, having determined that the statute of limitations is inapplicable here, we need not consider these arguments further.