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ROBBINS v. REAGAN

August 19, 1985

ROBERT ROBBINS, et al., Plaintiffs,
v.
RONALD REAGAN, et al., Defendants



The opinion of the court was delivered by: RICHEY

RICHEY, U.S.D.J.

 INTRODUCTION

 This case, which is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment, and on plaintiffs' motion for partial summary judgment, presents the issue of when the government may change its announced course of action based on somewhat changed circumstances. For the reasons stated herein, the Court grants defendants' motion, and enters judgment for defendants in this case.

 The case concerns the future of a federally-owned building which is operated by some of the plaintiffs as a shelter for homeless persons. For various reasons, the government has now decided to close this shelter, despite a statement made last November by Secretary Heckler of the Department of Health and Human Services ("HHS") that the government would perform certain renovations on the building. The primary legal battleground for this dispute is found in the Administrative Procedure Act ("APA"), and the cases decided thereunder. As applied to the situation before the Court, that Act provides a narrow standard of judicial review. The government's decision in this case is based on a thoroughly reasoned analysis, and, most importantly, provides for the expenditure of up to $2.7 million to assist in the relocation of the shelter residents. For this reason, it cannot be said that the federal government has callously "turned its back" on the residents. As noted, the Court upholds the decision, which was made on July 31, 1985, after the Court remanded the case to HHS for further proceedings.

 Notwithstanding the foregoing, within 30 days only the Court will entertain written applications to the Clerk, by way of a pleading, for the appointment of a Special Master for the purpose of ensuring that the federal government assists in locating proper health care and shelter providers and does what it has now promised, (as a result of this lawsuit). In this regard, the Court will use every power which it may have at its disposal in order that the residents of the Second and D Street, N.W., building are provided in other facilities with the resources they need to live as decent human beings so that they may receive treatment for their various problems, such as alcohol and drug addiction, and other mental health problems. The Court also realizes that these people need food and assistance to care for their nutritional deficiencies.

 The Court recognizes that many of these people require counselling, job training, and have a myriad of other needs. Meanwhile, the Court is confident that Mr. Snyder, Ms. Fennelly, and the other leaders of CCVN will cooperate fully in this long overdue bold and prompt action to see that the residents of the dilapidated rat and vermin-infested building are transferred to appropriate facilities with dispatch and human kindness.

 This effort will require governmental leadership from top to bottom, starting at the White House, in a multitude of disciplines that are involved. But the Court expects that the captains of industry, commerce, banking, hospitals, skilled nursing homes, and other health care providers, and the medical, psychiatric, and legal professions will all be asked and urged in the strongest possible terms to find and implement a solution to this disgraceful problem. No more delay can be tolerated in the face of this human misery. Thus, the Court will be watching and waiting to see what the President of the United States and his associates in the government, as well as the leaders of the private sector, do. The Court believes it will be enough, but, if not, the Court stands ready to consider the appointment of a Special Master, who will be a nationally recognized expert in this multi-disciplinary problem. *fn1" As currently envisioned, *fn2" the Special Master would report on the conduct of those with the resources and expertise to solve and eliminate this problem - not to exacerbate it through press conferences and the hurling of recriminations, all at the expense of the truly needy. Only our nation's conscience and the residents of this building, who might otherwise be on the grates and in the parks of the nation's capital, will be harmed further if a solution is not achieved.

 BACKGROUND

 A. The Parties.

 The plaintiffs in this case include several residents of the building located at Second and D Streets, N.W., Washington, D.C., which building is now operated as a shelter for homeless persons; the Community for Creative Non-Violence ("CCNV"), an unincorporated religious association which currently operates the shelter; and Mitch Snyder and Carol Fennelly, two members and representatives of CCNV. The defendants include Ronald Reagan, the President of the United States; Donald Regan, the Chief of the White House Staff; Margaret Heckler, the Secretary of the Department of Health and Human Services ("HHS"); Harvey Vieth, Director of the HHS Office of Community Services and Chairman of the Federal Inter-Agency Task Force on Food and Shelter for the Homeless ("the Task Force"); and Dwight A. Ink, Acting Administrator of the General Services Administration ("GSA"). All of the defendants are sued in their official capacities for declaratory and injunctive relief only..

 B. The Federal Government's Involvement with the Problems of The Homeless, and with the Shelter.

 All of the facts material to this case are undisputed. On October 31, 1983, HHS Secretary Heckler established the Federal Inter-Agency Task Force on the Homeless. This Task Force, which includes representatives from thirteen federal departments and agencies, was designed to coordinate federal efforts toward improving the conditions of the nation's homeless persons. As noted, defendant Dr. Harvey Vieth is the Chairman of the Task Force.

 On December 27, 1983, HHS issued a license to the District of Columbia ("D.C.") Government for the use of the building as a shelter for the homeless until March 31, 1984. The D.C. Government in turn assigned its license to CCNV to operate the shelter until March 31, 1984.

 On January 15, 1984, CCNV opened the building as a shelter for the homeless. CCNV subsequently requested that they be permitted to operate the building as a shelter beyond March 31, 1984. CCNV also provided the federal government with a document prepared by architect Conrad Levenson. Levenson had, at CCNV's request, examined the building and prepared this document, which represented his estimate of the scope and cost of repairs needed to restore the somewhat deteriorated building to a basic operating level. Levenson's estimate of the costs needed for such repairs and renovation was approximately $5 million. In March, 1984, CCNV asked the federal government to perform these repairs and alterations.

 Federal officials agreed that CCNV should be allowed to continue to operate the building as a shelter, and, on March 30, 1984, GSA indefinitely extended HHS's permit to use the building. This modification of the permit provided that either party, GSA or HHS, could terminate the agreement on 30 days notice. HHS then offered to extend its license to the D.C. Government, but the District refused to accept the extension. Thus, D.C.'s license to CCNV expired on March 31, 1984. Despite the absence of any license or permit for CCNV to use the building, HHS has allowed the continued operation by CCNV of the building as a shelter for the homeless.

 On July 27, 1984, plaintiff Mitch Snyder wrote to President Reagan again requesting that the federal government expend approximately $5 million to renovate the shelter. By letter dated August 14, 1984, Dr. Vieth, as Director of the Task Force, responded to Mr. Snyder's request, suggesting that CCNV's concerns be directed to the District of Columbia Government. Dr. Vieth stated that the Task Force had consistently emphasized that local governments and local providers are responsible for maintenance and support services of the shelters. The federal government's role, Dr. Vieth noted, consisted of responding to local governments and groups concerning the availability of federal buildings and surplus property for homeless people.

 On September 15, 1984, Mitch Snyder and other CCNV members began a fast in an effort to secure the renovation of the building by the federal government. HHS representatives subsequently negotiated with Mr. Snyder concerning the possible renovation of the building. On November 3, 1984, the 50th day of the fast, Secretary Heckler spoke to Mr. Snyder on the telephone. On November 3 and 4, 1984, Dr. Vieth and C. Maclain Haddow, Secretary Heckler's Executive Assistant, had several telephone conversations with Mr. Snyder. On November 4, 1984, Haddow and Vieth came to the CCNV house with a document describing the renovations that the federal government agreed it would perform at the building.

 The document was a statement by Secretary Heckler, which began with the following language:

 
President Reagan has asked me to authorize the renovation of the temporary shelter at Second and D Streets, N.W., to make it into a model physical shelter structure to house the homeless in the District of Columbia.
 
The Federal Government will rehabilitate the structure (at Second and D Streets, N.W.), to create a model physical shelter structure to house the homeless in the District of Columbia as long as a critical need exists, with special attention to preserving dignity of the homeless through the following:
 
1. Adequate locker facilities for securing personal belongings of those utilizing the shelter.
 
2. Provisions of adequate shelter space for separate men's and women's quarters.
 
3. Adequate kitchen facilities for food preparations.
 
4. Laundry room facility.
 
5. Emergency first aid station.
 
6. Consultation rooms for social service providers.
 
7. Adequate fire prevention sprinkler system.

 Haddow, Vieth, and Snyder discussed the document, and eventually believed that they reached an agreement. Secretary Heckler and Mitch Snyder spoke on the telephone, and Snyder then ended his fast.

 C. Events After the Heckler Statement.

 Prior to and after Mr. Snyder ended his fast, federal officials discussed the proposed renovation of the building with CCNV representatives. Plaintiffs contend that the federal officials agreed to construct single-person cubicles in the building. Defendants deny that they ever agreed to this. Plaintiffs also contend that federal officials agreed that architect Conrad Levenson would perform the design work for the shelter. The federal officials also deny this agreement. As shall become clear, these disputes are not material to the resolution of the motions before the Court.

 After agreeing to perform at least the seven items listed in the November 4, 1984, document, HHS proceeded to identify funds to be used to undertake the renovations. The government determined that funds were available in the Congressional appropriation for the discretionary program under the Community Services Block Grant program. Congress had appropriated approximately $30 million for the entire program, which funds were to be used nationwide for a variety of purposes. See 42 U.S.C. §§ 9901 and 9910; Pub. L. No. 98-619, 98 Stat. 3305, 3319 (1984). Of this $30 million, only $19,920,000 is designated for programs instituted under the section of the Act which is pertinent here, 42 U.S.C. § 9910(a)(2)(A). See 98 Stat. at 3319.

 On December 27, 1984, Dr. Vieth wrote a letter to the National Endowment for the Arts supporting a grant application presented by the National Coalition for the Homeless on behalf of CCNV. This letter, which had been requested by the architect retained by CCNV, Conrad Levenson, stated that the grant funds would enable CCNV to develop renovation plans for the shelter.

 On February 8, 1985, CCNV provided to HHS a copy of Levenson's renovation plans, which had been publicly displayed on January 31, 1984. Levenson's plans provided for extensive renovations, including the construction of individual cubicles for the shelter residents. In early March, 1985, GSA and Task Force officials met with CCNV and architect Levenson, and two of his associates, to discuss the renovation plans. These groups engaged in several communications over the next two weeks. It soon became clear that the Government was willing to complete fewer renovations than was acceptable to CCNV. On March 18, 1985, GSA determined that Levenson's plans for renovation of the shelter would cost over $10 million, which was considerably more than the federal government was willing to commit, particularly because it represented over fifty per cent of the total appropriations for such programs nationwide. GSA also determined that the cost of renovating the building in accordance with Secretary Heckler's seven-point statement would be approximately $1.55 million if the building was to be retained for one to three years, and $2.7 million if the building was to be retained for three to five years. By letter dated March 21, 1985, GSA communicated these estimates to Dr. Vieth. On May 30, 1985, the expenditure of $2.7 million was formally authorized for building repairs and improvements.

 CCNV and HHS initially agreed that certain repairs would be conducted in early June, 1985. On May 15, 1985, CCNV distributed a letter to the shelter residents, alerting them that one-half of the building would be evacuated on June 1, 1985, to allow renovations. CCNV, apparently worried about unfavorable reports concerning CCNV and the shelter residents, also included in the letter a warning to shelter residents that CCNV would not tolerate any behavior "that can be used to discredit this place."

 On May 21, 1985, representatives from HHS, the D.C. Government, and CCNV met to discuss arrangements for the operation and renovation of the shelter. At this meeting the federal officials made clear to CCNV that they had different plans than those prepared by Mr. Levenson. On May 31, 1985, HHS and CCNV met to further discuss the renovations. The two groups sharply disagreed as to the scope and timing of the shelter renovations.

 CCNV did not see the GSA plans until June 7, 1985. In the meantime, on June 4, 1985, after CCNV relations with HHS had become somewhat hostile, Mitch Snyder wrote to President Reagan, asking that he meet with CCNV to resolve the dispute. On June 6, 1985, HHS Under Secretary Charles Baker responded, stating the government's position that CCNV should permit GSA to begin renovating the shelter on the basis of its oral descriptions of the planned renovations. On June 6, 1985, Mr. Snyder wrote to Secretary Heckler, stating that:

 
by Tuesday, June 11th, we must have your architectural drawings and your assurance that the work will begin by June 15th. If you do not meet this schedule, then we must insist that you promptly arrange to take responsibility for the daily operation of the shelter.

 As previously noted, the next day, June 7, 1985, GSA delivered to CCNV its plans for renovating the shelter.

 On June 11, 1985, a meeting was held to discuss the GSA plans for renovating the shelter. It was clear at this meeting that the plans were not acceptable to CCNV.

 The parties having arrived at loggerheads, plaintiffs on June 17, 1985, filed the original complaint in this case, seeking to compel defendants to (1) honor the November, 1984, statement, or (2), in the alternative, to ...


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