Richard O‘NEILL, et al., Plaintiffs, Appellants, v. TOWN OF NANTUCKET, et al., Defendants, Appellees.
No. 82-1744
United States Court of Appeals, First Circuit.
July 13, 1983
Rehearing and Rehearing En Banc Denied Sept. 8, 1983.
711 F.2d 469
The oral argument and the briefs on this appeal indicate that the decision to reduce cash and medical benefits was based on consultations and investigations with state agency representatives of the refugee assistance programs. As a result, it was the opinion of the Director that:
- (1) payments for a 36 month period had the effect of discouraging refugees from attaining self-sufficiency at the earliest possible time, and
- (2) there was more of a need for assistance, as well as more progress toward self-sufficiency, in the first 18 months of the refugees’ residence in the United States.
The record before us on appeal clearly reflects the thorough consideration that was given to the matter prior to the issuance of the challenged regulations. The question before the court is not the wisdom of the Secretary‘s decision, but whether the decision has a rational basis and is lawful under the pertinent statute. Since the regulations have a rational basis and are lawful, we will not substitute our discretion for that of the Director in determining priorities among the benefits authorized under the Refugee Act of 1980. Neither may we direct that the Secretary make payments for a period that Congress explicitly left to his discretion.10 Moreover, we have been reminded by the Supreme Court that “[t]he interpretation put on the statute by the agency charged with administering it is entitled to deference.” Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31-32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981).
Since we hold that the Secretary‘s decision to issue the challenged regulations which reduce plaintiffs’ benefits did not represent a “clear error of judgment” requiring this Court to overturn his action, (Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)), we affirm.
Affirmed.
M. Robert Dushman, Boston, Mass., with whom Warren D. Hutchison, and Brown, Rudnick, Freed & Gesmer, Boston, Mass., were on brief, for plaintiffs, appellants.
Paul R. DeRensis, Boston, Mass., with whom Susan Hadley Williams, and Powers & Hall, Boston, Mass., were on brief, for defendants, appellees.
Before ALDRICH and BOWNES, Circuit Judges, and WYZANKSI,* Senior District Judge.
WYZANSKI, Senior District Judge.
The issue here raised is whether the defendant Town of Nantucket violated the due process clause of the
At their January 6, 1982 meeting, the town‘s Selectmen, being of opinion that they had failed in 1981 to comply with the aforesaid statute, voted that the 1981 license was of no effect, but that the plaintiff O‘Neill could continue operating under that 1981 license until the Selectmen could reconsider O‘Neill‘s licensing application in light of procedures which the Selectmen newly promulgated in 1982.
Notified of that vote, Caldwell, acting on his and O‘Neill‘s behalf, and stating that the plaintiffs were not waiving their rights under the 1981 license, applied, in accordance with the new procedures, for a new license for O‘Neill.
On January 13, 1982 the Selectmen held a hearing on that application. At the hearing the plaintiffs contended that the proceeding was a revocation hearing; the town claimed that it was a hearing on an application for a new license. At the hearing the Selectmen received such oral testimony, letters, and other matter as was offered and also heard the plaintiffs’ counsel‘s arguments favoring the application.
On January 20 the Selectmen heard further evidence and also argument on each side of the controversy, and then voted both to deny the O‘Neill application and to schedule for February 10 a hearing on the proposed revocation of O‘Neill‘s December 31, 1981 license.
In a letter dated February 5, 1983, the Selectmen set forth at some length their reasons for denying the application. It is not in this case necessary to explicate those reasons except to state that they referred to public policies favored by the town.
Meanwhile in a January 28, 1982 letter the Selectmen gave two grounds for a proposed order revoking the O‘Neill 1981 license: first, that the 1981 license had violated technical descriptive requirements prescribed by
At the February 10 hearing the plaintiffs did not appear, and the Selectmen revoked O‘Neill‘s license.
On March 21 plaintiffs filed this action in the United States District Court, 545 F.Supp. 449. Relying on
The complaints are solely that the defendants failed to accord the plaintiffs their alleged procedural right to cross-examine the persons on whose statements the Selectmen relied and that the defendants took into consideration their own knowledge of the locale and the general situation. No complaint is made that as a matter of substantive law the town had no power to revoke a license during the term for which it was granted; or that the policy reasons given by the Selectmen for their revocation violated the law of Massachusetts or the United States Constitution or laws.
The plaintiffs sought and were denied a preliminary injunction. Then they and the defendants each filed opposing motions for summary judgment. The court denied plaintiffs’ and granted defendants’ motion.
The only one of the reasons given by the court for its action which we need consider is the district court‘s decision that even if it were to be assumed that the plaintiff O‘Neill‘s license constituted a property interest protected by the due process clause,
The plaintiffs do not contend that the Selectmen failed to give them appropriate notice both of the hearings and of the policy grounds on which the town proposed to revoke O‘Neill‘s 1981 license.
What the case at bar involves is the withdrawal of a license by a state-authorized licensing board which exercises the power to determine whether at a particular place within a town a person shall be permitted to continue to operate a particular kind of amusement device. We have just been reminded by Marshfield Family Skateland, Inc. v. Town of Marshfield, 389 Mass. 436, 447-449, 450 N.E.2d 605 (1983) that “the State‘s interest in regulating commercially operated automatic amusement devices is no different from the State‘s interest in regulating billiards, bowling, home video games, juke boxes, golf, baseball and other forms of recreation and amusement... [It is a form of] legislative decision making.”
Whether to permit the continued use of premises within a town or other political territorial area is a question of zoning or akin thereto. For more than half a century it has been recognized that in determining on policy grounds zoning prohibitions or generic limitations, even those which preclude continued use of premises in ways previously permitted, a local administrative authority makes a political or legislative not a judicial decision, that is, it decides questions which, however much they may affect individuals personally, are nonetheless primarily impersonal questions of community policy of a type traditionally entrusted to a legislative body rather than to a judicial tribunal.
Not only from an historical standpoint but from a perhaps more philosophical view we are led to the conclusion that a zoning or quasi-zoning question does not constitutionally require anything like a judicial hearing. The question as to the purposes for which in the public interest a parcel of real property may be used does not find its resolution by ascertaining precise facts.
There would be an inherent hypocrisy in pretending that examination and cross-examination of witnesses do or should dictate the purposes for which premises may be used. (We need not consider whether when the purposes are permitted by an authority, then the choice of particular personalities to take advantage of the permitted purposes requires a judicial rather than a legislative type of hearing.)
Where, as in the case at bar, the zoning authority has given affected parties notice and an opportunity to be heard, and has acted upon openly declared impersonal policy grounds and those grounds are not challenged as being substantively impermissible, the parties who have been adversely affected have had all and perhaps more than all the procedural due process guaranteed to them by the Fourteenth Amendment.
Our analysis of the type of agency action which is here involved shows, without need of our elaborating the obvious, the complete irrelevance of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) and cognate cases upon which the plaintiffs rely. Those cases involve ad hominem administrative determinations of whether a particular individual has gained or lost a right he personally claims under a rule or policy adopted by a legislature or an administrative agency acting in a legislative or policy-making function.
Affirmed.
BOWNES, Circuit Judge (concurring).
I agree with the result reached by the majority, but write separately to ensure that the majority opinion is not misread as holding that a licensee has no protection under the due process clause.
The majority correctly notes that on January 6, 1982, the Nantucket Board of Selectmen voted that licenses issued in late 1981 for operation of video games in 1982 did not comply with
It is my understanding that the Board retreated from its initial position that plaintiffs’ license was invalid under the licensing scheme in place prior to the January 6 amendment. Instead, the Board retroactively applied the new regulation, which required it to conduct a public hearing to determine whether plaintiffs’ license should be revoked. Under these circumstances plaintiffs were not denied due process of law.
* Of the District of Massachusetts, sitting by designation.