this context is the opportunity to submit a final written opposition to HUD's proposed recoupment. In formulating this final written opposition, HACK may have access to all non-privileged materials in HUD's possession which fall within HACK's discovery request.
In addition, HACK is entitled to some proof that its final written submission has been considered by someone with authority to render a binding decision on HUD's behalf. HACK is also entitled to some reasonably detailed statement of the reasons underlying whatever final decision HUD makes.
This final statement, however, need not be as detailed as that which would be required to satisfy an "arbitrary and capricious" review under § 706(2)(A) of the Administrative Procedures Act. HACK's citation to cases which have applied the arbitrary and capricious test, such as Motor Vehicle Manuf. Assoc. v. State Farm, 463 U.S. 29, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983), misperceives the nature of the due process analysis. The arbitrary and capricious test supplies the standard of review applicable to the substance of an administrative decision on appeal; it aids a court in determining, albeit with great deference, whether an agency's decision was right or wrong. To this end, courts applying the test demand a reasonably detailed record and a sophisticated statement of reasons. The record required under the arbitrary and capricious test, however, is not, in itself, a prerequisite to due process, but instead merely permits a reviewing court to determine whether an agency's action was rational, i.e., consistent with the facts. The agency's actions, however, and not the record required under the arbitrary and capricious test, are what must satisfy due process.
That is not to say that due process does not require some reasoned response from HUD. In order to show that HUD's determination, should it be adverse to HACK, was drawn from information available to both parties, HUD "should state the reasons for [its] determination and indicate the evidence [it] relied upon." Goldberg, 397 U.S. at 271. This statement, however, "need not amount to a full opinion or even formal findings of fact and conclusions of law." Id.11 In order to satisfy procedural due process, HUD need only provide a minimal, and perhaps even symbolic, recitation of the factors it took into account in arriving at its final determination. Such a meager showing might well be rejected on appeal as inadequate under the arbitrary and capricious test, but the problem would not be one of due process.
An Order as to the foregoing shall issue of even date herewith.
For the reasons stated in the Memorandum Opinion issued of even date herewith, it is, by the Court, this 20th day of April, 1989,
ORDERED, that the plaintiff's motion under Fed. R. Civ. 59(e) to alter or amend the judgment of the Court issued on October 13, 1989, shall be, and hereby is, GRANTED; and it is further
ORDERED, that the judgment of the Court issued on October 13, 1988, and that portion of the Memorandum Opinion of the Court issued on December 12, 1988, which holds that the defendants' actions were not inconsistent with the requirements of the due process component of the Fifth Amendment, shall be, and hereby are, VACATED; and it is further
ORDERED, that the plaintiff's motion for summary judgment shall be, and hereby is, GRANTED as to the question of defendant's compliance with the requirements of the due process component of the Fifth Amendment, and the defendant's motion for summary judgment shall be, and hereby is, DENIED; and it is further
ORDERED, that, within 30 days of this Order, plaintiff shall be provided access to all non-privileged materials in defendant's possession which fall within the scope of plaintiff's request for documents, as contained in the attachment to the letter dated February 24, 1987, from John D. Blankinship, to then-Secretary Samuel Pierce; and it is further
ORDERED, that, within 60 days of this Order, plaintiff shall submit a final written opposition to the defendant's plan to "recoup" alleged overpayments made to the plaintiff between the years 1981 and 1983; and it is further
ORDERED, that, within 180 days of this Order, defendant shall, through an individual with authority to render a binding decision in this matter, issue a final decision, which decision shall contain a description of the reasons for the action taken and address plaintiff's contentions in reasonable detail; and it is further
ORDERED, that, until issuance of the final decision referred to in the preceding paragraph, the defendant shall be enjoined from withholding from any subsidy payment to the plaintiff any amounts in furtherance of defendant's plan to "recoup" alleged overpayments made to the plaintiff between the years 1981 and 1983; and it is further
ORDERED, that this action shall stand dismissed from the dockets of this Court without costs to either party, subject only to the plaintiff's right to make application to the Court in the event the defendant fails to comply with the foregoing.