The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
Plaintiffs brought these actions to require the Department of Health and Human Services ("HHS") to monitor and enforce the states' compliance with their emergency assistance (EA) plans. Specifically, plaintiffs seek to have HHS compel the states to fully adhere to their commitments to provide emergency shelter assistance ("ES") (either actual shelter or cash payments). The plaintiffs include two homeless families who have been denied emergency shelter assistance, one from Maryland and one from Illinois; the National Union of Homeless (NUH), an organization comprised of homeless or formerly homeless people; and the National Coalition for the Homeless (NCH), an advocacy and service organization.
Plaintiffs state three claims against HHS for which they seek declaratory and injunctive relief under the Administrative Procedure Act (the "APA"):
(1) failure to monitor the states for compliance with their EA plans as required by regulations; (2) abdication of all enforcement actions permitted under the statute and regulations; and (3) arbitrary and capricious enforcement -- ie.) enforcement when EA is improperly granted, but not when it is improperly denied. The crux of plaintiffs' claim is that HHS has allowed states to systematically deny ES to eligible homeless families.
This matter is now before the Court on the defendants' motion to dismiss. The defendants assert as grounds for the motion that this Court lacks jurisdiction over the subject matter of this action, and plaintiffs have failed to state a claim upon which relief can be granted.
The defendants raise three issues as to the justiciability of this case and the reviewability of plaintiffs' claims: (1) the defendants argue that the plaintiffs do not meet the constitutional criteria for standing because their injuries have been caused by the states and are not likely to be redressed through the relief sought against HHS, (2) they assert that the case is not reviewable under the APA, 5 U.S.C. § 701(a)(2), because under Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985), enforcement decisions are presumed to be unreviewable as acts committed to agency discretion, (3) and finally relying on Council for the Blind v. Regan, 228 U.S. App. D.C. 295, 709 F.2d 1521 (1983), they assert that the case is unreviewable under the APA, 5 U.S.C. § 704, because plaintiffs have adequate remedies through individual hearings, or through suits directly against the states. Because this Court concludes that the plaintiffs lack standing, the Court will not address the last two issues.
The EA provisions are found within those covering aid to families with children under Title IV-A of the Social Security Act ("the SSA"). See 42 USC §§ 603(a)(5) and 606(e)(1). AFDC is the core of Title IV-A. EA, on the other hand, is an optional program in which approximately 28 states participate. The states must specify in their EA plans the types of services they wish to provide, such as emergency shelter, and their plans must provide that EA will be provided forthwith. 45 C.F.R. § 233.120(a). They are reimbursed by the federal government for 50% of the funds which they spend on the program. 42 U.S.C. § 603(a)(5).
Congress intended that the EA program would not have all of the procedural trappings of the AFDC program. Quern v. Mandley, 436 U.S. 725, 744, 98 S. Ct. 2068, 2079, 56 L. Ed. 2d 658 (1978). Thus, the Court in Quern concluded that state provisions for EA, unlike those for AFDC, can have more restrictive eligibility standards than those recommended in the statute. The Court held that § 606(e) imposes permissive, not mandatory, standards of eligibility on participating states, and that therefore, a state could restrict EA to AFDC recipients and those presumptively eligible for AFDC. States, however, cannot completely and automatically exclude AFDC recipients from eligibility for EA. Blum v. Bacon, 457 U.S. 132, 102 S. Ct. 2355, 72 L. Ed. 2d 728 (1982).
There are no enforcement provisions in the statute or regulations which specifically refer to EA, as the statute and regulations refer to the public assistance plans in general. The Act at 42 USC § 604 (a) provides for the withholding of payments to states found by HHS to be in substantial noncompliance with any provision required by § 602 (a) to be included in the plan. HHS has the discretion to withhold all payments or just those for the part of the plan affected. Some of the provisions of § 602 (a) apply to the plan as a whole, while others refer specifically to AFDC and therefore apply only to AFDC. Quern, 436 U.S. at 741-742, 98 S. Ct. at 2077-2078. The requirements of § 602(a) deal mainly with the administration of the plan, although they place certain substantive obligations upon the states. See Canaday v. Koch, 608 F. Supp. 1460, 1471 (S.D.N.Y. 1985). As discussed above, the provision of EA is not one of the substantive requirements. Plaintiffs have not identified requirements of § 602(a), the violation of which is resulting in the denial of shelter to eligible families.
The relevant monitoring and enforcement regulations are found at 45 CFR § 201.6(a) (withholding) and §§ 201.10 - 201.13 (review and audit). These regulations appear to apply to the states' plans as a whole, which include all family assistance programs under Titles I, IV-A, VI, X, XIV, XVI, and XIX of the SSA. Section 201.6(a) authorizes withholding of payments to a state in whole or in part when the state's public assistance plan or administration of the plan fails to comply with federal requirements such as those in 42 U.S.C. § 602. The provisions in §§ 201.10 - 201.13 provide the basis for determining that action under § 201.6 is necessary. Section 201.10 provides that HHS will review the states' adherence to federal requirements and to the other provisions of their plans. HHS is to conduct a "continuing observation" of the states' quality control systems. § 201.10(b). Quality control systems are used to monitor case errors, which include underpayment and wrongful denials of assistance. 45 C.F.R. § 205.40. Section 201.12 provides that HHS will conduct audits to determine whether states are properly spending funds. Finally, § 201.13 (b) provides that if the "reviews reveal serious problems with respect to compliance with any Federal requirement, the State agency is required to correct its practice so that there will be no recurrence of the problem in the future."
Section 201.10 provides the strongest support for plaintiffs' argument that HHS is required to monitor the states' adherence to their EA provisions. However, the enforcement regulations clearly focus on the federal requirements. For a program such as AFDC, the eligibility standard is a federal requirement, but for EA, the states have wide latitude in determining eligibility, Quern, supra, although at a minimum they must not automatically exclude AFDC recipients. Blum, supra.
The constitutional requirements for standing are (1) a concrete injury which is more than a generalized grievance shared by the population at large; (2) an injury which is fairly traceable to the actions of the defendant; and (3) an injury which is substantially likely to be redressed by relief against the defendant. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). The standing inquiry should not be a mask for a court's view of the merits of the case. See Allen v. Wright, 468 U.S. 737, 782, 82 L. Ed. 2d 556, 104 S. Ct. 3315, 3341 (Brennan, J., dissenting). The lack of any other person who would have standing to seek redress for a ...