Before ROBINSON, Chief Judge, and WALD and BORK, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1985.CDC.280
Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-01963)
Opinion for the Court Per Curiam.
Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge BORK.
PER CURIAM: This appeal is part of the ongoing controversy surrounding the tragic and growing problem of homelessness in the District of Columbia. At issue is the decision by the federal government, through the Department of Health and Human Services , to close a federally-owned building at Second and D Streets, N.W., which appellant, the Community for Creative Non-Violence , has operated as a shelter for the homeless since January 15, 1984. *fn1 The federal government had committed itself in November of 1984 to convert the facility into a model shelter. This litigation ensued when CCNV and the federal government were unable to reach agreement on the extent of repairs necessary to fulfill this commitment.
Appellants seek reversal of the District Court's grant of appellees' motion for summary judgment on appellants' claim that the decision to close the shelter was arbitrary and capricious and thus violative of the Administrative Procedure Act , 5 U.S.C. § 701 et seq. (1982). Appellants also challenge the dismissal of their promissory estoppel claim that the government is precluded from reversing its pledge to build a model shelter. Appellees contend that the District Court lacked jurisdiction to consider these claims, that the APA claims are non-reviewable, and that the District Court exceeded its authority in requiring appellees to assist in locating adequate alternative shelter for the Second and D Streets residents.
We affirm the result reached by the District Court except to the extent that the court imposed requirements on the appellees that go beyond resolution of the present dispute. I. BACKGROUND
The current controversy began in December 1983 when CCNV petitioned the Department of Health and Human Services' Federal Task Force on the Homeless to allow CCNV to utilize the then-vacant building at Second and D Streets, N.W., as a temporary shelter for the homeless. The General Services Administration , which owns the building, issued a permit to HHS allowing use of the building as a shelter. HHS then issued a three-month license to the District of Columbia government, which assigned the license to CCNV. The shelter opened on January 15, 1984.
CCNV subsequently requested that the shelter be kept open on a permanent basis. GSA indefinitely extended HHS' license. HHS offered to extend the District's license as well, but the District government refused the offer. Thereafter, HHS informally allowed CCNV to continue operation of the shelter.
CCNV then commenced efforts to secure funds to renovate the building. The Chairman of the Federal Task Force, Dr. Harvey R. Vieth, refused CCNV's request for federal funds, maintaining that homelessness was the responsibility of local governments and that requests for renovation or support services should be directed to the District government. Plaintiff Mitch Snyder responded by commencing a fast on September 15, 1984.
After 50 days, CCNV and HHS reached an apparent agreement -- renovations would be completed at federal expense. Margaret M. Heckler, then Secretary of HHS, informed appellants that President Reagan had requested that HHS transform the facility "into a model physical shelter structure to house the homeless in the District of Columbia." *fn2 Secretary Heckler outlined seven specific renovation goals. *fn3 HHS officials later determined that funding for the shelter project would be drawn from monies appropriated for the Community Services Block Grant Act. *fn4
Emergency repairs were completed between December 1984 and February 1985 at a cost of approximately $90,000. However, the cooperation induced by Snyder's fast was short-lived. Disagreement regarding the scope of the federal commitment became apparent when CCNV submitted its renovation plan to the government. The GSA estimated that the CCNV proposal would cost $10 million. *fn5 HHS officials insisted they had never agreed to any renovation beyond the seven specific goals Secretary Heckler had announced -- renovation that the government projected as costing $2.7 million. HHS formally authorized the $2.7 million expenditure on May 30, 1985. CCNV was provided with the government's renovation plan after threatening to abandon responsibility for the operation of the shelter.
CCNV subsequently protested the alleged inadequacy of the government's renovation plan and filed suit in the District Court on June 17, 1985. The original complaint sought to compel the defendants to perform all the renovation work CCNV believed was necessary to create a model shelter. CCNV demanded that the government take over operation of the shelter if it was not willing to renovate on this basis. Complaint P1, 28, Robbins v. Reagan, Civ. No. 85-1963 (filed June 17, 1985), reproduced in Supplemental Joint Appendix 4, 13.
On June 21, 1985, Dr. Vieth announced that the government intended to close the shelter. Three reasons for the decision were announced: the deteriorated condition of the building, CCNV's refusal to cooperate with the GSA renovation plan and the absence of an organizaton willing to assume responsibility for operation of the shelter. Appellants sought and were granted a temporary restraining order barring appellees from posting notices of the future closing in the shelter. On June 26, appellants filed an amended complaint challenging the government's decision. Appellees then filed a motion to dismiss or, in the alternative, for summary judgment. After briefing and argument of the motion, the District Court remanded the matter to HHS, directing the agency to conduct notice and comment proceedings and to present a reasoned analysis for its decision. On July 26, the District Court issued a temporary restraining order, enjoining closure of the shelter pending completion of the remand proceedings and any subsequent review in the District Court.
On July 31, after analyzing the comments filed with HHS, Dr. Vieth recommended to Charles D. Baker, Undersecretary of HHS, that the shelter be closed but that the closure be delayed until August 31, 1985, "in order to permit the Task Force to exhaust all reasonable efforts to make alternative shelter arrangements." Dr. Vieth suggested that the $2.7 million be utilized in the relocation effort. J. App. 24-25. Undersecretary Baker adopted these recommendations and emphasized that:
the most crucial step that must be taken . . . is to bring to successful conclusion [the Task Force's] efforts with the government of the District of Columbia and local shelter providers to assist them in finalizing plans already discussed with them to identify and make ready for occupancy alternative shelter arrangements for the residents of the shelter at 425 Second Street, N.W.
On August 19, 1985, the District Court issued its opinion dismissing or granting summary judgment for appellees on all of appellants' claims. *fn6 In an order accompanying the opinion, the District Court authorized the government to "reclaim the shelter" provided that the government had first "devise[d] appropriate interim and long range plans to eliminate homelessness in the Nation's Capital . . ." *fn7
On August 20, 1985, this court denied appellants' emergency motion for expedited appeal without prejudice to appellants' right, if the District Court denied a stay pending appeal, to move for expedited consideration of such a stay in this court. The District Court then denied appellants' motion for stay pending appeal and on August 26, 1985, appellants moved this court for a stay pending appeal and for an emergency argument. Argument was heard on August 29, 1985, and the next day this court issued a per curiam order denying the motion and expediting the appeal. The denial was based on "appellees' in-court representation that they interpret the District Court order as preventing the federal government from reclaiming the building and closing the shelter until appellees have made specific arrangements for suitable alternatives for 'each and every person' who is currently utilizing the shelter." Robbins v. Reagan, No. 85-5864 (D.C. Cir. Aug. 30, 1985) (order).
During the pendency of this appeal, the government continued its efforts to locate alternatives to the Second and D Streets shelter. The government ultimately awarded $3.7 million to the D.C. Coalition for the Homeless to assist in the renovation and operation of two shelter facilities. A 600-bed, temporary men's shelter has been established in Anacostia. A 60-bed shelter for women is now operating on Florida Avenue, N.W. While opened amidst considerable controversy, these facilities are providing much needed food, health care and shelter at a time of critical need.
Dissatisfied with the proposed alternatives, CCNV petitioned the District Court on October 10, 1985, to authorize discovery and conduct an evidentiary hearing on the adequacy of the alternative facilities. On October 15, 1985, the District Court postponed consideration of appellants' motion until the government announced a definite date for closing the shelter. Although the government had yet to make such an announcement, on November 19, 1985, the District Court ruled that the shelter could be closed as of 5:00 p.m. on November 21, 1985. This court temporarily stayed the District Court's order on November 20, 1985.
CCNV has also petitioned this court to require the government to complete emergency repairs to the Second and D Streets shelter. II. SECTION 1331 JURISDICTION OVER THE APA CLAIMS
The government has raised two threshold challenges to CCNV's claim that the decision to close the shelter violates the APA: first, that the District Court did not have subject matter jurisdiction over this claim; and second, that the decision is not subject to judicial review as there is no federal law to apply in resolving this controversy. *fn8
The District Court limited its jurisdictional inquiry in this case to determinations of whether the Tucker Act *fn9 or the doctrine of sovereign immunity precludes review. After answering both questions in the negative, the District Court presumed, without analysis, that it has subject matter jurisdiction over the APA claims pursuant to 28 U.S.C. 1331, which confers jurisdiction on district courts over "all civil actions arising under the Constitution, laws or treaties of the United States." Appellees maintain that there is no federal law governing the decision to grant or revoke federal funds for maintenance of the shelter or to close it altogether, and thus that appellants' claims do not "arise under" federal law so as to be cognizable under Section 1331. Appellees' Brief at 17.
Appellees' jurisdictional challenge relies on the Supreme Court's decision in Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), for the proposition that the APA does not itself serve as an implied grant of federal subject matter jurisdiction. Although this is an accurate characterization of the holding in Sanders, it does not inexorably lead to the conclusion that Section 1331 provides no basis for jurisdiction over APA claims. The Sanders Court demonstrated its rejection of appellees' reasoning in discussing the significance of an amendment to Section 1331 which eliminated the amount in controversy requirement:
The obvious effect of this modification subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate.
Id. at 105. Indeed, the Court applied just that standard, concluding in Sanders that "federal question jurisdiction under 28 U.S.C. § 1331 [was specifically] precluded by [the Social Security Act]." Id. at 109. The Court thus declined to review the agency decision only because Congress specifically precluded judicial review of that particular type of decision under the Social Security Act. Id. at 109.
In decisions subsequent to Califano v. Sanders, the Supreme Court has framed the analysis in the same terms: jurisdiction over APA challenges to federal agency action is vested in district courts unless a preclusion of review statute, such as the Social Security Act provision at issue in Sanders or Section 10(a)(2) of the APA, *fn10 specifically bars judicial review in the district court. For example, in Chrysler Corp. v. Brown, 441 U.S. 281, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979), Justice Rehnquist, writing for a unanimous court, stated that "jurisdiction to review agency action under the APA is found in 28 U.S.C. § 1331." Id. at 317 n.47 (citing Califano v. Sanders.) He undertook no further analysis of any jurisdictional issue. Instead, his analysis of whether the District Court has authority to rule on the propriety of the challenged agency action focused solely on whether any statute barred such review. Id. See also Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 608 n.5, 56 L. Ed. 2d 570, 98 S. Ct. 2002 (1978) ("jurisdiction in this action to review a decision of the Secretary of the Interior is clearly conferred by 28 U.S.C. § 1331(a)").
This court has also recognized that Section 1331 vests jurisdiction to review agency action in the district court. In Megapulse, Inc. v. Lewis, 217 U.S. App. D.C. 397, 672 F.2d 959 (D.C. Cir. 1982), Judge Wilkey wrote: "Even though the APA itself technically grants no jurisdiction, power to review any agency action under the APA exists under 28 U.S.C. 1331." Id. at 966 n.30 (emphasis supplied). See also Association of National Advertisers v. FTC, 199 U.S. App. D.C. 29, 617 F.2d 611, 619 (D.C. Cir. 1979) ("general federal question jurisdiction . . . gives the district courts the power to review agency action absent a preclusion of review statute"); Center for Full Employment v. Blumenthal, 196 U.S. App. D.C. 155, 606F.2d 1062, 1065 n.11 (D.C. Cir. 1979) (jurisdiction to challenged agency action is found in Section 1331).
Professor Davis has reached the identical conclusion in his Administrative Law Treatise. As Davis states: "No one is ever denied review of reviewable action of a federal agency for want of a court with jurisdiction because, unless exclusive jurisdiction to review is conferred on some other court [or withdrawn by statute] a district court always has jurisdiction to review federal administrative action under 28 U.S.C. § 1331. . . . " 4 K. Davis, Administrative Law Treatise § 23:3 at 128-129 (2d ed. 1983).
Additional support for this result is found in application of three factors courts have traditionally considered in deciding whether an action arises under federal law: (1) the relation between the case and the federal law, (2) whether the federal law is applicable by its own force, and (3) the substantiality of the federal claim. *fn11 See generally 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure 3562-3564 (2d ed. 1984). The allegations in the present case satisfy each of these requirements.
The relation requirement dictates that the federal claim be a "direct element" of the controversy. Wright, Miller & Cooper (supra) § 3562 at 32. The concern is that the mere presence of a tangential federal issue not transform an action into a federal case where the rights involved are rooted in state law. This federal-state tension is notably absent in the present case, which concerns action allegedly promised and withheld by a federal official acting under authority derived solely from a federal ...