Starke v. Secretary, US Dept. of Housing, CIV-76-0286-D.

• Decision Date: 02 June 1977
• Docket Number: No. CIV-76-0286-D.,CIV-76-0286-D.
• Citation: 454 F. Supp. 477
• Parties: Henry C. STARKE, Plaintiff, v. SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Robert H. Breeden, Director Area Office, U. S. Department of Housing and Urban Development, and James B. White, Executive Director, Oklahoma City Urban Renewal Authority, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

454 F. Supp. 477

Henry C. STARKE, Plaintiff, v. SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Robert H. Breeden, Director Area Office, U. S. Department of Housing and Urban Development, and James B. White, Executive Director, Oklahoma City Urban Renewal Authority, Defendants.

No. CIV-76-0286-D.

United States District Court, W. D. Oklahoma.

September 14, 1976.

Memorandum Opinion June 2, 1977.

COPYRIGHT MATERIAL OMITTED

Henry C. Starke, pro se.

Woodrow H. McConnell, Oklahoma City, Okl., for plaintiff.

David L. Russell, U. S. Atty. by Richard F. Campbell, III, Asst. U. S. Atty., Oklahoma City, Okl., for defendants Secretary and Breeden.

Jerry L. Salyer and Gregg R. Renegar, Oklahoma City, Okl., for defendant White.

ORDER

DAUGHERTY, Chief Judge.

In this action Plaintiff seeks judicial review of Defendants' decision denying Plaintiff relocation payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 through § 4655 inclusive (hereinafter called the "Policies Act"). Plaintiff filed a Petition For Review with this Court, alleging that the Defendants' decision was not in accordance with the law. Plaintiff alleges that Defendants did not comply with 42 U.S.C. § 4630 in making the decision. 42 U.S.C. § 4630 provides that:

"Notwithstanding any other law, the head of a Federal agency shall not approve any grant to, or contract or agreement with, a State agency, under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after January 2, 1971, unless he receives satisfactory assurances from such State agency that —

(1) fair and reasonable relocation payments and assistance shall be provided to or for displaced persons, as are required to be provided by a Federal agency under sections 4622, 4623, and 4624 of this title."

In the Petition For Review, Plaintiff alleges that he has exhausted all administrative remedies. Defendants filed herein, pursuant to Rule 56(b), Federal Rules of Civil Procedure, a Motion For Summary Judgment and, pursuant to Rule 12(b), Federal Rules of Civil Procedure, a Motion To Dismiss. In support of the Motion To Dismiss Defendants contend that this Court lacks jurisdiction over the subject matter of this action and that the complaint fails to state a claim upon which relief can be granted. Upon due consideration, the Court finds and concludes that, for the following reasons, Defendants' Motion For Summary Judgment and Motion To Dismiss should be overruled.

MOTION FOR SUMMARY JUDGMENT

Defendants' Motion For Summary Judgment filed herein should be denied as an inappropriate procedural means to judicially review the decision of the Secretary of the United States Department of Housing and Urban Development denying Plaintiff's claim for relocation payments under 42 U.S.C. § 4622(c). Nickol v. United States, 501 F.2d 1389 (Tenth Cir. 1974); Heber Valley Milk Company v. Butz, 503 F.2d 96 (Tenth Cir. 1974).

MOTION TO DISMISS

Defendants contend that the Court should dismiss the action on the grounds that the Court lacks jurisdiction over the subject matter. Defendants contend that the determination made by the Defendants was committed to agency discretion by law and therefore not reviewable by this Court, 5 U.S.C. § 701(a)(2). The Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, provides for judicial review of certain agency action. 5 U.S.C. § 702 provides that:

"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

The denial of a relocation payment claim under 42 U.S.C. § 4622 is administrative agency action which an aggrieved party has a right to have judicially reviewed under 5 U.S.C. § 702. Federal agency action under Title II of the Policies Act of 1970, 42 U.S.C. §§ 4621-4638, is subject to review under the Administrative Procedures Act. Lewis v. Brinegar, 372 F.Supp. 424 (W.D. Mo.1974). There have been a number of recent cases which have held that the sections of the Policies Act, with the exception of 42 U.S.C. § 4651, are judicially enforceable and that agency action under those sections is subject to judicial review. See Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (Eighth Cir. 1974); Jones v. District of Columbia, Redevelopment Land Agency, 162 U.S.App.D.C. 366, 499 F.2d 502 (1974); Beaird-Poulan, Inc. v. Department of Highways, State of Louisiana, 497 F.2d 54 (Fifth Cir. 1974), cert. den. 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670; Lathan v. Volpe, 455 F.2d 1111 (Ninth Cir. 1971); Whitman v. State Highway Commission of Missouri, 400 F.Supp. 1050 (W.D.Mo. 1975); La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971) affirmed 488 F.2d 559 (Ninth Cir. 1973) cert. den. 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147. The instant case is concerned not with 42 U.S.C. § 4651 but with 42 U.S.C. § 4622 and is therefore within those sections subject to judicial review.

Defendants' Brief in Support of Motion to Dismiss cites Will-Tex Plastics Mfg., Inc. v. Department of Housing and Urban Development, 346 F.Supp. 654 (E.D.Pa.1972) affirmed 478 F.2d 1399 (Third Cir.), as authority for Defendants' contention that the Defendants' determination of Plaintiff's claim for relocation payments under 42 U.S.C. § 4622 was committed to agency discretion by law. In the Will-Tex case the Plaintiff sought injunctive relief to halt all redevelopment programs in the City of Philadelphia and all federal assistance for such projects until and unless Plaintiff, a tenant in a property acquired by the Redevelopment Authority of the City of Philadelphia, was offered just compensation for machinery and equipment that the Plaintiff had placed on the premises and was provided with a written statement of and summary of the basis for the amount offered. Plaintiff alleged in Will-Tex that the Defendant had failed to comply with 42 U.S.C. § 4651(3) and (6) and 42 U.S.C. § 4652. The Court's discussion of the legislative history of the Policies Act was concerned with the applicability of 42 U.S.C. § 4602(a) to that case. 42 U.S.C. § 4602(a) provides:

"The provisions of section 4651 of this title create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation."

In Will-Tex the Court specifically noted that Plaintiff's allegations were under Title III of the Policies Act, 42 U.S.C. §§ 4651-4655 and not under Title II. The decision in the Will-Tex case dismissing Plaintiff's action pursuant to 42 U.S.C. § 4602(a) is not applicable in the instant case. 42 U.S.C. § 4602(a) is expressly limited in its application to 42 U.S.C. § 4651, as by its explicit terms it applies only to that section. For a discussion of the legislative history of the Policies Act see Barnhart v. Brinegar, 362 F.Supp. 464, 467 (W.D.Mo.1973). The Court in Barnhart analyzes the legislative history of 42 U.S.C. § 4602(a) and concludes that, under this section, Congress did not intend to prevent judicial review of agency action under any sections of the Policies Act other than 42 U.S.C. § 4651. As stated before, the instant case is concerned not with 42 U.S.C. § 4651 but rather with 42 U.S.C. § 4622. Plaintiff's allegation in this action is that the Defendants failed to comply with provisions of Title II of the Policies Act, 42 U.S.C. §§ 4621-4638. Plaintiff makes no allegations concerning provisions of Title III of the Policies Act. For these reasons, the Court concludes that the Will-Tex decision is not controlling in this matter.

In light of the above discussion the Court concludes that this Court has, pursuant to the Administrative Procedure Act, jurisdiction over the subject matter of this action.

Defendants also contend that this action should be dismissed on the grounds that the complaint fails to state a claim upon which relief can be granted. In considering a Motion To Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, the allegations in the Complaint must be taken as true. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Dewell v. Lawson, 489 F.2d 877 (Tenth Cir. 1974). The Complaint is construed favorably to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). And a Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cruz v. Beto, supra; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hudson v. Harris, 478 F.2d 244 (Tenth Cir. 1973). In applying the above standard to the instant case, the Court concludes that Plaintiff has stated a claim upon which relief may be granted.

In view of the foregoing each of Defendants' Motions should be overruled. Defendant will answer within fifteen (15) days.

It is so ordered this 14th day of September, 1976.

ON THE MERITS

This is an action seeking judicial review of Defendants' decision denying relocation payments to Plaintiff under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 through 4655 inclusive (Policies Act). Plaintiff has filed a Petition For Review and a Brief in support thereof wherein it is alleged that Plaintiff has exhausted all of his administrative remedies and that Defendants' denial of relocation payments to Plaintiff was not in accordance with law. Defendants Secretary of HUD (Secretary) and Robert H. Breeden (Breeden) have filed an Answer and Response to Plaintiff's Petition For Review and Plaintiff has replied to said Response. Defendant James B. White (White) has filed an Answer and Brief in support thereof.

From the record submitted for review and stipulated to by the parties herein, it appears...