Board of Ed., Cincinnati v. Department of HEW

Citation396 F. Supp. 203
Decision Date18 April 1975
Docket NumberNo. C-1-74-185.,C-1-74-185.
CourtU.S. District Court — Southern District of Ohio

396 F. Supp. 203


No. C-1-74-185.

United States District Court, S. D. Ohio, W. D.

April 18, 1975.

396 F. Supp. 204
396 F. Supp. 205
396 F. Supp. 206
396 F. Supp. 207
396 F. Supp. 208
C. R. Beirne, Beirne & Wirthlin, John A. Lloyd, Jr., Frost & Jacobs, Cincinnati, Ohio, for plaintiffs

Ralph Winkler, Asst. U. S. Atty., for defendants.


DAVID S. PORTER, District Judge:

This action is brought by the Board of Education of the City School District of the City of Cincinnati, Ohio, and by Robert L. Braddock, Virginia K. Griffin, Henry C. Kasson, Charles D. Lindberg, Mary T. Schloss, individually and as members of the Board of Education of the City of Cincinnati. Accordingly, these parties are hereinafter referred to collectively as the "plaintiffs" and sometimes simply as "Cincinnati." The Cincinnati Board of Education will occasionally be referred to only as the "Board" or "CBE," and these designations should be read as including, where

396 F. Supp. 209
appropriate, the named members thereof. The City School District also will be sometimes referred to simply as the "School District" or "CSD." These parties appear as defendants in another case pending before this court sub nom. Bronson v. Board of Education of the City School District of the City of Cincinnati, C-1-74-205, a case which in some respects is a companion action to the suit presently at issue, and which in other respects is a sequel to a prior desegregation litigation in this Court sub nom. Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio, 1965), aff'd, 369 F.2d 55 (6 Cir., 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L. Ed.2d 114 (1967), and aff'd on other issues, 419 F.2d 1387 (6 Cir., 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). The procedural posture of the Bronson case is set out in our opinion in that case of January 30, 1973 (doc. 57), (appeal pending before the Sixth Circuit)

The defendants in the case at bar are the Department of Health, Education and Welfare (Region 5) (hereinafter, the "Department" or "HEW"); Caspar Weinberger, Secretary, Department of Health, Education and Welfare (herein, the "Secretary"); Virginia Trotter, Assistant Secretary, Office of Education (the "Assistant Secretary"); Terrell Bell, Commissioner of Education (the "Commissioner"); and Mary Jane Calais, Regional Commissioner, Office of Education (the "Regional Commissioner" or "Ms. Calais"). These parties are designated collectively as the "Defendants" or "HEW". The Office of Education is sometimes designated as "OE", and the Office of Civil Rights as "OCR".

As will be more fully developed herein, the Cincinnati City School District applied in December, 1973, to the Department for an award of funds under the Emergency School Aid Act (ESAA), 20 U.S.C. § 1601 et seq. (1972), re-enacted and amended by P.L. 93-380, §§ 641-646 (August 21, 1974). On April 25, 1974, the School District was determined by the Assistant Secretary to be ineligible for such funding (four grounds of ineligibility were given), whereupon this action was initiated to secure review of that determination, declaratory and injunctive relief, and an award of funds. The funds sought have been held in escrow pursuant to an agreed order approved by this Court issued June 21, 1974 (doc. 5), and amended June 27, 1975 (doc. 6).

The case is submitted on cross-motions for summary judgment pursuant to Rule 56, Fed.R.C.P. The parties have submitted lengthy memoranda with affidavits and documents in support of their motions and reply memoranda, in addition to the materials submitted in connection with the request of plaintiffs for a preliminary injunction. The Court has carefully considered the submissions of the parties and has engaged in extensive research of its own. The parties have concentrated their fire on certain issues. The Court has endeavored to consider all the issues raised by the pleadings and the evidence. Additionally, the Court has addressed issues proper for it to consider sua sponte, e. g., jurisdiction. Specifically, we considered the applicability of the Administrative Procedure Act as well as the Declaratory Judgment Act as a form of remedy, infra at p. 210. If any argument made by the parties is not discussed herein it is because it was found without merit or not resolvable in view of the resolution of other issues herein upon which they are dependent.



The Court has jurisdiction over this suit, which challenges HEW's determination that plaintiff is ineligible for ESAA funds, under its federal question jurisdiction. 28 U.S.C. § 1331(a). Adams v. Richardson, 351 F.Supp. 636, 640 (D.D.C., 1972), injunction entered, 356 F.Supp. 92 (D.D.C., 1973), aff'd en

396 F. Supp. 210
banc, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973); cf. Kelley v. Metropolitan Co. Bd. of Ed., Tenn., 372 F.Supp. 528, 537-538 (M.D.Tenn., Feb. 23, 1973), injunction entered, 372 F.Supp. 540 (M. D.Tenn., Dec. 19, 1973). Important questions arising under the Constitution and laws of the United States are involved, and substantially more than $10,000 exclusive of interest and costs is claimed.1

In view of our determination that jurisdiction exists under § 1331(a), it is unnecessary to decide whether 28 U.S.C. § 1343(4) would provide an alternative, independent basis for jurisdiction in this action. But compare Kelley, supra, at 372 F.Supp. 528, 537, with Adams v. Richardson, supra, 351 F.Supp. 636, 640 (conclusion of law Para. 2). Nor is it necessary to consider the appropriateness of assuming jurisdiction over this action under 28 U.S.C. § 1361, a basis not suggested by the parties. But see Kelley, supra, at 538-539, 540, 543; and Adams v. Richardson, supra, at 640.

Plaintiffs seek relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. For reasons that will appear, we also treat this case as one brought under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Of couse, the Court recognizes that neither the Declaratory Judgment Act nor the Administrative Procedure Act afford any additional basis for jurisdiction. Getty Oil Co. (Eastern Operations), Inc. v. Ruckelshaus, 467 F.2d 349 (3 Cir. 1972), cert. den., 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). Rather, the purpose of the Administrative Procedure Act is to define procedures and the manner of judicial review of agency action but not to confer jurisdiction. Bramblett v. Desobry, 490 F.2d 405 (6 Cir., 1974); Bruton v. Schnipke, 370 F.Supp. 1157, 1159 (E.D.Mich.1974);2 The Declaratory Judgment Act likewise is remedial only and not jurisdictional. See, e. g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950), holding that the Declaratory Judgment Act "enlarged the range of remedies available in the federal courts but did not extend their jurisdiction."

We hold that the provisions of these Acts are applicable, and we have formed our analysis of the issues herein accordingly. Cf. Kelley, supra; Adams v. Richardson, supra. See infra, Part IV. Our analysis is also shaped by the procedural posture of the case, namely, its submission on cross-motions for summary judgment. Rule 56, Fed.R.Civ.P.


In holding that the Administrative Procedure Act (APA) is applicable, we take the view that the grant process under the ESAA is not "agency action

396 F. Supp. 211
. . . committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Also see: Northeast Community Organization, Inc. v. Weinberger, 378 F.Supp. 1287, 1294 (D.Md.1974); Kelley, supra; Kelsey v. Weinberger, 363 F.Supp. 521 (D.D.C., 1973), rev'd on other grounds, 162 U.S.App.D.C. 159, 498 F.2d 701 (1974). The discretion vested in HEW under the ESAA is narrowly circumscribed, not only by the specific provisions of that Act, but also by the provisions of Title VI of the Civil Rights Act of 1964 (P.L. 88-352), 42 U.S.C. §§ 2000d et seq.3 Adams v. Richardson, supra. Also see, Kelsey v. Weinberger, supra. Indeed, we feel that a final determination of ineligibility under the ESAA program is fully analogous to similar action taken under the 1964 Act wherein judicial review under the APA is specifically provided for. 42 U.S.C. § 2000d-2

Accordingly, this Court's scope of review is defined by 5 U.S.C. § 706. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L. Ed.2d 136 (1971). In our judgment, this case is one in which neither review for substantial evidence nor trial de novo is appropriate. Overton Park, at 414, 91 S.Ct. 814. Rather, in this case the requisite review is that mandated by the Court in Overton Park, supra, except that in this instance the appropriate officials are the Assistant Secretary of HEW, the Commissioner of Education, and the Regional Commissioner of the Office of Education (OE), Region 5. Specifically, under the dictates of § 706 and Overton Park:

"The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U.S. 666, 676-677 80 S.Ct. 1288, 1295-1296, 4 L.Ed.2d 1478 (1960). This determination naturally begins with a delineation of the scope of the Secretary's authority and discretion. L. Jaffe, Judicial Control of Administrative Action 359 (1965). As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether on the facts the Secretary's decision can reasonably be said to be within that range.
* * * * * *
"Scrutiny of the facts does not end, however, with the determination that the Secretary has acted

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