Philadelphia Council of Neighborhood Organizations v. Coleman, Civ. A. No. 77-180.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Herbert G. Zahn, Asst. Atty. Gen., Philadelphia, Pa., for Commonwealth defendants
• Citation: 437 F. Supp. 1341
• Parties: PHILADELPHIA COUNCIL OF NEIGHBORHOOD ORGANIZATIONS, Poplar Stop the Tunnel Committee, Coalition for Better Transportation in the City, Philadelphia—People United to Save Humanity (P.U.S.H.), Disabled in Action of Pennsylvania, Inc., Resurrection, Friends of the Earth of Delaware Valley, Consumers Education and Protective Association, United Northeast Civic Association, Northeast Transportation Action Coalition, National Association for the Advancement of Colored People, North Philadelphia Branch, Frances A. Markovitz and Juanita H. Wooten, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. William T. COLEMAN, Jr., Secretary of Transportation of the United States, Robert E. Patricelli, Urban Mass Transportation Administrator of the United States, William T. Sherlock, Secretary of Transportation of the Commonwealth of Pennsylvania, The City of Philadelphia and Frank L. Rizzo, Mayor of the City of Philadelphia, Defendants.
• Decision Date: 12 September 1977
• Docket Number: Civ. A. No. 77-180.

437 F. Supp. 1341

PHILADELPHIA COUNCIL OF NEIGHBORHOOD ORGANIZATIONS, Poplar Stop the Tunnel Committee, Coalition for Better Transportation in the City, Philadelphia—People United to Save Humanity (P.U.S.H.), Disabled in Action of Pennsylvania, Inc., Resurrection, Friends of the Earth of Delaware Valley, Consumers Education and Protective Association, United Northeast Civic Association, Northeast Transportation Action Coalition, National Association for the Advancement of Colored People, North Philadelphia Branch, Frances A. Markovitz and Juanita H. Wooten, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
William T. COLEMAN, Jr., Secretary of Transportation of the United States, Robert E. Patricelli, Urban Mass Transportation Administrator of the United States, William T. Sherlock, Secretary of Transportation of the Commonwealth of Pennsylvania, The City of Philadelphia and Frank L. Rizzo, Mayor of the City of Philadelphia, Defendants.

Civ. A. No. 77-180.

United States District Court, E. D. Pennsylvania.

September 12, 1977.

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Michael Churchill, Public Interest Law Center of Philadelphia, Harold E. Kohn, Philadelphia, Pa., for plaintiffs

David W. Marston, U. S. Atty., Robert N. DeLuca, Asst. U. S. Atty., Philadelphia, Pa., for Federal defendants.

Herbert G. Zahn, Asst. Atty. Gen., Philadelphia, Pa., for Commonwealth defendants.

Louis J. Goffman, Bernard Chanin, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for City of Philadelphia and Frank L. Rizzo.

OPINION

RAYMOND J. BRODERICK, District Judge.

I. Introduction

Plaintiffs, a group of civic and community organizations and individuals, have brought this action¹ for declaratory and injunctive relief to prohibit the United States Secretary of Transportation (Secretary), the Administrator of the Urban Mass Transportation Administration (UMTA Administrator),² the Secretary of the Pennsylvania Department of Transportation, and the City of Philadelphia and its Mayor, Frank L. Rizzo, from funding, constructing, or proceeding in any activities to facilitate the building in Philadelphia, Pennsylvania of a project entitled "Center City Commuter Rail Connection" (CCCRC or Tunnel).³ The project challenged by plaintiffs involves a four-track, 1.7 mile commuter rail Tunnel connecting the existing Penn Central Suburban Station at 16th Street and John F. Kennedy Boulevard with a new underground station to be constructed between 10th, 12th, Market, and Filbert Streets. The Tunnel will join the existing

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tracks of the former Reading Railroad system with the tracks of the former Penn Central system, thus connecting the two independent regional commuter railroad systems into one interrelated commuter rail system. A substantial portion of the Tunnel will be financed by a capital assistance grant from the Federal Government. A contract between the City of Philadelphia and the United States which estimated the cost to be $300,000,000 was signed on January 12, 1977. Under the contract, the Federal Government has agreed to pay $240,000,000 plus 80% of certain additional costs defined in the contract as extraordinary costs

Jurisdiction for this action has been predicated on 28 U.S.C. §§ 1331, 1361, 1337, 1343(4); 42 U.S.C. § 1857h-2(a)(1); 33 U.S.C. § 1365(a)(1) and the principles of pendent jurisdiction. In their 61 page complaint the plaintiffs allege that the defendants' decision to construct the Tunnel violates a number of Federal and State statutory and constitutional provisions.⁴

The City and the Federal defendants filed a joint motion to dismiss or for summary judgment.⁵, ⁶ The plaintiffs have filed a cross-motion for summary judgment.

II. Scope Of Court's Review Of Administrative Decision Re Tunnel

The initial inquiry, which must precede an examination of the administrative decision to build the Tunnel, must focus on the scope of this Court's review. One thing certain, it is not the function of this Court to substitute its judgment as to whether the Tunnel should or should not be built. Whether the determination to build the Tunnel was a wise decision, or even a desirable one, is not for the Court to decide. The district court does not sit as a super-agency empowered to substitute its judgment for that of the agency. Evidence-weighing must be left to the agency making the policy decision. County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, Civ. Nos. 77-6049, 77-6050 (2d Cir., Filed August 25, 1977). As stated by Judge Skelly Wright in Ethyl Corp. v. Environmental Protection Agency, 176 U.S.App.D.C. 373, 408, 541 F.2d 1, 36, cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976), "It is settled that we must affirm decisions with which we disagree . . .." It is our obligation, however, to give thorough consideration to each and every one of plaintiffs' allegations in making the review mandated by § 706(2)(A) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), which provides that the reviewing court shall:

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . .

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The parties agree that this is the standard to be used by the Court in reviewing the administrative decision. The parties are in total disagreement, however, as to whether the Court is limited to examining the administrative record, as urged by defendants, or whether material outside the administrative record should be considered, as argued by plaintiffs. Surprisingly, both sides rely on Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) in support of their divergent contentions.

In Overton Park, the Court held that the proper standard for review of informal agency action is whether the action of the agency is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" as provided in § 706(2)(A) of the APA. In delineating this standard for review, the Supreme Court stated, 401 U.S. at 416-417, 91 S.Ct. at 823-824:

To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

The Supreme Court rejected the substantial evidence standard by pointing out that § 706(2)(E) of the APA is applicable only with respect to agency action taken pursuant to rulemaking authority or when the agency action is based on a public adjudicatory hearing. The Supreme Court also rejected the de novo review standard, concluding that such review is authorized by § 706(2)(F) only in two circumstances: where the agency action is adjudicatory in nature and the agency's fact-finding procedures are inadequate or where issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. Overton Park held that neither situation was presented by the administrative action under review, and concluded that the agency decision was subject to review only under the provisions of §§ 706(2)(A), (B), (C) and (D) of the APA, which confine a court to determining whether the agency acted within the scope of its authority; whether the decision made was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; and finally whether the agency conformed to the necessary procedural requirements.

As in Overton Park, the instant case involves neither agency action taken pursuant to rulemaking authority, nor is it based upon an adjudicatory hearing. Here, the agency action was not adjudicatory in nature and the plaintiffs are not seeking enforcement. In fact, the agency's decision to approve the grant is virtually identical to the agency action which the Supreme Court examined in Overton Park.

In Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the Supreme Court reaffirmed the use of the arbitrary, capricious or abuse of discretion standard. Judge Skelly Wright interpreting Overton Park and Camp in Ethyl Corp. v. Environmental Protection Agency, supra, 541 F.2d at 34, said:

The arbitrary and capricious standard of review is a highly deferential one. It presumes agency action to be valid. . . Moreover, it forbids the court's substituting its judgment for that of the agency, and requires affirmance if a rational basis exists for the agency's decision.

This is not to say, however, that we must rubber-stamp the agency decision as correct. To do so would render the appellate process a superfluous (although time-consuming) ritual. Rather, the reviewing court must assure itself that the agency decision was "based on a consideration of the relevant factors." Moreover, it must engage in a "substantial inquiry" into the facts, one that is "searching and careful." (citations and footnotes omitted).

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Plaintiffs contend that the Court should not confine itself to the administrative record in making its determination as to whether the administrative decision to finance the building of the Tunnel was arbitrary, capricious, or an abuse of discretion. It is the plaintiffs' position that they should be permitted to introduce evidence outside the administrative record in order to show that the Department of Transportation's decision to finance the Tunnel was arbitrary, capricious, or an abuse of discretion. It is our opinion that the APA and the case law require this Court in this case to confine its review to the administrative...