Stickelman v. U.S.

• Decision Date: 21 October 1977
• Docket Number: No. 75-3476,75-3476
• Parties: Elaine S. STICKELMAN, Appellant, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 413

563 F.2d 413

Elaine S. STICKELMAN, Appellant, v. UNITED STATES of America et al., Appellees.

No. 75-3476.

United States Court of Appeals, Ninth Circuit.

Oct. 21, 1977.

Daniel R. Walsh, Carson City, Nev., for appellant.

Lawrence J. Semenza, U. S. Atty., Las Vegas, Nev., Lands and Natural Resources Div., Peter R. Taft, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for appellees.

Appeal from the United States District Court for the District of Nevada.

Before HUFSTEDLER, GOODWIN and ANDERSON, Circuit Judges.

GOODWIN, Circuit Judge:

This is an appeal by a land claimant from a summary judgment for the government.

Elaine S. Stickelman applied for 320 acres in Nevada under the Desert Land Act, 43 U.S.C. § 321, et seq. According to the terms of her entry, she had until February 18, 1970, to make final proof that the land had been reclaimed and cultivated as the Act required.

After expending an alleged $18,000 on parts of the 320 acres, Stickelman was unable to "prove up" her entry. Claiming "unavoidable delay in the construction of irrigation works", she applied for and was granted a two-year extension under 43 U.S.C. § 333.

Ill health and financial reverses again caused Stickelman to fail to "prove up", and she requested a second extension, under 43 U.S.C. § 334. ¹ The Bureau of Land Management (BLM) denied this second request. Stickelman appealed to the Interior Board of Land Appeals (IBLA), which, without a hearing, upheld the BLM's decision.

Stickelman filed in the district court a petition to review the agency's decision. ² In granting the government's motion for summary judgment, the court held: (1) that it did not have jurisdiction to review the denial of an extension sought under 43 U.S.C. § 334; (2) that if the district court did have jurisdiction the plaintiff was entitled to no relief.

Under the Administrative Procedure Act, courts have no jurisdiction to review administrative actions which by law are committed to agency discretion. 5 U.S.C. § 701(a)(2). This proposition, however, is not as easily applied as those who seek to predict the course of adjudication might wish. See Arizona Power Authority v. Morton, 549 F.2d 1231 (9th Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3001 (U.S., June 24, 1977).

The first question in this case is whether the district court was correct in holding that 43 U.S.C. § 334 commits the agency decision to agency discretion.

Judicial review is said to be barred because of agency discretion when the statute is " 'drawn in such broad terms that in a given case there is no law to apply.' S.Rep.No.752, 79th Cong., 1st Sess. 26 (1945)." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1970); Arizona Power Authority v. Morton, supra; Ness Investment Corp. v. United States Department of Agriculture, Forest Service, 512 F.2d 706 (9th Cir. 1975). Yet, over the years, the courts have evolved a concern for citizens pressing applications upstream against a distant bureaucracy. Courts now review many agency activities that Congress probably did not initially consider reviewable, if indeed it considered the question of judicial review at all. See, e. g., Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973). The question here is whether § 334 is another statute which now permits judicial review. The statute must be construed in the light of its legislative history and of related statutes passed at about the same time.

Early in this century, Congress adopted a number of statutes to grant extensions of time to Desert Land Act entrypersons who were having trouble getting water onto their land because of delays in completing irrigation projects. The first such law was 43 U.S.C. § 333, in which the language apparently creates a right to an extension if the individual meets the statutory criteria. The Secretary's only obvious discretion under § 333 applies to the length of the extension to be granted. When § 333 failed to provide adequate relief in all cases, Congress adopted special acts granting certain local groups additional time. These statutes used language that seemed to make the extension a matter of the Secretary's discretion, even though Congress intended extensions to be nearly automatic (except for fraud).

The Act of February 28, 1911, 36 Stat. 960, allowed the Secretary "in his discretion" to grant a further extension to entrypersons in several eastern Washington counties. This law was later described as "granting a further extension" to the beneficiaries. Cong. Rec., 62d Cong., 2d Sess., March 21, 1912, at 3747. The Interior Department apparently interpreted these early statutes as conferring upon the Secretary the same degree of discretion. Letter of Samuel Adams to Congressman Taylor, March 4, 1912, id.

To provide a general solution and avoid the necessity of additional local statutes § 334 was enacted. Congressman Taylor, the bill's drafter and sponsor, described it on the floor as almost identical to § 333 and as granting an extension to all who could make the proper showing. Cong. Record, 62d Cong., 2d Sess., March 21, 1912, at 3747. On the other hand, Congressman Taylor on the floor, and the Committee on the Public Lands in its report on the bill, referred to the granting of the extension as being "left entirely within the discretion of the Secretary" in order to prevent fraud and imposition on the government. Cong. Record, 62d Cong., 2d Sess., March 21, 1912, at 3748; H.Rep.No.394, 62d Cong., 2d Sess., to accompany H.R. 20491.

Congress, when it adopted § 334, thus had before it an ambiguous statement of the Secretary's powers under the new law. On the one hand, the law supposedly was intended to grant an extension to all who qualified, and it supposedly followed a previous statute that narrowly confined the Secretary's discretion. On the other hand, the provision for unlimited discretion was represented to Congress as necessary to prevent fraud. Under the first interpretation the Secretary's action would be reviewable, while under the second it probably would not.

We have to resolve this ambiguity by applying current concepts of administrative law to an act passed when these concepts were in their infancy, and to a statute which, understandably, was not written with current standards in mind. Accordingly, we look at both the statutory language and the avowed congressional purpose in the light of modern administrative law. This statute was designed to protect what Congressman Taylor called the "rights" of entrymen, "to allow to all desert-land entrymen an additional three years' extension * * *, where it is shown to be necessary * * *." Cong. Rec. at 3747. This statement shows that Congress intended to give entrypersons rights under this statute rights which today would be subject to review under 5 U.S.C. § 702 and 28 U.S.C. § 1331. ³

The specific rights emerge from the statutory language. If the entryperson meets the criteria of the first proviso of § 334, he or she is entitled to the Secretary's exercise of discretion on the claim for an extension. There are thus two stages in an extension decision; the first stage requires a finding of fact, and the second stage involves an exercise of discretion. The finding of fact is reviewable under the general principles of5 U.S.C. § 701(a) because no statute precludes judicial review. Further, there is no indication that the finding is committed to agency discretion. While the Secretary's discretion is undoubtedly great, the legislative history provides guidelines for its exercise, ⁴ and thus we cannot say that it is entirely beyond judicial review. The district court erred in holding that it was without jurisdiction to review the denial of Stickelman's application.

The next question involves the definition of the rights Stickelman had to participate in the two-step decision-making process. The statute itself gives her none, and accordingly the provisions of 5 U.S.C. § 554 do not apply. To have rights she must find the deprivation of a property interest under the reasoning of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and its progeny. It is possible to have a property interest in a potential benefit, but the person, Roth emphasizes, " * * * clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." 408 U.S. at 577, 92 S.Ct. at 2709. If Stickelman can show that she meets the requirements of the first proviso to § 334, she has a "legitimate claim of entitlement" to the Secretary's exercise of his discretion in her case and to have that discretion exercised within the broad framework of Congress's purpose. This was sufficient to give her some rights in the process.

That Stickelman had some rights to participate does not mean that she had a right to a full evidentiary hearing. The current trend of decisions rejects the automatic grant of such a hearing in the absence of statute. Instead, the cases look to procedures that will provide fairness to the individual without unduly restricting governmental action. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Wolff...