*1 ROBBINS, al., Appellants et Robert REAGAN, et al.
Ronald ROBBINS, et al.
Robert al., REAGAN, Appellants. et
Ronald 85-5864, 85-5943.
Nos. Appeals, States Court
United Circuit.
District of Columbia
Argued Sept. 10, 1985.
Decided Dec. *2 Nickles,
Peter J. Gregory with K. whom Roisman, Tucker and Florence W. Wash- D.C., ington, brief, were on for cross-appellees in No. 85-5864 and in No. 85-5943. Marshall, Atty.,
Edith S. Asst. U.S. diGenova, Joseph Atty., E. whom Royce Lawrence, Craig C. Lamberth and R. Grinstead, Attys., Asst. U.S. Darrel J. Counsel, Asst. Gen. and Ellen Dickstein Kominers, Atty., Dept. of Health and Hu- Services, D.C., Washington, man were brief, appellees in 85-5864 and for No. J. cross-appellants No. 85-5943. Michael D.C., Atty., Ryan, Washington, Asst. U.S. appearance Reagan, et also entered an al. ROBINSON, Judge,
Before Chief BORK, Judges. WALD and Circuit go beyond resolution of the PER lees the Court CURIAM. Opinion dispute. present judgment concurring in the Opinion filed dissenting part by Circuit part Background I. Judge BORK. began in controversy The current Decem- *3 De- petitioned CCNV the ber when PER CURIAM: and Human partment of Health Services’ ongoing contro- part appeal This Force the Homeless to Federal Task on surrounding tragic growing the versy the then-vacant CCNV utilize allow of in the District problem of homelessness Streets, N.W., building and D as at Second by the the decision At issue is Columbia. for homeless. The temporary shelter the a through Depart- the government, federal (“GSA”), Administration Services General Human Services of Health and ment building, permit a owns the issued which federally-owned build- (“HHS”), close allowing building use of the as HHS N.W., Streets, D which ing at Second then issued a three-month shelter. HHS Community for Creative appellant, govern- District to the of Columbia license (“CCNV”), operated as a Non-Violence ment, assigned license which to CCNV. January homeless since shelter for January opened shelter on 1984. had com- government The federal 1984.1 subsequently requested that CCNV con- of 1984 to in November mitted itself kept open on a basis. permаnent shelter be This model shelter. facility into a vert indefinitely HHS’ license. extended GSA fed- and the when CCNV litigation ensued li- offered to extend District’s HHS reach unable to government were eral well, government but cense repairs neces- extent of agreement Thereafter, infor- the offer. HHS refused commitment. sary to fulfill this operation mally CCNV to continue allowed of the District seek reversal the shelter. Appellants appellees’ motion for sum- grant of Court’s efforts to secure then commenced CCNV claim that mary judgment appellants’ on building. The Chair- funds to renovate arbi- to close the was the decision Force, Harvey of the Federal Task Dr. man thus capricious and violative trary and Vieth, request for fed- R. refused CCNV’s (“APA”), Procedure Act the Administrative funds, maintaining that homelessness eral seq. Appellants 701 et 5 U.S.C. § governments responsibility of local prom- challenge the dismissal their also support requests renovation and that government estoppel claim that issory to the District should be directed services reversing pledge its precluded from Snyder Mitch re- government. Plaintiff Appellees contend a model shelter. build commencing Septem- a fast on sponded by lacked the District Court 15, 1984. ber claims, APA these to consider days, and HHS reached After 50 CCNV nonreviewable, Dis- and that the are claims agreement would apparent —renovations authority requir- its trict Court exceeded expense. Marga- completed at federal locating adequate appellees to assist in ing HHS, Heckler, then ret M. the Second and shelter for alternative Reagan President informed residents. Streets transform the fa- requested that HHS had physical shelter struc- cility the Dis- a model reached “into affirm the result We in the District to house the homeless except extent ture to the trict Court Secretary Heckler outlined requirements appel- of Columbia.”2 imposed Snyder, Rea- Robbins v. of Mitch Declaration Appellants several inhabitants also include 1. (filed (D.D.C.) gan, two June as well as Civ. No. 85-1963 and D Streets shelter the Second 1985), (J.App.) Appendix 333. of CCNV. members Joint Services and Human Health Statement (Nov. 4, 1984), B to Exhibit Secretary Heckler specific goals.3 (D.D.C.) (filed seven renovation HHS of- No. 1985), 85-1963 June funding reproduced determined that Supplemental ficials later Appendix Joint project the shelter would be drawn from appropriated Community
monies for the On June 21. Dr. Vieth announced Services Block Grant Act.4 intended close the Emergency repairs completed were be shelter. Three reasons for the decision February tween December 1985 were announced: deteriorated condition $90,000. approximately at a cost of building, How cooper- CCNV’s refusal to ever, cooperation by Snyder's induced ate with the plan GSA renovation and the Disagreement fast was short-lived. organization re absence of an willing to as- garding scope of the federal commit sume responsibility for operation of the apparent ment became when CCNV Appellants sub shelter. sought and were plan govern granted mitted renovation to the temporary restraining order bar- *4 ring ment. The GSA estimated that the appellees CCNV from posting notices of the proposal would cost million.5 HHS future closing $10 of shelter. On June they agreеd ficials insisted had never complaint to filed amended chal- any beyond seven specific lenging renovation government’s Appel- decision. goals Secretary or, Heckler had announced— lees then filed a motion to dismiss in the government projected alternative, renovation that the summary judgment. for After as costing formally briefing argument million. HHS motion, au $2.7 and of the expenditure thorized the million $2.7 on District Court remanded the matter to May provided HHS, 1985. CCNV was directing with to conduct no- government’s plan renovation tice proceedings after and comment and to threatening to responsibility present abandon analysis for a reasoned for its decision. operation of the July shelter. On the District Court issued a temporary restraining order, enjoining clo- subsequently protested CCNV the al sure of pending completion the shelter leged inadequacy government’s of the reno proceedings remand and subse- plan vation and filed suit in the District quent in the review District Court. original Court on June 1985. com plaint sought compel to July 31, the defendants to On after analyzing the com- perform the HHS, all renovation work CCNV be ments filed with Dr. Vieth recom- necessary lieved was Baker, create a model mended D. to Charles Undersecre- govern tary HHS, shelter. CCNV demanded that the that the shelter be closed but operation ment take delayed over shelter if it August closure be until willing 31, 1985, was not on renovate this basis. “in order permit the Task ¶¶, 28, Complaint Reagan, Robbins v. Civ. Force to all exhaust efforts reasonable specific by Secretary regional 3. The areas significance identified ties of or national related purposes” Heckler were: to the the Act. U.S.C. 9910(a)(2) § HHS officials concluded Adequate securing per- 1. for locker facilities project qualified "special pro- as a belongings utilizing sonal of those the shelter. gramO private, locally of assistance initiated adequate space 2. Provisions shelter for community development programs spon- which separate quarters. men’s women’s enterprises providing employment sorQ Adequate prepa- 3. for kitchen facilities food development opportunities business for low-in- ration. area,” eligi- come residents and thus Laundry facility. 4. room funding 9910(a)(2)(A). ble for under See also Emergency 5. first aid station. 9904(c)(t)(B)(iv) (states (1982) U.S.C. re- pro- 6. Consultation rooms for service social quired certify Community Services Block viders. Grant Act are used to funds assist low-income prevention sprinkler Adequate sys- fire participants "adequate housing to obtain and a tem. environment”). living suitable Id. gives Secretary discretionary plan 4. That statute 5. CCNV maintained that its would cost authority expend "ongoing funds for $5 activi- million. arrangements.” (D.C.Cir. Reagan, Aug. 30, shelter No. 85-5864 make alternative suggested that the million 1985) (order). $2.7 Dr. Vieth J.App. in the relocation effort. be utilized During pendency appeal, of this Undersecretary adopted Baker 24-25. government its continued efforts to locate emphasized recommendations and these alternatives the Second and D Streets that: ultimately shelter. step crucial that must be taken the most awarded million to the $3.7 D.C. Coalition bring to conclusion is to successful ... for the Homeless to assist in the renovation with Task efforts [the Force’s] operation of two shelter facilities. A government of the District of Columbia 600-bed, temporary men’s shelter been providers to assist them and local shelter A finalizing already discussed established Anacostia. 60-bed shelter plans identify ready and make for oc- them to operating women now on Florida arrange- cupancy alternative shelter Avenue, opened N.W. While amidst con- ments for the residents of the shelter at controversy, siderable these facilities are Street, N.W. 425 Second food, providing much needed health care Id. at a time of critical need. F.Supp. 19,1985, 616 August On proposed with the Dissatisfied alterna- dismissing opinion issued Court tives, petitioned the CCNY District Court appel- summary judgment granting discovery October authorize *5 In an order claims.6 appellants’ all of lees on evidentiary an hearing and conduct Court District opinion,the accompanying adequacy the alternative facilities. On “reclaim the government authorized 15, 1985, post- the District Court October had government provided shelter” poned appellants’ consideration motion long and interim appropriate first “devise[d] government until the announced a definite in the homelessness to eliminate range plans closing Although date for the shelter. Capital____”7 Nation’s government yet had to make such an an- 20, 1985, August On this court denied nouncement, on November appellants’ emergency expedited motion District ruled that the shelter Court could appeal prejudice appellants’ without 21, p.m. be closed as of on November 5:00 right, stay if the District Court denied a stayed temporarily 1985. This court pending appeal, expedited to move for con- 20, District Court’s оrder on November stay in sideration of such a this court. The 1985. appellants’ Court then denied mo- stay pending appeal August on tion for petitioned CCNV has also this court to 26, 1985, appellants moved this court for a require government complete emer- emergency stay pending appeal gency repairs to the Second and D Streets argument. on Argument was heard Au- shelter. 1985, gust 29, day this and the next per denying curiam order the mo- issued expediting the The appeal.
tion and denial II. Section 1331 Jurisdiction Over represen- “appellees’ on in-court based The APA Claims they interpret tation that the District Court govern- preventing order as the federal has raised two threshold reclaiming building ment from and clos- challenges claim that the deci- CCNV’s ing appellees the shelter until have made sion violates the APA: to close the shelter specific arrangements for suitable alterna- first, Court did not that the District every person’ ‘each tives for who claim; subject jurisdiction matter over currently utilizing the v. shelter.” Robbins second, subject the decision is not (D.D.C. (D.D.C. Reagan, Reagan, 6. v. Civ. 85-1963 7. Robbins v. Civ. No. 85-1963 Robbins No. 2, 19, 1, 19, 1985) 1985) (memorandum) (order) J.App. Aug. J.App. Aug. at at 42 judicial as ing review there is no federal question law Sanders that “federal juris- apply resolving controversy.8 diction under 28 U.S.C. specifi- § [was cally] precluded Security Social [the jurisdiction- District Court limited its 109, Id. at at S.Ct. 986. The Act].” inquiry al in this case determinations of Court thus declined to review the or whether the Tucker Act9 the doctrine of decision Congress specifically because sovereign immunity precludes Af- review. precluded judicial review particular of that answering questions ter both nega- in the type of decision under the Security Social
tive,
presumed,
the District Court
without
109,
Act.
at
Id.
43
rights
case where
involved are
diction,
review
action
rooted
power to
28
under
U.S.C.
state law. This federal-state tension is
APA exists
under the
case,
(emphasis sup
notably
present
n. 30
in the
Id. at 966
absent
which
1331.”
§
allegedly promised
Association
National
concerns action
plied). See also
611,
(D.C.
FTC,
acting
v.
617 F.2d
withheld
a
official
federal
undеr
Advertisers
Cir.1979)
question juris
(“[gjeneral
solely
federal
from a
authority derived
federal
gives the district courts the
regard
appropriated
...
diction
statute with
funds
absent a
review
action
power
by Congress.
only
Federal law is not
statute”);
case,
Committee
preclusion
review
direct element in this
is
Blumenthal,
Employment
Full
element.
(D.C.Cir.1979)(juris
1065 n.
F.2d
Similarly,
the case
bar involves the
is
action
found
challenged agency
diction
law essential
kind
federal
federal
1331).
in Section
jurisdiction. Again, the case law reveals
reached the identical
has
Professor Davis
primary
inquiry
focus
is the
Administrative
Law
his
conclusion
roles of
and federal law.
relative
state
Un
one is
As Davis states: “[N]o
Treatise.
like
factor
cases where this
has indicated a
action of
of reviewable
ever denied review
jurisdiction,
lack of federal
this action does
a court
want of
agency for
a federal
problems of
present
state laws that
because,
juris-
unless exclusive
integrate
rely
on federal
or
standards
on some oth-
is conferred
diction to review
guidelines. See,
refer to federal law for
dis-
er
withdrawn
statute]
court [or
e.g.,
v. Division
United Airlines
Indus
jurisdiction to review
always
trict
(9th
F.2d
Safety,
trial
Cir.
under 28
administrative action
federal
denied,
1980),
cert.
S.Ct.
1331____”
Davis,
4 K.
Adminis-
U.S.C.
§
(2d
23:3 at 128-129
Law Treatise
trative
Finally, the federal claim raised
1983).
ed.
one. The
action is
substantial
substan-
this result is
support for
Additional
easily
arguably
met—an
tiality standard is
application of three factors courts
found in
proceed.
plausible claim must be allowed
deciding
traditionally considered
Wright
supra,
3564 at
70-71.
Miller,
&
federal
arises under
law:
whether an action
Hood,
327 U.S.
S.Ct.
Bell
(1)
case and the
relation
between
(1946),
Supreme
45 Commodity Trading Davis, Cardoza v. Futures Law Treatise K. Administrative 5 (7th Comm’n, 1549 768 F.2d Cir. (2d 1984). decisions not to Since ed. 1985). difficult sub- action are enforcement take review, it is reasonable judicial for jects Act The Administrative Procedure degree of extra substantive require some requires courts to “hold unlawful and set a focus and give guidance to action, findings, agency and conclu aside review. (A) its capri basis arbitrary, found sions be— discretion, cious, of or otherwise an abuse amplified of an requirement This law.” not in accordance with 5 U.S.C. controlling of standards level discernible 706(2). the absence of clear statu While applied, not how agency’s discretion is tory guidelines might hamper at times a analogous ever, not agency action where ability agency to deem action con court’s is involved. decisions enforcement law, trary always it need not do so. strongly sup presumption those cases statutory there no clear Even when are thus, review is reviewability, and ports are guidelines, courts often still able to affirmatively Congress available unless statutory discern from the scheme a con in a man the action discretion commits gressional pursue general intention to not feasible. See makes review ner that goal.13 agency If the action found not to Gardner, U.S. Abbott Laboratories reasonably goal, consistent with 1507, 1510-1511, 136, 140-141, S.Ct. then courts must it. The invalidate showing (1967) upon a (“only L.Ed.2d 681 grants mere fact that a statute dis broad of convincing evidence’ a con ‘clear and of agency to an does not render the cretion legislative intent should courts trary completely decisions nonreview review”). judicial restrict access agency able under the “committed to dis course, strong of re- presumption Of exception law” unless the statu cretion viewability typical agency scheme, action is tory together taken rel other materials, of a kind agency absolutely action is no provides absolute. Some evant play legit- no inherently guidance can as to how that discretion is to be courts reviewing As the Seventh exercised. imate role in it. noted, re- Chaney simply
Circuit has Moreover, agency itself can often affirmed through provide judicial a basis for review 701(a)(2) recognized position that regulations or an- promulgation applies policies. agency in certain circumstances where Once an nouncement unqualified decide whether given courts are course is the has declared discretion____ implementing agency way has abused most effective scheme,14 agency to the list of ac- courts are entitled Chaney statutory added review, de- judicial closely such examine action that unsuitable tions foreign policy. from this stated See Motor Department parts action as State Association affairs, Board deci- Federal Reserve Vehicle Manufacturers Insur- rates, Farm Mutual Automobile the class State setting sions interest 40-44, Co., 103 S.Ct. 463 U.S. ance decisions. nonenforcement course, policies carry out the com- congressional it will examining enactments for 13. “In is, then, governing by Congress. priorities’ en There at least to it of ‘substantive mitted evidence discretion, perform policies should presumption courts will be carried forcement those ” statutory identifying roles of their traditional goals is adhered to.’ Mo- if the settled rule out best considering “background under State Association v. tor Vehicle Manufacturers standings' substantive statute. inform the Co., Automobile Insurance Farm Mutual may supply ‘law often sufficient These sources 2865-2866, 41-42, 103 S.Ct. Term, Court, Supreme apply’ ..." Atchison, (1983) Topeka (quoting & L.Ed.2d 99 Harv.L.Rev. 120, 275 Trade, Co. v. Wichita Bd. Santa Fe Railroad 2374-2375, 807-808, 412 U.S. embodies the “A course of behavior ‘settled *9 (1973)). 350 37 L.Ed.2d that, by pursuing judgment agency’s informed 46 2865-2867,
2856,
(1983);
Citizens to Preserve Overton Park v.
ing
CAB,
Micro Devices v.
Advanced
742
F.2d Volpe, supra,
410,
These examples serve to demon of a: that, agency statute. Since an generally specific strate even statutory without against violation, cannot guidelines every act each and controlling the exercise of dis only cretion, agency courts can balance all of the meaningful role to play reviewing agency deciding expend various factors in action. The how to agency provision Here, contrast, “committed to discretion” limited resources. “ very exception’ Heckler ‘a narrow ”. itself had committed the funds Chaney, supra, (quot- in question renovate shelter.15 Re- Judge concurring/dissenting opinion Bork’s the monies elsewhere and close the Indeed, focusing reviewing. maintains that we are it is decision on a "non-issue" we are by addressing appellees through- government’s decision have themselves maintained obligated repair $2.7 out that the million $2.7 withdraw the commitment suffi- million original Instead, pledge, cient to redeem their and it was the Second and D Streets shelter. he contends, only help CCNV after refused its plaintiffs' we should focus Thus, government moved to close the shelter. request government’s origi- that we enforce litigation shelter, realistic view of the course of this pledge to nal make a model and as to action, government’s leads us focus on rescission clearly apply. there is no law to We $2.7 million commitment and result- complicated beginning do not think scenario ant to close decision the shelter as the critical complaint progressing through with the decisions on review. proceedings including Court a remand agency’s to the notice comment on its As to CCNV’s contention announced intention close the shelter and commitment create a model shelter constitut- obligation, closely spend $2.7 rescind its million ed $2.7 relat- a decision to far more than mil- lion, right, easily ed agree Judge actions in their own can so we Bork that is no there alleged characterized. apply. The District Court’s decision it- Since law commitment self specific program, focused on the decision allocate was not tied to statute or *10 rescission, therefore, long regarded special prov- does not been as the viewing the Branch, ince of the that court should Executive inasmuch implicate the concern it is the charged by to funnel its efforts in executive who is agency not force Rather, the court is Constitution to ‘take Care that the direction. Laws be one faithfully U.S.Const., degree fidelity II, ensuring a limited executed.’ Art. simply Obviously, decision how to use its 3.” Id. agency’s own at same similarity prosecu- Human Devel- does not exist Cf. between resources. California Brock, tor’s opment Corp. agency’s F.2d decision not to indict and an (D.C.Cir.1985) does not decision to commitment. (Chaney 1048 n. 28 rescind a agency reasonableness of bar review Review of the factors in described Cha- agency under no action if the even ney being demonstrates that the decision it). duty to undertake initial challenged here is not at all similar in rele- respects challenged that vant Chaney in also reasoned to the decision in The Court Thus, Chaney. beginning enforcement action rather than not to take with decisions presumption nonreviewability generally not involve exercise of “coer- which do liberty prop- or must be a somewhat power height- cive over individual’s rebutted erty infringe upon not ened level of discernible standards rights, and thus control- d[o] ling discretion, pro- begin upon presump- courts are called we areas that (emphasis origi- reviewability, tion of which is tect.” at 1656 rebutted nal). contrast, showing commit- an affirmative that By rescissions of stat- ments, they technically not im- ute’s allocation of discretion is so broad whether property simply interests as courts have no plicate liberty and standards to apply. the fifth fourteenth defined under amendments, much more influ- exert dirеct question of whether there exists law or entities to whom ence on the individuals apply particular allega focuses repudiated commitments were made. Sunstein, plaintiff. tions See Re Chaney distinguished viewing Agency also Inaction Heckler The Court After agen- Chaney, 52 it from one where the U.Chi.L.Rev. 658-659 case before case, challenged
cy action “when an CCNV has takes affirmative since enforce, agency’s arbitrary and capri action as agency does act to that action It judicial alleg cious and an of discretion. provides itself a focus for review.” abuse es, alia, agency original). Apparently, the inter that the made its (emphasis Id. obligation judicial review of decision rescind its based on Court was concerned impermissible an irrelevant factor—an necessitate a fo- agency non-action would imosity Brief for pri- Ap toward policy CCNV. cusless evaluation Moreover, alleg at CCNV pellants are not role for which courts orities—a contrast, must be explained, agency’s the Court es action invali By suited. on reasons action dated because it was based specific when is a affirmative there supported by not fact. reviewed, reviewing can were at all Id. at 17-28. on the limited issue adequately focus prior obligations
hand. Rescissions nothing challenges There is about these cate- the “focused action” clearly fall into us that the court lacks convinces gory. manageable deal with the is- standards course, allegation raised. pointed sues Of Finally, Chaney the Court impermissible considered agency’s deci- the similarities between that some factors are presupposes factors sion to take enforcement action impermissible. possible It is contem- prosecutor in “the of a the execu- decision in its allocation of plate a so broad indict—a decision which statute tive not to branch By do we find any manageable guide- contrast announcement. manageable we unable to discern are regarding $2.7 million controlling vis-a-vis limits discretion lines 47-49. allocation. See text subsequent of the model shelter treatment infra *11 no than discretion that factors —other un- adequate without foundation. 5 U.S.C. ones—are off For constitutional limits. ex- 706(2). Thus, given fact the that § the ample, provide statute to the Presi- were a statute limits the uses for which the funds dent to “use it with funds as he wishes” is used, can be we see no barrier to our imagine hard to that there could be assessing whether the decision impermissible or irrelevant factors. The was based on factors that are relevant to Secretary which the statute under made goal. original commitment to renovate the A second factor that reinforces our con shelter, however, is not nearly as broad and clusion is the agency’s original effect of the standardless. commitment of funds to renovate the shel U.S.C. authorizes the Secre- § making commitment, ter. the Sec grants, loans, tary guarantees to make or retary presumably determined that provided they pur- are “related to grant way was best to fulfill pur poses” Community of the Services Block poses of the Community Services Block Grant Act.16 While might this limitation Act. In rescinding Grant that determina specific enough pre- be to rebut tion, clеarly compelled to sumption nonreviewability of applicable in adequate give reasoning for the dramatic enforcement cases under we Chaney, think change of course. This has long held provides guidance given it sufficient agency’s change that an in direction from a a strong presumption fact that of re- previously danger announced intention is a viewability Congress controls here. When signal triggers to scrutiny ensure that purpose grant limits the for which a can be agency’s change of course not based made, presumed it be can that it intends on impermissible or irrelevant factors. See that the dispersing agency make its alloca- FCC, National Black Media Coalition v. tions solely based on factors to related 342, (D.C. 775 F.2d 354-356 and nn. 16-17 goal implementing of statutory the stated Cir.1985); International Ladies’ Garment fashion, purposes in a reasonable rather Donovan, 795, Workers’ Union v. 722 F.2d taking than impermissible irrelevant or — (D.C.Cir.1983), denied, 812-813 cert. factors clearly into account. It would be -, 93, U.S. impermissible, example, agency for the (1984); generally see Motor Vehicle Manu- to rescind a commitment it devel- because Association v. ops personal State Farm Mu- original animus toward the facturers Co., tual recipient supra, Automobile Insurance because the Secretary’s friend 40-44, 103 S.Ct. at become a member of 2865-2867. the new benefi- ciary organization. correctly stated, As the District Court Similarly, the Adminis- requirement trative Act is not require officially Procedure would us to limited Secretary's promulgated regulations. invalidate the it action were See Massachu- be based on factual determinations that are setts Fair Share v. Law As- Enforcement "purposes” living of the Act can be discerned suitable environment.” U.S.C. by examining legislative 9904(c)(l)(B)(iv). history, as well as The Act also authorizes al- types expenditures emergency of authorized the oth- provi- locations "on an basis for the provisions services, Report er supplies of the Act. The Senate such sions of nutritious foodstuffs, services, purposes one may demonstrates that of the was to and related as be nec- fund essary "services and activities have that will to counteract conditions of starvation potentially impact’ major ‘measurable among poor." and malnutrition U.S.C. poverty," 9904(c)(1)(C). S.Rep. the causes specific provisions 98th No. While these states, Cong., reprinted they 2d Sess. in 1984 U.S.Code relate funds allocated to none- Cong. "provide Si pur- Ad.News and to one theless serve evidence that of the struggling those poses Community assistance to Americans Block Services Grant cycle poverty.” reprinted provide break the Id. at Act was aid to the homeless. At the time, Cong. they & every U.S.Code Ad.News at Similar- same also that not demonstrate ly, specifically pur- the Act authorizes use funds use limited would consistent with the provide designed poses "to Community activities to assist low-in- Block Services Grant 9901-9912; participants including elderly poor generally come ... Act. See 42 U.S.C. see §§ housing adequate obtain and maintain and a also note 21. infra Administration, “entirely F.2d failed to consider sistance (D.C.Cir.1985) important problem, in the (“precept aspect rooted an offered explanation abhorrence its concept play of fair dеcision that runs discrimination, is not agency, ambit unjust counter the evidence before the for- attaining the status of implausible so limited rules or is could not be in policy the shift regulations”). Given mal ascribed a difference view or the recognizing difficulty no expertise.” product we Motor Ve- always courts have role that traditional hicle Association State Manufacturers *12 is con- ensuring agency in played Co., Automobile Farm Mutual Insurance way considers tinuing to act in the that it 43,103 supra, 463 S.Ct. at 2867. U.S. of its statu- implementation the best short, to be changes the court must ensure that tory mandate. policy are carried out “for rational rea- sufficiently explained.” sons that are Ven-
IV. Review of
The
To
Decision
FCC,
v.
F.2d
Broadcasting Co.
765
tura
The Shelter
Close
(D.C.Cir.1985).
184, 190
of its
government’s
rescission
Appellants maintain that the decision to
publicized commitment to renovate
well
contrary
pur-
close the shelter was
to the
subject to
D
shelter is
and
Streets
Second
Community
of the
Block
poses
Services
that,
given
ensure
judicial review to
no
Act
there was
basis for the
Grant
Community
Block
of the
Services
guidance
closing
agency’s
stated belief
Act,
capri
“arbitrary,
not
was
Grant
coupled
would be
with the
of ade-
location
discretion,
cious,
or otherwise
an abuse of
quate
Appellants also con-
alternatives.
U.S.C.
with law.” 5
accordance
was
government’s
tend
decision
706(2)(A).
by
enunciated
the Su
As
impermissible
on an
irrelevant
based
and
Vehicle
preme Court in Motor
Manufac
personal animus
CCNV.
factor:
toward
v. State Farm Mutual
turers Association
review of the record confirms that the
Our
Co.,
29,
463 U.S.
Insurance
Automobile
рersonal
agency did
out of
animus
not act
2866,
2856,
42,
factual
adequate
toward CCNV or without
agency
(1983),
satisfy
standards an
these
support, but
acted
well articu-
rather
for
satisfactory explana
must “articulate a
arbitrary
reasons
were neither
lated
previ
any change
from
tion”
course
capricious.
nor
This
ously
policies
stated
or intentions.
reversing
government’s reasons for
“that
requirement
demanding
is more
than
deciding
to renovate and
the commitment
agency
may
required when an
which
articulated
instead
close the shelter were
Id.; see
does not act in the first instance.”
31,
Undersecretary
July
by
Baker
his
v.
Media
also National Black
Coalition
J.App. 110-112.
1985 memorandum. See
FCC,
(D.C.Cir.1985);
775 F.2d
354-356
deplorable
The first reason cited was the
FAA, 758
691-
Corp. v.
F.2d
Airmark
facility which, according to
of the
(D.C.Cir.1985);
condition
Fair
692
Massachusetts
Undersecretary, rendered it unfit
Law
Ad
Assistance
Share
Enforcement
ministration,
(D.C.Cir.
as a shelter for
homeless. Given
F.2d
use
providing
“ade-
statutory objective
1985);
Corp.
Boston Television
Greater
living
(D.C.Cir.1970),
housing
a suitable
environ-
FCC,
quate
cert.
444 F.2d
doc-
to the
and the well
denied,
29 ment”
homeless
S.Ct.
review,
deplorable
conditions
(1971).
evidence
Upon
umented
L.Ed.2d
shelter,18
that this
say
finds
we cannot
if it
at the
invalidate
action
must
seriously
of the
9904(c)(1)(B)(iv)
condition
deteriorated
42 U.S.C.
plumbing
"grossly inadequate”
and sanitation
conditions in the
HHS concluded that
facilities;
adequacy
space for from
of the
threat"
presented a
and immediate
"substantial
individuals,
poor
the evidence of
550-650
safety
residents.
health
of the shelter
to the
maintenance;
cleaning
housekeeping,
based,
part,
on a Public
conclusion was
This
roaсhes;
evi-
overwhelming
infestation
inspection which documented
Health Service
safety
invocation of the health and
inter-
erator had been identified. HHS was
occupants
impermissible.
ests of the
therefore faced
prospect
with the
spend
Moreover, Undersecretary Baker’s reliance
ing
million
facility
$2.7
to renovate a
no
on this
cannot be faulted for
consideration
willing
one was
operate.
risk,
This
com
failing
danger
to take
of the
to the
account
bined with other factors such as the fast
closing
homeless
result from
that would
approach of winter and the doubt as to
coupled
the shelter as the
its deci- whether renovations
completed
could be
sion to
close with a commitment
locate prior
onslaught
weather,
to the
of cold
led
offering
alternative facilities
conditions su-
the agency to seek alternatives to contin
perior to those at the
Second and Streets
ued use of the Second and D Streets facili
facility.19
Consistent with
ty.
alternatives,
commitment to locate
closure
The third
reason cited Undersecretary
repeatedly delayed
of the shelter has been
perceived
Baker was the
inappropriateness
as the Anacostia
Florida Avenue facili-
of federal
operation
involvement with the
ties were renovated and staffed.
commenting
shelter. Without
The second basis for the decision was the
*13
political
problem
issue of whether the
of
operator
lack of a
willing
suitable
to com
homelessness is best addressed at the fed-
maintaining
mit
facility. Ap
itself to
the
level,
eral or local
it is nоt difficult to
pellants
agency’s
characterize the
reliance
discern the basis for
Undersecretary’s
the
on this consideration as evidence that the
concern
this instance. CCNV had al-
agency acted out of animus
toward
ways operated
facility
and was threat-
CCNV.20 This contention fails to take into
ening to abandon
operator
it. No other
account CCNV’s announcement that it was
had surfaced
step
into CCNV’s shoes
unwilling
operating
to continue
the shelter
and there existed a real threat to the wel-
government agreed
unless the
to meet
occupants
fare of the
of the shelter. At
CCNV’s renovation demands. This ultima
time,
the same
Community
Services
government’s
tum forced the
hand. The
Act,
Block Grant
which was to fund the
repeatedly
had
ig
federal role in
Despite
project, provided
nored calls for assistance.
the shelter
efforts
identify
community groups
only
expenditures
local
that
limited
on a short-
breach,
might step
op
Thus,
into the
no suitable
term basis.21
it was reasonable for
infestation;
See,
presence
Hills,
e.g.,
dence of earlier rat
F.Supp.
ner.
Kent Farm v.
(D.D.C.1976).
of insects because
of
lack of screened
openings;
inadequate lighting;
exterior
lack
rooms;
sleeping
of ventilation in interior
Depart-
21. Section
of
the Fiscal Year 1985
cots,
heavily
lows;
sleeping
pil-
soiled
blankets and
Labor,
Services,
ment of
Health and Human
sanitary problems
additional
caused
Agencies Appropria-
and Education and Related
rodents;
the use of cats to control
the serious
(which
question),
tion Act
includes the funds in
disrepair
building;
and deterioration of the
provides
part
any appropriation
of
“[n]o
examples
building
and other
lacks the
contained in this Act shall remain available for
elementary
safety
most
health and
features.
obligation beyond
year____"
the current fiscal
J.App.
reported
81. GSA
that much of the dam-
98-619,
(Nov.
Pub.L. No.
98 Stat.
age
began operation
had occurred after CCNV
1984).
Congress
This limitation indicates that
J.App.
of the shelter.
80-81.
Secretary
any projects
did not wish the
to fund
require long-term
funding.
that would
Rather,
federal
whether,
19. We therefore need not address
Secretary
expected
was
to make a
the absence of a commitment to locate alterna-
grants prior
number of one-time
to the end of
tives,
providing
a decision to close a shelter
year.
the fiscal
necessary
premised
services which was
on the
Moreover,
expanded
operat-
an
federal role in
health of shelter residents would be inconsistent
ing
might
compromised
the shelter
purposes
Community
with the
Service
agency’s ability
Community
to utilize the limited
arbitrary
capri-
Block Grant Act or otherwise
pursu-
Services Block Grant Act funds allocated
cious.
range
ant
to Section 9910 for the
broad
purposes
by Congress.
20. An
envisioned
agency
Rather than
prompted by personal
decision
directing
to use
requirement
animus
these funds for
would run afoul of the
reasoned,
agencies
single policy goal
ameliorating
nonarbitrary
the lack
act in a
man-
note
gan, supra
J.App.
Appel-
to be concerned
Undersecretary Baker
long-term lees assert
District Court
assuming
expanded
about
authority
place obligations
facility. without
administering
directly
role
аgency beyond
voluntarily
those it
as-
reasonably
predicament was
agency’s
Appellees’
sumed.
Brief at 41-43. Al-
to locate
through the commitment
resolved
though
appreciate
we
the District Court’s
alternatives.
suitable
problem
to see the
desire
of homelessness
identified
and fifth reasons
The fourth
eliminated,
authority
we know of no
the need
Undersecretary Baker concern
impose
would have authorized it to
such a
agency viewed
two factors the
to eliminate
requirement
dismissing
in this action while
of alternative
impeding the identification
all
the claims before
But to the
it.
of this liti-
pendency
facilities: the
shelter
required
the order
to see
extent
operation of the
and the continued
gation
and D
that alternatives
the Second
The record
and D Streets shelter.
Second
developed,
Streets shelter were
the order
agency’s
no substantiation for
contains
agency’s
incorporated the
chosen course of
litigation dis-
that continued
speculation
in Undersecretary
action as reflected
Bak-
providers from
couraged potential shelter
part
memorandum.
er’s
That
the order
Although
reject
we
becoming involved.
appropriate
was an
exercise of the District
reason,
nullify
its articulation does
jurisdiction to condition
Court’s
dismissal
in view
the other factors
decision
agency’s
fulfillment of the obli-
supporting
agency.
upon which the
gations
court relied
hold-
weight
given
to be
to the
ing the
decision to
rational. The
ac-
and decisive
belief
immediate
order
to the
District Court’s
is affirmed
spur
would
tion to close
required
extent
location of substitute
*14
necessary cooperation
easily
not
deter-
shelter facilities for the inhabitants of the
govern-
In the
minable.
absence
and D Streets
Second
shelter.
alternatives,
commitment to locate
ment’s
Promissory Estoppel
VII.
Claim
we would have serious doubts about
given this
brinkmanship.
calculated
But
appealing
In addition to
the District
commitment,
agency’s
we
the
cannot hold
challenge,
APA
Court’s dismissal
their
attempt
logjam to be
political
again
to break the
appellants have
raised their claim
closing the
appellees
unreasonable.
are barred from
that
by
promis-
virtue of the
doctrine
Authority
estoppel.22 The
Court dis-
sory
V. The District Court’s
To
Development
promissory estoppel claim
missed the
with-
Closure
Condition
merits,
reaching
ruling
appel-
out
of Alternatives
this issue in
lants had failed
address
authority of
Appellees challenge the
government’s
opposing the
motion
dis-
develop
require
District Court
therefore
the claim
and had
conceded
miss
long
“appropriate interim and
ment of
l-9(d).
Rule
under Local
homelessness
range plans
eliminate
l-9(d) provides:
Capital____”
v. Rea-
Rule
Nation’s
Robbins
change
given
Co-
decision to
course
in the District of
services for
lumbia,
homeless
Secretary
Congress
government might
to con-
directed the
otherwise
likelihood that
allocating
"technical assistance
required
responsibility
sider
funds for
been
assume sole
have
housing
training programs
rural
long-term operation
the shelter.
for the
community
development;
assistance
facilities
workers;
migrants
farm
operates
require
for
seasonal
enforce-
22. That doctrine
regional
designed
pro-
programs
national or
promises that
induced reasonable
ment of
low-income
recreational
activities
for
vide
promisee
enforcement
reliance
where
(E),
(F)
9910(a)(2)(D),
youth.”
42 U.S.C. §
injustice.
necessary
to avoid
Granfield
(1982).
goals
programmatic
The diverse
Univ.,
(D.C.Cir.), cert.
missing estoppel claim on this basis. federal common law and that the waiver of *15 Hockey Metropoli National League v. sovereign immunity applies.24 in the APA Club, Hockey 639, 642, tan 427 U.S. 96 Appellants maintain that this court should (1976). S.Ct. In find for them on the and sover- reviewing dismissal, the District Court’s eign immunity issues as a matter of law. this court must consider the circumstances past year this court has twice surrounding appellants’ comply failure to declined to rule on the “novel and difficult 1-9(d). Camps with Rule v. & P Tele C concerning subject issues jurisdic- matter phone Co., 120, (D.C.Cir. 692 F.2d 124 tion sovereign immunity” waiver of 1981). “Trial court dismissal aof lawsuit presented by promissory estoppel claims of never step, heard on the merits is a drastic against government. the federal normally to оnly be taken after unfruitful Profes- States, Managers’ sional resort Ass’n v. United lesser sanctions.” Jackson v. (D.C.Cir.1985); Co., 119, 761 F.2d 745 n. 4 Washington Na- Monthly 569 F.2d (D.C.Cir.1977).23 Center, 123 tional justifi Reg- Dismissal is Juvenile Law Inc. v. preclude (D.C.Cir.1984). able nery, claims a 738 F.2d when court is faced approaching “flagrant with conduct Only Appeals one United of States Court Although only sovereign immunity the District Court dismissed 24. The APA waives as to grounds, one claim on these we think the dis- claims that "an or officer of the United potentially missal of a meritorious claim is a capaci- States acted or failed to act in an official enough severe applied sanction so that it should (1982). ty.” 5 U.S.C. 702 egregious conduct. injustice: is not sovereign immunity necessary to avoid ruled on the in fact has States, where, enforcement, prom- See Jablon v. United case absent issue. (9th Cir.1981) (holding that (here government) unjustly F.2d isor will be has not waived sover- government and, above, “the as stated it is enriched difficult promissory immunity regard to a eign why a lack to discern of enforcement will action”). con- We have cause of estoppel to the result harm residents. See Dono- unique circumstances cluded Service, States van United Postal vehicle inappropriate make it an case (D.D.C.1981)(citing F.Supp. Oates the first tackling questions these Plan, v. Teamsters Pension Affiliates expedited nature Because of the time.25 (D.D.C.1979)). F.Supp. The courts, have proceedings both we re- committed substantial briefing from adequate had the benefit shel- sources to creation of alternative issuance of delay The in the parties.26 superi- ters in an effort create conditions full con- from that would result a decision existing or to those and D аt Second not result of these would issues sideration such, justifica- As Streets. there exists no rather appellants, but benefit prom- remand of tion for a this case on the to the harm likely cause further would issory estoppel issue. inhabitants and D Streets Second jurisdic- decline to We thus rule on the shelter. promissory involved in tional issue es- convinced from toppel uphold claim but District Court’s been appellees record that would it, grounds. albeit on different dismissal Dis summary judgment had the granted merits of Court examined the trict VII. Conclusion to suc estoppel claim. In order promissory jurisdic- find We Court had appel promissory estoppel claim ceed on ap- tion under 28 U.S.C. 1331 to review (1) prove: have to the existence lants would pellants’ APA claims and that the (2) government ex promise; question under action was reviewable rely promise on the pected The decision rather than the APA. to close action or taking definite and substantial renovate the shelter at Second and action; (3) forbearing actual de from such capricious. not arbitrary Streets (4) by appellants; reliance trimental Therefore, appellants to an are not entitled promise enforced to avoid must be appellees compelling complete order injustice. v. Catholic Universi Granfield ap- repairs.27 conditional dismissal 1039; see supra note 530 F.2d ty, pellants’ claims is affirmed to the extent (Second) of Contracts Restatement also appellees provide adequate al- required 90§ for the inhabitants of the Second ternatives imagine find it how resi- difficult to We Finally, although and D Streets shelter. govern- of the shelter relied dents ap- dismissed improperly the District Court *16 promise detriment choos- ment’s their estoppel claim under pellants’ promissory D ing live at the and Streets Second 9(d), is Rule we think dismissal Local 1— facility living instead of in the streets. other It is appropriate for reasons. reasons, Moreover, it is clear for two is not alleged promise of the So ordered. enforcement Justice, See, appellants e.g., Dep’t clear that are not entitled Doe v. States 27. It is also United of (appellate 1092, (D.C.Cir.1985) compelling government to win- F.2d to an order shelter, may of threshold issue court defer resolution and terize the Second D Streets clearly on is fore-or- where decision the merits appellants' to Revise October 1985 Motion Vance, dained); n. 7 Adams v. 570 F.2d denied. Order is therefore cases). (D.C.Cir.1977) (collecting Carter, See Edwards v. 580 F.2d denied, (D.C.Cir.) curiam), (per cert. BORK, Judge, concurring in Circuit the Grant Act. CCNV found amount inad- judgment part dissenting in part: equate, refused to let the pro- renovation ceed, and, plaintiffs, with other filed this Appellants appeal and others Robbins compel government suit to the federal dismissing from order a district court their create a “model shelter.” HHS rescinded complaint. plaintiffs below, Appellants, spend $2.7 decision to million on renova- promise by Secretary sued to enforce a tions, giving the reasons recited in the ma- Margaret Health and Human Services op. jority opinion. Maj. at 24-28. federally-owned Heckler to convert a build- ing at D Streets into a Second and “model I.
shelter” for the homeless of the District of appellees ap- Columbia. The fedеral cross important It is note did peal from the district court’s order condi- not sue to force the government to spend tioning closing and the the dismissal of the million on renovations. $2.7 CCNV had upon shelter Second and Streets the find- explicitly rejected those Ap- renovations. ing shelter arrangements. of alternative pellants did challenge the withdrawal million They $2.7 commitment. sued My colleagues decided a case that November, 1984, to enforce the promise to presented was not to us. The obtrusive shelter,” which, create a “model any- on juris- truth is that the district court lacked body’s calculations, cost case would much more. diction to decide this and hence lacked Yet the We, majority inexplicably jurisdiction turn, its order. addresses issue commitment jurisdiction appeal, seeking lack CCNV is not over other to en- than ignores force and to vacate the order. For that commitment does reason, per opinion seek to enforce. reality curiam is in compendium little more than a of contro- majority struggles to make the $2.7 versial dicta. subject million commitment the of this law- opinion’s majority Given the suit struggle unavailing. extensive but that facts, recitation of the I majority opinion attempts need restate justify what is few crucial The Community by saying ones. done here District Court’s “[t]he (“CCNV”) Creative Non-Violence has been decision itself on the agency’s focused deci- operating a people shelter homeless in a sion to allocate the monies elsewhere and building government federal owned close the shelter it is that decision we located at Second and D Streets in reviewing.” 46 n. 15. That are At After disputes precisely right. of Columbia. since it is-absolutely about And shelter, Health clear that court the district focused on an (“HHS”), November, and, Human presented by plaintiffs, Services issue not indeed, rejected by plaintiffs, informed CCNV the President way requested had building that HHS make the to review the court’s district decision is to physical “into a model juris- to house the declare that the district court lacked plaintiffs homeless the District of diction actually Columbia.” The over the issue Secretary specified types presented seven of renova- and to vacate the district court’s undertaken, and, tion May that would be order. The the district fact formally nobody litigat- HHS authorized the ex- reached out for an issue penditure ing provides from appro- doing million funds no excuse for our $2.7 priated Community thing. for the same Services Block locating ap- proper 1. The mood in which the district court assists in health *17 proached question providers the of what issues were be- care and shelter and does what it it, (as powers, sufficiently fore promised, and its own is indi- has suit). a result now of this law- by passage, by following cated the no means the regard, every In this the Court will use tone, only opinion: one of similar from its disposal power may which it have at its applications Court of the [T]he will entertain written order that the residents Second and Street, N.W., building provided appointment Special are ... for the of a in other Master they purpose ensuring for the that need to live of the federal facilities with the resources Instead, attempts support to majority find million commitment. that com- The noting plaint makes it assumptiоn power by language then as clear as can its “appellees main- that the “model shelter” themselves commitment that only sought that million is to be enforced. First throughout the Amended $2.7 tained para. 1, Complaint (“This their at at 249 sufficient to redeem J.A. suit commitment was shelter], compel and it the the a model asks Court to Defendants original pledge to [of help their honor commitment to fed- only after CCNV refused transform a was erally-owned to the shelter. shelter for the government moved close homeless into the Thus, parties facility.”); para. a ‘model’ a view of what the J.A. at 259 realistic (“[T]his require over suit filed to district court decided was defend- argued, and the to honor litigation leads us ants to their commitment course of this to renovate the ”).2 into of the the shelter a ‘model.’ government’s on the rescission focus resultant and the million commitment $2.7 enough prove If all this is not to that the critical shelter as the to the close decision district court had before it a suit to Far At 46 n. review.” decisions compel the of a creation “model shelter” is “realistic,” of what this being view from prevent not to and the rescission the fiction. piece judicial us is presented to commitment, relief, million the latter $2.7 million assert appellees $2.7 did majority to which chooses view as the to redeem sufficient commitment us, rejected explicitly issue before is appel- But shelter.” of a “model pledge complaint. Paragraph 31 alleges that and sued rejected view utterly lants plan [designed implement to GSA “[t]he built. “model shelter” be order that million does satisfy $2.7 commitment] below, never plaintiffs appellants, Since specific conditions of commitment $2.7 of the the rescission challenged once Reagan made and Secretary President un- commitment, to impossible it is million Heckler, satisfy and it does not the overall empowered the district derstand what commitment renovate shelter to be a court, re- court, empowers this or now physical ‘model ... with special shelter at- that rescission. view preserving dignity of tention to the home- ____' complaint propose once ... defendants The amended does not less What unacceptable respon- complain rescission of the do would be $2.7 of HHS’s Master, beings they may pointment Special will be a human so that who decent problems, nationally recognized expert for their receive treatment various in this multi-dis- addiction, drug envisioned, other such as and and ciplinary problem. currently alcohol As problems. also real- mental health The Court report Special Master would on the con- people need and assist- izes that these food expertise those the resources duct of and deficiencies. ance care for their nutritional problem to solve and eliminate this to—not recognizes many of these The Court through press exacerbate conferences and counselling, training, job and people require recriminations, hurling all at the ex- needs____ myriad have a of other needy. Only pense truly our nation’s governmental require lead- This effort will building, residents of conscience and the bottom, top starting ership at the from grates might who otherwise be and House, disciplines in a multitude of White capital, parks of the nation’s will be expects are But the Court involved. harmed if a solution not achieved. further commerce, banking, captains industry, the hospitals, (footnotes omitted). J.A. at 13-14 homes, nursing and other skilled medical, psy- providers, and health care chiatric, replete examples. 2. The record with other legal professions all be will 37-40, 31-33, 259-61, paras. J.A. at 263-65. urged strongest possible asked prayer for asks that the court declare relief implement a solution to terms find and closing of a violation of "defend- the shelter disgraceful delay problem. No can more into ants’ commitment to transform misery. tolerated in the face this human a violation of the Ad- a model” therefore Thus, waiting watching the Court will be Act. Id. para. at J.A. ministrative Procedure Stales to see President of the United what the enjoined defendants be at 267. It also asks that government, as well and his in the associates 1984, commitment, November, to honor sector, private do. The as the leaders of Id. a model shelter. which was create not, but, enough, if it will be court believes para. J.A. at 267-68. ready ap- the Court stands consider *18 In no sense could provider. that none of the reasons the sible shelter proposal be considered a the defendants’ gave deciding for to close the “pro ” at 260-61.3 ‘model.’ J.A. walking away a basis for vides from [the commitment ‘model made in No shelter’] beyond complaint thus makes clear The vember, by the President and the Sec million commitment is quibble that the $2.7 retary at ap of HHS.” Id. 13. “Because subject any way of this lawsuit. pellees made progress have no im toward The creation of a “model shelter” is the plementing lawsuit, the commitment and the million made in No subject of this $2.7 vember, develop rejected any way as not in 1984 to commitment is Second Street upon. shelter, sued related to the commitment shelter as a model and because they spent the last several months majority’s Given remark attempting escape commitment, proceed “complicated scenario” of these proper remedy” is an order requiring “ap easily ings characterized as a cannot be “so pellees to renovate the Second Street shel shelter,” may it be only case about a model ter as a model shelter for the homeless.” perhaps the case has some thought Id.4 complaint. Whatev changed how since raised, originally perhaps er the issue At argument, oral counsel for metamorphosed challenge into a case had made it clear that a “model shelter” was million commit to the rescission of $2.7 sought, possible not the renovations by appeal time the reached ment us. fact, only reluctantly, million. $2.7 Nothing could further from the truth. court, upon being pressed by the did coun- appellants’ The of the Issues Statement say sel would oper- CCNV continue to questions lists as for this court’s re brief only ate the shelter if million was $2.7 the decision to close the Second and D view provided. very But it was clear that this appellees’ shelter and failure to Streets sum was not what this lawsuit was about. the shelter as a “model shelter.” renovate gone length I have into this matter at No issue the rescission of the about $2.7 order to that the one issue that show presented
million commitment listed as complaint never raisеd that was Appellants’ to us. Statement of the Case brought never to us for review was the says, position “CCNV took government’s rescission of its commitment government’s plan million renovation $2.7 spend million on the Second and $2.7 utterly failed to meet the President’s No shelter. That is not and never Streets now vember, 1984 commitment to establish a has been the issue in this case. Yet it is and, model shelter on June filed majority absolutely the one issue that the compel appellees up this suit live upon deciding. imagine I Appellants commitment.” Brief insists cannot their for (footnote omitted). argues legitimate doing so. at 5 brief reason Indeed, complaint’s rejection anything Argument court erred states that the district "in physical promised failing compel but "model shelter" defendants to renovate the November, 1984, pervasive. Paragraph Second Street shelter as a model shelter.” Brief propose states: "What the defendants to do to Appellants at 14. The decision to close the physical the shelter will not 'create a model origi- shelter is attacked as inconsistent with the ” Paragraph shelter.’ J.A. at 263. 39 states: "In commitment. Id. at 16. nal "model shelter” the face of the President Rea- commitment willing represented CCNV that it was contin- gan Heckler to ‘create a model operating ue the shelter “if the shelter is reno- shelter,' physical proposed defendants have in- shelter,’ promised.” vated as a 'model Id. at perform inadequate stead to and insufficient on, go citing possible appel- 24. It is on and shelter, not, work at the any which work does under brief, appel- reply to show that lants’ brief definition, compli- reasonable constitute challenged appeal the rescission lants never ance with the at commitment." J.A. 263-64. million commitment but demanded $2.7 of the only order the creation of “mod- that the court 4. There is more in appellants’ brief that makes 28, 29, 36; Appellants at el shelter." Brief for abundantly Secretary's promise clear that the 5, 6, 9, 12, 13, Reply Appellants Brief for physical to build “a model shelter” was the 14, 18. subject appeal. point under first
57 701(a)(2) might majority’s depends be the der ques- Much said of section attempt in of its tion whether the breadth reasoning, particular and of discretion con- — upon agency by ferred Chaney, provides U.S. an statute confine Heckler v. to court to (1985), apply given 714 with no law in a -, 84 L.Ed.2d 105 S.Ct. — Recently, case. in rationale, but, Chaney, Heckler v. majori- since the a narrow U.S.-, 1649, 1655, non-issue, 105 S.Ct. 84 L.Ed.2d essay is on a ty’s opinion an (1985), Supreme 714 the Court noted event, that a In the is no need do so. there court can interfere with an exer- appeal majority concludes that should “judicially cise of discretion where dismissed, agree. I I and with that turn be manageable standards” exist to constrain to what seems to me the correct rea- next Thus, any particular discretion. in dismissing and appeal the com- son for instance, a statute that offers no standards plaint. specific to constrain the exercise of an agency’s discretionary power provides no II. reviewing apply law court to and only controversy actually before this The deprives jurisdiction. that court may appellants maintain a court is whether require appellees to create a “model Unless one understаnds “no suit to law to and, apply” specific as physical relating shelter structure” because standard to the may prevent allegation given in a obligation, challenge, that asserted at stake closing always find of the Second and Streets shelter. could some law in the general lie. controversy, is clear that no such suit will area of the It sec 701(a)(2) tion of the Administrative Proce subject not have The district court did nullity. dure Act would become a The in hear this jurisdiction matter lawsuit. quiry only by “can made be coherent mea by majority 28 rested Jurisdiction suring allegation plaintiff’s against (1982), gives 1331 U.S.C. which district § governing substantive statute.” Sun See jurisdiction over “all civil actions courts stein, Reviewing Agency Inaction After Constitution, arising under or laws Chaney, Heckler 52 U.Chi.L.Rev. treaties of the United States.” This action (1985). cannot arise under the laws United case, pro- because there is no federal law to the substantive statute States challenge govern apply. Appellants govern- appellants’ vides no standards to challenge. The standards statutory ment’s action under the Administrative Act, seq. majority apply which refers Procedure see 5 U.S.C. et do not § (1982), particular allegations by appel- if precluded review is the chal- made but lenged majority upon action is dis- lants. The relies U.S.C. committed law, 701(a)(2) 9910(a)(2) (1982), by 5 U.S.C. which constrains the cretion see § § committed, limiting (1982). Secretary by If the is so discretion of the action acceptable upon purposes federal under 28 the Secre- precludes which tary expend Community can Services Block U.S.C. Califano Sanders, 99, 105, majority’s 97 S.Ct. Grant funds.5 The reliance Act (1977) 9910(a)(2) (holding misplaced. section does While spending question jurisdiction Secretary’s of the federal limit the descretion federal funds, “subject statutory ways 1331 is ... does so courts under section lawsuit, wholly appel- to this statutes created or re- irrelevant preclusion-of-review alleged Congress”). lants Under Citizens to tained transgressed any Volpe, abused discretion Overton Park v. 401 U.S. Preserve provision The 136 limits set out the statute. 28 L.Ed.2d majority imposes no substan- (1971), preclusion un- cited judicial review inapposite gleaned majority insofar Significantly, majority tive concedes these granted part they purposes apply from U.S.C. funds to states. 9904(c)( )(B)(IV) (c)(1)(C) (1982), which actually the action ing. tive constraint on complaint amended alleged that here, issue have nowhere proposed closing was unlawful because refusal to asserted that the build a “model promise inconsistent with the to create a provision. provi- shelter” violated later, model shelter. Just over a month *20 by majority sion cited cannot make this Secretary Under approved of HHS recom- action reviewable because no one has asked mendations in a memorandum July dated this court to see if it has been trans- 31, 1985, government from another official. gressed.6 One approved recommendation was that closing the shelter postponed be August If apply simply there is law to because a 31, 1985, to allow time to make all reason- statute criteria that in way contains are no able efforts to find alternative shelter complaint made, ar- subject relevant to the rangements. closing The was jurisdiction matter of federal not condi- courts is upon finding tioned greatly expanded. happened That has alternative shelter ar- here, rangements. majority improperly and the The Under assumes decided jurisdiction to rationality review the that the previously $2.7 million committed Secretary’s Under decision to close the to renovations at Second Dand Streets that, It shelter. seems to me clear since should be used in the relocation effort. the statute contains no standards relevant Thus, it is appellants clear that did not appellants brought, to the case there is no sue to enforce the Secretary’s adop- Under apply law and that this court lacks “aris- tion of the recommendations set out in the ing under” over the Adminis- They memorandum. hardly could trative Procedure Act claims.7 complaint done so since the was filed a month before the memorandum existed. III. complaint The entirely upon relied the 1984 Since the jurisdic- district court had no “model shelter” complaint statement. The case, tion over this it is clear that the order explicit closing about this: op- not to close the Second and D Streets shel- posed “because it violated the word of a ter must be vacated. But there is an addi- President,” cabinet officer and the not be- tional reason for that conclusion. That or- cause it violated the later policy decision der, by court, unsup- affirmed this Secretary. made the Under First ported by any legal citation obli- Complaint para. Amended at J.A. at gation appellees appellants. owe to Indeed, paragraph 261. 34 of the First Complaint,
After the Amended announced that it CCNY stated that “[djefendants’ proposal intended to clоse the Second and D Streets to close the shelter shelter, appellants, on June filed and evict the patently residents is violative complaint the amended enjoin the clos- of the commitment to transform the shelter majority listing specific 6. Nor is it clear that the is correct' in renovations and HHS’s com- asserting compels that the APA us to review the $2.7 mitment of million to make those renova- agency action not, however, to see if it is "based on factual tions. We do need to reach the adequate determinations that are without foun- question whether those criteria constitute “law 701(a) (1982) precludes dation.” If 5 U.S.C. § apply" case because do not review, judicial dispositive. that must be “law,” Instead, seek to enforce this if it be law. they upon original Secretary’s sue statement argued apply" It is 7. "law to in this case promising physical "a model shelter Secretary’s lies in the statement that she had homeless in the District of Columbia.” See First been directed to build a "model shelter.” No 17-19, Complaint Amended at J.A. at 263-65. statement, one on this court thinks that phrase supply The "model shelter” does alone, standing provides undefined and law. — U.S.-, Chaney, what Heckler v. majority expressly agrees The there is no (1985), "judicial- demands: apply law to to a demand for a "model shelter" ly manageable Nobody standards.” knows what costing far more $2.7 than million. At 46 version, appellants’ means as contained n. criteria which the court plans, in their architect’s illustrates their vision and then this court could define the "mod- term hardly but can be called law. Secretary’s el shelter” would come from the shelter structure." physical a ‘model into NATURAL GAS COMPA- NORTHERN
J.A. INTERNORTH, NY, DIVISION OF again addresses an is- majority Yet Petitioner, INC., upholds the and this time presented sue not alterna- requiring that order court’s district Streets the Second
tives to FEDERAL ENERGY REGULATORY that shelter could be developed before COMMISSION, Respondent. on the notion majority does so closed. GAS COMPA- NATURAL NORTHERN compli- could enforce that the district INTERNORTH, NY, DIVISION OF commitments, agency’s own with the ance Petitioner, INC., recommendations in the as formulated *21 the Under Secretary adopted. But Under appel- commitment to Secretary made no ENERGY REGULATORY FEDERAL to enforce lants; did not sue COMMISSION, Respondent. decided; and Secretary the Under anything not, the district did the Under 84-1516, 85-1045. Nos. did, closing conditional make the Each shelter. of alternative provision Appeals, States Court of United to the district is fatal these defects District of Columbia Circuit. perhaps The last mentioned order. court’s did The district court emphasis.
deserves Argued Nov. 1985. policy simply enforce more than Decided Dec. 1985. Secretary. poli- That adopted by the Under Dec. Amended As closing on the cy did not condition The lower of an alternative. provision Rehearing En Banc Granted therefore, court, by its order added has March 1986.* purports to en- policy it new term to the endorses the dis- majority now
force. action. This constitutes
trict court’s intrusion into the ad-
impermissible judicial process.8
ministrative decision, today’s I aspect of
From this
dissent.
IV. summarize, I concur in the affirmance
To appellants’ dismissal of
of the lower court’s
complaint ground so on the but do “arising juris- lacked under”
district court
diction; I affirmance of dissent from the judge’s requiring the
the trial order
government provide alternative shelter closing
arrangements before down Sec- shelter because there
ond and Streets any legal basis
was neither nor
for that order. provided Because the alterna- quate. Appellants’ Emergency Motion for and on Flor- tive shelter facilities Anacostia (filed 1985). Relief Nov. Street, aspect of the lower court’s deci- ida * opinion para- Part II of the as well as the last might be moot but for the aDDellants’ con- sion graph were vacated. are inade- facilities that these alternative tention