state that defendants' plans for the shelter, in light of the Secretary's statement, constitute unlawful agency action. 5 U.S.C. § 706(2). The seventh cause of action challenges the decision to close the shelter on the grounds that it is arbitrary and capricious, an abuse of discretion, and otherwise "inconsistent" with law. Id.
The government defends against these APA claims on three fronts. First, as to counts one and two, defendants assert that this Court lacks subject matter jurisdiction. Second, defendants contend that the decision to close the shelter is wholly "committed to agency discretion by law", 5 U.S.C. § 701(a)(2), and thus unreviewable. Third, defendants state that, even assuming jurisdiction and reviewability, their decision must be upheld under the narrow standard of judicial review because that decision is based on a reasoned analysis. The Court considers these points in turn, and, as shall become clear, the Court agrees with defendants only as to this last contention.
A. This Court has Jurisdiction Over Plaintiffs' APA Claims.
Defendants allege that there are fatal jurisdictional defects in plaintiffs' counts one and two, claiming that this case does not come within the APA's waiver of sovereign immunity. As developed below, the Court disagrees with defendants on this complex issue because plaintiffs' action does not seek monetary relief, and because the Tucker Act does not preclude the assertion of jurisdiction.
The APA represents a broad waiver of sovereign immunity, but defendants quickly point out that the APA withdraws that waiver where "any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702. As in Megapulse, Inc. v. Lewis, 217 U.S. App. D.C. 397, 672 F.2d 959, 970-71 (D.C. Cir. 1982), the government here contends that the relief sought by plaintiffs is tantamount to a request for specific performance of a "contract", which relief is prohibited by the Tucker Act. Thus, defendants conclude that the APA waiver of sovereign immunity does not apply. The Court rejects this contention.
The Court of Appeals for this Circuit recently set forth the proper analytical framework for this jurisdictional problem. See Maryland Department of Human Resources v. Department of Health and Human Services, 246 U.S. App. D.C. 180, 763 F.2d 1441, 1446 (D.C. Cir. 1985). This Court has jurisdiction over the APA claims pursuant to 28 U.S.C. § 1331 if: (1) the relief sought is within the APA's waiver of sovereign immunity, which is limited to actions "seeking relief other than monetary damages ", 5 U.S.C. § 702 (emphasis supplied), and (2) the Tucker Act does not preclude the invocation of section 702's waiver of sovereign immunity or the assertion of general federal question jurisdiction, 28 U.S.C. § 1331, over plaintiffs' claims. Maryland Department of Human Resources, 763 F.2d at 1446.
The APA does not operate as a waiver of sovereign immunity in actions seeking money damages. 5 U.S.C. § 702. Although the requested relief under counts one and two, which seek to compel defendants to make substantial renovations to the building, would require the expenditure of money by the government, it is clear that plaintiffs are seeking specific monetary relief, not damages. This distinction, which is clearly noted in Maryland Department of Human Resources, 763 F.2d at 1446-48, means that plaintiffs have satisfied prong one of the analysis. The Court now turns to prong two.
Cases against the United States involving over $10,000, such as this one, are committed by the Tucker Act to the exclusive jurisdiction of the United States Claims Court if they are (a) contract claims, or (b) "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department." 28 U.S.C. §§ 1491(a)(1) and 1346(a)(2); Maryland Department of Human Resources, 763 F.2d at 1448. "There is a complex and not completely uniform body of case law dealing with when and to what extent the presence of Tucker Act jurisdiction precludes the availability of relief under the APA." Maryland Department of Human Resources, 763 F.2d at 1449. To sift through this complex case law to determine whether the Tucker Act precludes the APA's waiver of sovereign immunity, the Court must examine whether the APA counts present (a) contract claims, and whether they present (b) statutory claims for damages.
Although plaintiffs' third and eighth causes of action are clearly based on an alleged breach of contract, and, as previously discussed, are thus beyond the jurisdiction of this Court, these APA claims are not so clearly founded on a contract for the purposes of the Tucker Act. See Spectrum Leasing, 764 F.2d at 893 ("A court will not find that a particular claim is one contractually based merely because resolution of that claim requires some reference to a contract."); Megapulse, 672 F.2d at 971 (same). Plaintiffs' APA claims primarily attack an agency action which conflicts with that agency's prior decision. For this reason, the Court is convinced that these are not merely " 'disguised' contract claims." Megapulse, 672 F.2d at 969.
Furthermore, plaintiffs' APA claims in this case are more analogous to the cessation of a grant than a typical government contract. In Maryland Department of Human Resources, a claim based on a grant was held to be within the district court's jurisdiction. As the Court of Appeals for this Circuit stated just this year:
To be sure, Maryland's request for an injunction enjoining HHS from withholding funds is somewhat analogous to a request for specific performance of a contract that obliges the promisor to pay money. But we have found no case in which the contract claims provision of the Tucker Act has been held applicable to a dispute between a state and the federal government over the "contractual" rights and obligations of the "parties" to a federally funded program. Although the principles of contract law undoubtedly have a role to play in such disputes, [citation omitted], we see no reason to assume that what is involved here is a contract within the meaning of the Tucker Act. As the Supreme Court recently noted, "unlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy." Bennett v. Kentucky Department of Education [470 U.S. 656], 105 S. Ct. 1544, 1552 [84 L. Ed. 2d 590] (1985).
763 F.2d at 1449.
In addition to not being disguised government contract claims, plaintiffs' APA claims also are not within Tucker Act jurisdiction over statutory or constitutional claims. The Supreme Court has declared that for such jurisdiction to exist under the Tucker Act, plaintiffs must rely on a substantive source of law that "'can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.'" United States v. Mitchell, 463 U.S. 206, 216-17, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983)(quoting United States v. Testan, 424 U.S. 392, 400, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976)). Because in this case there clearly is no statutory or constitutional provision which, standing alone, commands the payment of money, see United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983), cert. denied, 465 U.S. 1065, 104 S. Ct. 1414, 79 L. Ed. 2d 740 (1984), plaintiffs' APA claims are not within this section of Tucker Act jurisdiction. Therefore, because the Tucker Act does not apply, it cannot preclude the invocation of the APA's waiver of sovereign immunity over plaintiffs' claims. See Maryland Department of Human Resources, 763 F.2d at 1446.
Accordingly, plaintiffs' APA claims are not precluded by the Tucker Act. Thus, this Court has jurisdiction pursuant to the APA and 28 U.S.C. § 1331, only, assuming these APA claims are otherwise properly subject to judicial review. The Court next considers whether the defendants' decision with respect to the shelter is reviewable under the APA.
B. Because There is Ample "Law to Apply" to Defendants' Decision to Close the Shelter, that Decision is Reviewable Under the APA.
Defendants contend that the decision to close the shelter is unreviewable under the APA because that is a decision "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). See generally Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)("Overton Park"); Falkowski v. EEOC, 246 U.S. App. D.C. 274, 764 F.2d 907 (D.C. Cir. 1985). As shown below, however, the Court finds that there exists "law to apply", Overton Park, 401 U.S. at 410, in both the Heckler statement and the Community Services Block Grant Act, 42 U.S.C. § 9910. Accordingly, plaintiffs' APA claims are reviewable and within the Court's subject matter jurisdiction.
"The Supreme Court has traditionally not been sympathetic to arguments that judicial review is not available under the APA." American Friends Service Committee v. Webster, 231 U.S. App. D.C. 265, 720 F.2d 29, 39 (D.C. Cir. 1983). Section 701(a)(2)'s exception to the general rule of judicial reviewability "is a very narrow exception." Overton Park, 401 U.S. at 410. It precludes judicial review only where "there is no law to apply." Id. The Supreme Court recently held that this exception is presumed to govern agency decisions not to enforce a statute, comparing such decisions to unreviewable decisions by prosecutors to refuse to prosecute. Chaney, 105 S. Ct. at 1656. In light of Chaney, the Court of Appeals for this Circuit has held that the Justice Department's decision not to provide counsel for a governmental employee was "analogous to deciding whether to enforce a statute", and thus unreviewable. Falkowski v. EEOC, 764 F.2d at 911.
Chaney and Falkowski involved discretionary agency decisions to refuse to commit limited agency resources to a course of action. In this case, had the government in the first instance refused to act upon CCNV's request to renovate the shelter, these precedents might operate to preclude judicial review. The case at bar, however, concerns a decision to close the shelter in violation of an undisputed prior statement to make at least some renovations. Accordingly, this situation is distinguishable from the decisions at issue in Chaney and Falkowski.
The Supreme Court made this distinction clear in Motor Vehicle Manufacturer's Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)(" State Farm "). That case involved a challenge to the National Highway Safety Administration's revocation of a regulation. Rejecting a claim that the decision was not reviewable, the Court stated:
Revocation of an extant regulation is substantially different than a failure to act. Revocation constitutes a reversal of the agency's former views as to proper course . . . . Accordingly, an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.