insist that the period for review did not begin to run until April 18, 1977, the revised submission date. Plaintiffs also claim that HUD is mistaken about exactly what had to be done within the 75-day period to discharge the agency's review obligations. Defendants suggest that the agency need only have dispatched a notice of disapproval to comply with section 5304(f)'s timeliness requirement, while plaintiffs maintain that the statutory notice was late because it was not, or cannot be proved to have been, received by the town within the 75-day time frame.
1. The question of the exact date when the review period in this case began to run turns on who in the agency set the revised submission date and whether that person possessed the requisite delegated authority to do so. The question is easily resolved. A search of the record reveals that, upon the request of the town's Mayor, HUD's Hartford Area Office extended the deadline for the submission of East Hartford's application from January 15, 1977 to April 16, 1977. This was accomplished by a letter signed by the Area Director.
The record also indicates that, once the Area Office realized that April 16 fell on a Saturday, it revised the submission date to April 18, 1977, the following Monday. This too was accomplished by a letter bearing the signature of the Area Director.
Plaintiffs apparently recognize this series of events. Yet they claim that the Area Director lacked the authority to change the submission date from April 16 to April 18. Thus, the review period, under HUD's weekend regulation, commenced Friday, April 15, a date that would make clear the untimeliness of HUD's notice of disapproval. This argument, however, is implausible for two basic reasons. To begin with, if the Area Director indeed lacked the necessary authority to revise the town's submission date from April 16 to April 18, then similarly his decision changing the date from January 15 to April 16 was just as ineffective. And if that is so, then the town's submission on April 15, far from being a day ahead of schedule, was actually three months late.
Moreover, a look at the statute and regulations bearing on the delegation of functions within HUD indicates that the Area Director was in fact possessed of the authority needed to revise East Hartford's submission date. 42 U.S.C. 3535(d) (1970) provides that "The Secretary may delegate any of his functions, powers, and duties to such officers and employees as he may designate." In addition, section 3535(d) allows the Secretary to "authorize such successive redelegations of such functions, powers, and duties as he may deem desirable." Implementing regulations appearing at 40 F.Reg. 5385-86 (Feb. 5, 1975) carry out this broad power to delegate responsibility under the Housing and Community Development Act. Specifically, these regulations redelegate to HUD Regional and Area Staff, including Area Directors, "the power and authority of the Assistant Secretary for Community Planning and Development [the Secretary's immediate delegate in the chain of command] with respect to Title I of the Housing and Community Development Act of 1974." Certain functions are excepted from this broad redelegation of power. But the authority to revise submission dates does not appear to fit within any of the excepted categories.
2. This conclusion does not end the inquiry, however. Plaintiffs argue that even if April 18, 1977 is the triggering date for the 75-day review process, the agency was still late in discharging the review function entailed by section 5304(f). The assumption behind this argument is that the 75 days run until the applicant actually receives a notice of disapproval, and not merely until HUD dispatches the notice. Proceeding on that premise, plaintiffs reason, and taking April 18, 1977 as the submission date, the town had to receive the disapproval notice by July 2, 1977,
the seventy-fifth day, or else its application qualifies as approved on account of untimeliness.
Plaintiffs' reading of section 5304(f) is not implausible.
The key word in the provision is "inform," and "inform" carries the connotation of a completed communication, suggesting that statutory notices of disapproval are effective only when received by grant applicants, and not when they are dispatched. Yet this seemingly reasonable suggestion is belied both by the legislative history behind section 5304(f) and by the obvious purpose of creating a fixed time period for agency review of grant applications.
The reasons why a fixed period for administrative review is important are apparent and compelling. Foremost lies in the fact that block grant applications are massive documents that require coordinated yet step-by-step examination by numerous authorities within the HUD hierarchy. Unless HUD can count on a definite time frame for completing review, the agency is apt to encounter troublesome problems in calendaring the several phases entailed by administrative review. Just as important is the fact that preliminary administrative screening frequently uncovers deficiencies in grant applications that are capable of being remedied through successive exchanges of information between the agency and the applicant. If, to act in a timely fashion, HUD is required to communicate decision on apparently deficient applications well ahead of the 75-day deadline, situations will inevitably arise where submissions that could have been approved have to be disapproved because there was not time enough at the final stages of review to receive and process supplemental information. This prospect is doubly unfortunate in view of the remedial purposes embodied in Title I.
The legislative history behind section 5304(f) also supports the view that HUD has the full 75 days to act on block grant applications. While the House
and Senate Reports
do not settle the question, the House Conference Report
does. The Conference Report makes clear that the time period specified in Title I's review provision was meant to set a fixed and outermost point for "the HUD Secretary to act on applications for community development assistance."
The significance of the "act on" language is manifest. If the agency is meant to have the full period provided in the statute to "act on" an application, all that reasonably can be expected of it is that it timely dispatch a notice explaining its decision. To read section 5304(f) otherwise would effectively deprive the agency of the full notice period and measure timeliness on the vagaries of the mail and the uncertainties of process-serving.
3. Proceeding on this basis, and figuring April 18, 1977 as the date that began the running of the 75-day review period, HUD had until July 2, 1977 to pass on East Hartford's application and dispatch the required notice of disapproval. When it took these steps on July 1, 1977, the agency accomplished all that the statute requires.
III. A Signed Telegram Sufficed as Notice of Disapproval.
Beyond untimeliness, plaintiffs challenge the notice of disapproval sent by HUD because the communication took the form of a telegram rather than a letter. The suggestion is that because the agency departed from the customary practice of using the mails,
the decision on the town's application is for that reason alone invalid. Plaintiffs' point is not well taken.
Section 5304(f) is silent on exactly what kinds of notice are effective. But the legislative history of the provision indicates that all that is required is "written notice."
There is no expressed preference for one kind of written notice over any other.
Of course, if the agency were to choose a means of communicating that was unlikely to reach applicants, its selection might be called into question and rightly so. But here the agency used a method just as reliable as the mail if not more so, and merely because it departed from what was customary is hardly grounds for invalidating it.
For the foregoing reasons, the Court is of the opinion that defendants' motion for summary judgment must be granted. For these same reasons, the Court is convinced that plaintiffs' crossmotion for summary judgment must be denied. An order in accordance with the foregoing will be issued of even date herewith.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 450 F. Supp.]
Consistent with the Memorandum Opinion issued of even date herewith, it is by the Court this 21st day of April, 1978,
ORDERED that defendants' motion for summary judgment be, and the same hereby is, granted; and it is
FURTHER ORDERED that plaintiffs' crossmotion for summary judgment be, and the same hereby is, denied.
This Order shall constitute the final judgment in this case in favor of defendants on each of the counts contained in plaintiffs' complaint.