that the incentive pay was payable upon his taking the oath of office, an event which did occur. 657 F.2d at 1067. The Ninth Circuit ruled that while equitable estoppel could be invoked against the government, promissory estoppel could not be employed to create a cause of action because the United States had not waived its sovereign immunity with regard to a cause of action based on promissory estoppel under the Tucker Act. Id. at 1070.
Aside from the fact that Jablon is not binding precedent in this circuit, that case is distinguishable from the instant case in that the plaintiffs here do not seek money damages but injunctive relief to preserve the status quo. To the extent that this case can be analogized to an action sounding in contract, however, it is more like Manloading & Management Associates, Inc. v. United States, 461 F.2d 1299 (Ct. Cl. 1972). In that case, a government contractor charged the United States with breach of contract for failing to renew a one-fiscal year contract it had with the government at the end of the fiscal year in spite of oral representations by the government at the bidding conference that "any prospective bidder should be assured that funds were available and that there would be no question about the renewal of the contract" for the next fiscal year. 461 F.2d at 1301. The government contended that a written option clause terming the contract "renewable, at the option of the Government" gave it an unrestricted right to renew the contract or not. Id. at 1300-01. The Court of Claims found that the oral statements made by the government representative resulted in an amendment renewing the contract at the end of the fiscal year. Id. at 1303. Likewise, in the instant case, the repeated assurances of OJJDP on which the Law Center relied in continuing its work provide the basis upon which the agency is estopped to deny funding for the completion of the Law Center's existing docket.
Finally, plaintiffs argue that Regnery's actions in denying the Law Center's request for interim funding were arbitrary and capricious, in violation of the Administrative Procedure Act and guarantees of substantive due process in that he failed to provide an adequate explanation of some legitimate underlying rationale. Defendants argue that there was no deficiency in Regnery's decision in that it was a matter committed to the agency's discretion, that he had made a determination that the Law Center's project did not meet his "developing priorities" for fiscal year 1983, and that it was also based upon the conclusion of the agency's general counsel that it had no "legal, moral, or ethical" responsibility to continue the funding. Regnery Dep. at 65, 69; Pl. Exh. 8 to Lauer Dep. (general counsel memorandum referencing that office's April 8, 1980 legal opinion).
It is not necessary to address this issue in light of the fact that plaintiffs' entitlement to the relief sought has already been determined. Nonetheless, Regnery's deposition testimony suggests that the Law Center's request for interim funding did not receive due consideration. Regnery was unable to state what his funding priorities were as of January 1983 when he met with Swanger or on March 9, 1983 when he issued his letter denying funding. Regnery Dep. at 25, 44. He admitted that OJJDP's fiscal year 1983 program priorities have not been promulgated. Id. at 72. Some of this uncertainty is reasonably attributable to the fact that Regnery had newly begun his position as Acting Administrator; moreover, he had the August 1982 decision by the prior Administrator to rely upon. Yet in his deposition Regnery was unable to state unequivocally that he took into consideration the crisis facing the Law Center and its clients in denying the request for interim funding. The significance of the request for interim funding, as opposed to the request for continuation funding, apparently was lost on Regnery. Id. at 31-32, 41-42. He could not state that he specifically considered that the denial of the interim funding request would have adverse effects on the Law Center's pending litigation. Id. at 31-35. Nor did he discuss the matter with Doyle Wood, the Law Center's grant monitor, who was well familiar with its program and needs. Wood Dep. at 53. It would appear that the potential for irreparable harm to befall the Law Center's clients was the main issue involved in the request for interim funding, and therefore a question that demanded more attention than that given to it by Regnery. In any case, the Court already has determined that plaintiffs are entitled to the relief they seek.
An injunction shall be entered prohibiting defendants from denying the Law Center a reasonable amount of funding sufficient to allow it to continue to completion the prosecution of ten enumerated civil actions, pending defendants' final administrative decision on the Law Center's application for continuation funding. "Completion" of the actions shall be the point at which final judgment is entered in the courts in which the actions are now pending. The injunction does not embrace appeals of such judgments where the appeals have not yet been filed, but does extend to post-judgment relief. It does include interlocutory appeals. In the case of matters now pending in appellate courts, the provisions of the injunction extend to proceedings in a trial court following remand, if any, but only through final judgment in the trial court and post-judgment relief. Requests for such funding shall be submitted to this Court for approval. In determining whether such amounts are reasonable, the Court will consider whether the Law Center has taken all possible measures to mitigate the amount of funds required from the government. Such measures shall include applying funds received by the Law Center through attorney's fees awards to current litigation costs and relying on the assistance of other counsel wherever possible. It is incumbent on the Law Center, to the extent of its ability to do so, to avoid unnecessary delay in the litigation of its cases. Should plaintiffs ultimately be unsuccessful in their application for continuation funding, through the administrative process and review in the United States Court of Appeals, they may move to modify this Court's injunction to provide for additional interim funding, if appropriate. An Order and an Injunction consistent with the foregoing accompany this Memorandum Opinion.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 564 F. Supp.]
Consistent with the Memorandum Opinion, the Order, and the Injunction entered by the Court in this case this date, judgment shall be and hereby is entered in favor of plaintiffs, National Juvenile Law Center, Inc., Brian Orlandi Hackman, and Ernest Lee Holland, and against defendants, Alfred S. Regnery and the Office of Juvenile Justice and Delinquency Prevention.
© 1992-2004 VersusLaw Inc.