§ 701(a)(2). Defendants' argument for invoking this exception proceeds along the following deductive lines. The major premise is based on the Supreme Court's decision in Heckler v. Chaney, where the Court declared that section 701(a)(2) applies "if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." 105 S. Ct. at 1655. The minor premise of defendants' argument is the plain language of the governing statutes (15 U.S.C. § 637 and section 1207), which defendants contend fails to provide any standards to guide the SBA in exercising its authority to award 8(a) contracts and the Air Force in reaching its contracting goal for hiring small disadvantaged businesses. Thus, they conclude that Chaney applies with equal force to this case, effectively insulating these decisions from judicial review under the APA.
Defendants' Chaney syllogism, while deceptively simple in its logic, is legally flawed in a number of important respects. First, the major premise is valid as far as it goes but ignores the reasons supporting the Court's conclusion of unreviewability. In holding that the Food and Drug Administration's decision to institute enforcement proceedings was presumptively unreviewable under section 701(a)(2), the Court stressed three factors: (1) administrative concerns with allocating scarce agency resources; (2) the similarity between the enforcement proceeding and the prosecutor's indictment decision; and (3) the fact that refusals to act do not involve coercive power by the agency over the individual. Id. at 1656. Defendants have completely failed to demonstrate -- and the Court cannot discern -- any resemblance between a decision not to commence enforcement proceedings and the defendants' decision not to remove the Kelly contract from the 8(a) program. In light of the narrow holding in Chaney,8 the Court cannot conclude, based on defendants' assertions, that the usually strong presumption in favor of judicial review does not apply in this case. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); see also American Horse Protection Ass'n v. Lyng, 258 App. D.C. 397, 812 F.2d 1, 4 (D.C. Cir. 1987) (refusing to apply Chaney to agency's decision not to institute a rulemaking proceeding); Farmworker Justice Fund, Inc. v. Brock, 258 App. D.C. 271, 811 F.2d 613 (D.C. Cir. 1987) (decision not to promulgate rule reviewable to determine whether agency head relied on permissible grounds in reaching decision), vacated as moot, 817 F.2d 890 (D.C. Cir. 1987).
Defendants' minor premise is similarly unacceptable. In Robbins v. Reagan, 250 App. D.C. 375, 780 F.2d 37 (D.C. Cir. 1985), our court of appeals examined the sources of "law" from which a court could draw standards to review agency action. In the absence of clear statutory guidelines, a court can attempt to (1) "discern from the statutory scheme a congressional intention to pursue a general goal"; and (2) examine "the promulgation of regulations or announcement of policies" to detect departures from the agency's stated position. Id. at 45.
Each of these sources exist in abundant supply in this case. First, the SBA Act itself sets forth specific goals for the 8(a) program, see 15 U.S.C. § 631(e)(2), and section 1207 also contains guidance for the Air Force in administering the SDB program. See § 1207(a) and (e). Plaintiffs claim that these goals are being subverted by defendants' failure to allow it to bid competitively on the Kelly contract and defendants have offered no reason, nor can one be perceived, why these goals should not apply to a decision to enter into or discontinue 8(a) contracts. Moreover, the SBA, through SOP 80-05, and the Air Force, through its interim regulations and the Taft Memorandum, have stated their general policies with respect to the contracting decisions challenged by SAGM. By defendants' own admission, therefore, the Court has ample material from which to discern a departure from those policies. See Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 40-44, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). With their major and minor premises in disarray, defendants' ultimate conclusion -- that the actions complained of in the complaint are unreviewable -- must also fall.
B. Availability of Injunctive Relief Against the SBA
Section 5(b)(1) of the Act, 15 U.S.C. § 634(b)(1), provides that "no attachment, injunction, garnishment, or other similar process, mesne or final, shall be issued against the Administrator or his property." Citing Expedient Services, Inc. v. Weaver, 614 F.2d 56 (5th Cir. 1980), Mar v. Kleppe, 520 F.2d 867 (10th Cir. 1975), and other cases, defendants contend that the injunctive relief sought by SAGM may not be awarded against the SBA. Plaintiffs have cited other authority -- including a decision of the court of appeals in Valley Forge Flag Co. v. Kleppe, 165 App. D.C. 182, 506 F.2d 243 (D.C. Cir. 1974) -- that appears to allow injunctive relief when the agency acts in excess of its statutory authority. It is unnecessary, however, to decide the interesting question of whether, and to what extent, section 634(b)(1) bars injunctive relief in this case because no comparable bar to injunctive relief exists with respect to the Air Force. Should this Court find in favor of plaintiffs on the merits, an injunction preventing the Air Force from entering into an 8(a) contract with SBA for the Kelly custodial services would, of course, preclude SBA from maintaining this procurement within the program.
Because the Court could, therefore, grant plaintiffs complete relief without having to enjoin the SBA, it need not volunteer an advisory opinion on the propriety of awarding injunctive relief against the SBA in this instance.
III. Standards of Review
A. Injunctive Relief
The standards governing the issuance of injunctive relief are by now comfortably familiar. The decision to grant or deny injunctive relief is quintessentially a discretionary act for the trial court, see Lemon v. Kurtzman, 411 U.S. 192, 200-01, 36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973), and usually involves balancing, on a case-by-case basis, the harm to the plaintiff if the injunction is denied with the harm to the defendant if it is granted. Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 88 L. Ed. 754, 64 S. Ct. 587 (1944). Injunctive relief remains, however, an extraordinary and drastic remedy, not to be routinely granted and to only lie when the right to relief is clearly established. See, e.g., Ced's Inc. v. EPA, 745 F.2d 1092, 1100 (7th Cir. 1984) ("One of the requirements for a permanent injunction is that the plaintiff must have succeeded on the merits of its claim"), cert. denied, 471 U.S. 1015, 85 L. Ed. 2d 299, 105 S. Ct. 2017 (1985). After establishing his right to relief, a plaintiff seeking an injunction must show that he has suffered irreparable injury and that the remedies available to him at law are inadequate. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982).
B. Summary Judgment
A district court may grant a motion for summary judgment only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), the Supreme Court delineated two inquiries that a district court must undertake before granting summary judgment. First, the movant must show that there is no disagreement as to a material fact, which the Court described as one "that might affect the outcome of the suit under the governing law." In addition, summary judgment is appropriate only if the dispute is not genuine. In this regard, the trial judge should not "weigh the evidence and determine the truth of the matter" but rather perform "the threshold inquiry of determining whether there is a need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 2511. Finally, the Court pointed out that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 2513.
C. Arbitrary and Capricious Action
The gravaman of SAGM's complaint is that defendants' decision to retain the Kelly contract within the 8(a) program constituted an unexplained and unjustified departure from usual agency policy and applicable regulations that SAGM asserts allow graduating firms to competitively bid in these circumstances. Review of such claims is governed by section 706(2)(A) of the APA, which empowers a court to "hold unlawful and set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This power to review agency action is a limited one, however. The Supreme Court has stressed that
The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made."
State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169, 9 L. Ed. 2d 207, 83 S. Ct. 239 (1962)). So long as the agency decision "was based on a consideration of the relevant factors," Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), the reviewing court should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 42 L. Ed. 2d 447, 95 S. Ct. 438 (1974). And it almost goes without saying that plaintiffs carry the burden of demonstrating the arbitrary and capricious nature of the agency action under attack. See, e.g., Mazleski v. Treusdell, 183 App. D.C. 182, 562 F.2d 701, 717 n.38 (D.C. Cir. 1977).
Judicial scrutiny of government procurement decisions is similarly circumscribed. In M. Steinthal & Co. v. Seamans, 147 App. D.C. 221, 455 F.2d 1289 (D.C. Cir. 1971), Judge Leventhal observed that:
in the field of government procurement the courts must be sedulous to heed the admonition that their authority to vacate and enjoin action that is illegal must be exercised with restraint less the courts fall into the error of supposing that they may revise "action simply because [they] happen to think it ill-considered, or to represent the less appealing alternative solution available."