East Oakland-Fruitvale Planning Council v. Rumsfeld, C-70-66.

• Citation: 310 F. Supp. 546
• Decision Date: 30 March 1970
• Docket Number: No. C-70-66.,C-70-66.
• Parties: EAST OAKLAND-FRUITVALE PLANNING COUNCIL, a non-profit California corporation, Plaintiff, v. Donald RUMSFELD, Director, Office of Economic Opportunity, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

310 F. Supp. 546

EAST OAKLAND-FRUITVALE PLANNING COUNCIL, a non-profit California corporation, Plaintiff, v. Donald RUMSFELD, Director, Office of Economic Opportunity, Defendant.

No. C-70-66.

United States District Court, N. D. California.

March 30, 1970.

Legal Aid Society of Alameda County, Oakland, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty., William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., for defendant.

ORDER

OLIVER J. CARTER, District Judge.

This action is brought by the East Oakland-Fruitvale Planning Council hereinafter referred to as Council, a nonprofit corporation organized under the laws of the State of California. The action is against the Director of the Office of Economic Opportunity hereinafter referred to as Director, for declaratory and injunctive relief, adjudging that the Director is under a statutory duty to consider and determine whether or not Council's program is entitled to continue receiving federal funds despite the fact that a proposed federal grant has been disapproved by the governor of the State of California.

In its amended complaint, plaintiff asserts jurisdiction under 5 U.S.C. § 702, 28 U.S.C. §§ 1331, 1361.

Council was organized in August, 1968, to conduct a pilot advocacy planning project in the East Oakland area under a research and demonstration grant by the Office of Economic Opportunity hereinafter referred to as OEO. The research and demonstration grant originally had a termination date of August 31, 1969, but this was later extended to September 30, 1969. The Council operated for a year and then an application for a grant to operate an additional year was filed in August, 1969. On September 4, 1969, OEO approved the application and submitted the proposal to the governor of California for approval or disapproval in accordance with the provisions of Section 242 of Title II of the Economic Opportunity Act hereinafter referred to as the Act, 42 U.S.C. § 2834, which provides:

"In carrying out the provisions of this subchapter, no contract, agreement, grant, loan, or other assistance shall be made with, or provided to, any State or local public agency or any private institution or organization for the purpose of carrying out any program, project, or other activity within a State unless a plan setting forth such proposed contract, agreement, grant, loan, or other assistance has been submitted to the Governor of the State and such plan has not been disapproved by the Governor within thirty days of such submission, or, if so disapproved, has been reconsidered by the Director and found by him to be fully consistent with the provisions and in furtherance of the purposes of this subchapter. * * *"

On October 29, 1969, the governor of California disapproved the proposed grant. After informal notification of the governor's disapproval of the proposal, Council entered into negotiations with representatives of the governor's office to determine whether the governor's objections could be satisfied by modifications to the proposal. Negotiations were unsuccessfully terminated on December 2, 1969. During negotiations, plaintiff has been operating under provisional funding by OEO.

In its amended complaint, Council alleges the following facts. Council operated successfully during its first year. During that year, its program was continually evaluated by independent evaluators contracted for this purpose by the Director. All evaluations reflected favorably on Council's program and established that the program was fully consistent with the provisions and in furtherance of the purposes of the Act. The governor's disapproval of the second year's proposed grant was based upon philosophical objections to the nature of Council's program. Representatives of the Director have recommended to him that he exercise his power to override the governor's disapproval. The Director has informed Council that its program in all respects conforms to the Director's overall plan. Despite all of this, the Director refuses to afford an opportunity to plaintiff and its representatives for a hearing and refuses to proceed in any manner to determine whether he will override or sustain the governor's disapproval.

Council's claim for relief depends upon the contention that the Director is obligated by the Act to either override or actually affirm the governor's disapproval. The Director has moved for a dismissal of the action on the grounds that he has complete discretion to determine whether he will or will not consider overriding the governor's disapproval. The Court concludes that the defendant's motion to dismiss should be granted.

Council supports its contention that the Director is under a duty to consider overriding the governor's disapproval by reference to Section 242 of the Act, which is quoted above. Both parties agree that the Director has the power to override the governor's disapproval and grant funds to projects such as Council's as long as they are consistent with the provisions of and in furtherance of the purposes of Title II of the Act. However, Council argues further that the Congressional grant of such power carries with it the affirmative duty to determine whether or not the project in question is one which qualifies for his overriding of the governor's disapproval. If it does, Council argues, the Director is then required to override the governor's disapproval and approve the proposed grant.

It is apparent that if the Court accepts Council's contention, the Act must be interpreted either to provide the governor of the state in which the activity is proposed, with a disapproval power which has practically no force or effect except to cause delay, or to provide the governor with a disapproval power limited to disapproving only those proposals which are inconsistent with and not in furtherance of the purposes of Title II of the Act. This interpretation necessarily follows because presumably, the project for which the proposed grant is intended must have been fully consistent with the provisions and in furtherance of the purposes of Title II of the Act, before the...