Vigil v. Rhoades, No. 90-2235

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SEYMOUR, BARRETT and BALDOCK; BALDOCK
• Citation: 953 F.2d 1225
• Parties: 2 NDLR P 188 Grover VIGIL, Charlene Vigil, as General Guardians and Next Friends for Ashley Vigil, a minor person, Kee Sandoval, Judy Sandoval, as General Guardians and Next Friends for Kristofferson Sandoval, a minor person, Angela Allen, as General Guardian and Next Friend for Angelo Allen, a minor person, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees, v. Everett R. RHOADES, M.D., Director of the Indian Health Service, his agents, employees, and successors, Otis R. Bowen, Secretary of the Department of Health and Human Services, his agents, employees, and successors, the Department of Health and Human Services, Donald O. Hodel, Secretary of the Department of the Interior, his agents, employees, and successors, Ross Swimmer, Assistant Secretary of the Interior-Indian Affairs, Bureau of Indian Affairs, United States Department of the Interior, United States of America, Defendants-Appellants.
• Docket Number: No. 90-2235
• Decision Date: 15 January 1992

Page 1225

953 F.2d 1225 2 NDLR P 188 Grover VIGIL, Charlene Vigil, as General Guardians and Next
Friends for Ashley Vigil, a minor person, Kee Sandoval, Judy
Sandoval, as General Guardians and Next Friends for
Kristofferson Sandoval, a minor person, Angela Allen, as
General Guardian and Next Friend for Angelo Allen, a minor
person, individually and on behalf of all other persons
similarly situated, Plaintiffs-Appellees,
v.
Everett R. RHOADES, M.D., Director of the Indian Health
Service, his agents, employees, and successors, Otis R.
Bowen, Secretary of the Department of Health and Human
Services, his agents, employees, and successors, the
Department of Health and Human Services, Donald O. Hodel,
Secretary of the Department of the Interior, his agents,
employees, and successors, Ross Swimmer, Assistant Secretary
of the Interior-Indian Affairs, Bureau of Indian Affairs,
United States Department of the Interior, United States of
America, Defendants-Appellants. No. 90-2235. United States Court of Appeals,
Tenth Circuit. Jan. 15, 1992.

Joel R. Jasperse, Northern New Mexico Legal Services, Gallup, N.M., for plaintiffs-appellees.

Andrew C. Mergen, Atty., Environmental and Natural Resources Div., Dept. of Justice, Washington, D.C. (Richard B. Stewart, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., William L. Lutz, U.S. Atty., Ronald F. Ross, Raymond Hamilton, Asst. U.S. Attys., Albuquerque, N.M., John A. Bryson, Attorney, Environmental and Natural Resources Div., Dept. of Justice, Washington, D.C., Duke McCloud, Attorney, Dept. of Health and Human Services, Rockville, Md., Duard R. Barnes, Asst. Sol., Dept. of the Interior, Washington, D.C., with him on the brief), for defendants-appellants.

Page 1226

Before SEYMOUR, BARRETT and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

The government appeals from the district court's grant of summary judgment in favor of the Plaintiffs-appellees, a certified class of handicapped Indian children who have received or will be eligible to receive clinical services from the Indian Health Service (IHS) pursuant to the Indian Children's Project (Project). The IHS is an agency within the Department of Health and Human Services. It began the Project in the late 1970's in conjunction with the Bureau of Indian Affairs (BIA), a Department of the Interior agency, in order to provide clinical services to handicapped Indian children residing in the southwestern United States. In 1985, the IHS decided that Project staff would be better utilized as consultants to other IHS programs nationwide. IHS subsequently terminated the Project clinical services and reassigned its staff without affording notice and comment procedures.

The Plaintiffs brought this suit seeking declaratory and injunctive relief. They claimed that the termination of services violated the federal trust responsibility to Indians, the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., the Snyder Act, c. 115, 42 Stat. 208 (1921) (codified as amended at 25 U.S.C. § 13), the Indian Health Care Improvement Act, Pub.L. No. 94-437, 90 Stat. 1400 (1976) (codified as amended at 25 U.S.C. §§ 1601-1680j), various agency rules and regulations, and their Fifth Amendment due process rights. Plaintiffs moved for partial summary judgment, Fed.R.Civ.P. 56(c), and the government moved for dismissal for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or, in the alternative, summary judgment. The district court held that the termination was subject to judicial review and, as a legislative rule, was subject to the APA's notice and comment procedures as set forth at 5 U.S.C. § 553. Vigil v. Rhoades, 746 F.Supp. 1471 (D.N.M.1990). Given the IHS's concession that it did not provide notice and comment, the district court employed a traditional equitable analysis and granted affirmative injunctive relief requiring the IHS to reinstate the Project. Id. at 1483-87.

The government argues that (1) the termination was not judicially reviewable under the APA because it was committed to agency discretion, 5 U.S.C. § 701(a)(2), or, in the alternative, (2) the termination was not subject to notice and comment procedures under the APA because it was not a legislative rule, id. § 553, and (3) the termination was not arbitrary and capricious or an abuse of discretion under the APA, id. § 706(2)(A). We find no error in the district court's analysis, see 746 F.Supp. 1471, and we affirm the judgment.

I. Background

The background of the Indian Children's Project is clouded in bureaucratic haze. Nevertheless, we recount it here largely from undisputed facts in the record and Congressional hearings testimony. The Project was funded pursuant to two Acts of Congress, the Snyder Act, 25 U.S.C. § 13, and the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. §§ 1601-1680j. The Snyder Act, Congress' formal legislative authorization for Indian welfare, requires the Secretary of Health, Education and Welfare to "direct, supervise, and expend [Congressional appropriations] for the benefit, care, and assistance of the Indians throughout the United States for ... relief of distress and conservation of health." 25 U.S.C. § 13. ¹ In addition, Title II of the IHCIA provides for supplemental appropriations for several broad categories of Indian health care, including "mental health." 25 U.S.C. § 1621(a)(4)(D). Under the mental health provision, Congress authorized the IHS to establish "[t]herapeutic and residential treatment centers." Id. These centers were to come about pursuant

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to "a major cooperative care agreement between the IHS and the BIA using suitable BIA facilities in convenient locations." H.R.Rep. No. 1026, 94th Cong., 2d Sess. 81 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 2652, 2719.

Congress did not fund the treatment centers for disturbed children; however, the IHS allocated $292,000 and 11 positions from its fiscal year 1978 general IHCIA Title II appropriation to the IHS Headquarters mental health branch in Albuquerque, New Mexico for the planning and development of a handicapped children's project, the Indian Children's Project. The Project then began providing services to handicapped Indian children partially in an effort to assess the need for a treatment center--instead of using BIA facilities as Congress had envisioned, the IHS planned on constructing its own diagnostic and treatment center. IHS later requested a $3.5 million appropriation from Congress for the center. Department of the Interior and Related Agencies Appropriations for 1980: Hearings before the House Subcommittee on the Department of the Interior, 96th Cong., 1st Sess., pt. 8 at 245-252. Congress did not fund the center, but appropriated $300,000 for fiscal year 1980 to the IHS for development and expansion of the Project to a national level in conjunction with the BIA. ²

BIA began participating in the Project in 1979 by allocating $350,000 of year-end funds for contract services. By 1980, the BIA and IHS had entered a memorandum of agreement that provided for a joint effort to serve handicapped Indian children through direct or contracted clinical treatment. App., Ex. 6. Apparently, the effort to persuade Congress to fund a treatment center was forgotten, and the Project staff concentrated primarily on diagnosis and treatment of handicapped Indian children in the Southwest. This effort continued on a regional basis until IHS terminated direct clinical services in August 1985. As of August 1985, the staff was following 426 handicapped children. BIA continues to follow handicapped Indian children pursuant to its educational responsibilities under the Education for All Handicapped Children Act of 1975 (EAHCA), Pub.L. No. 94-142, 89 Stat. 774 (codified as amended at 20 U.S.C. §§ 1400 et seq.). The government contends that Plaintiffs are eligible for a "comprehensive array" of services pursuant to the EAHCA; however, the record contains no documentary evidence that services comparable to the former Project services are available in the reservation communities of the 426 children followed as of August 1985.

II. Disposition

Pursuant to the APA, any person legally aggrieved by a final agency action presumptively is entitled to judicial review thereof. See 5 U.S.C. §§ 702, 704 (provisions regarding presumptive review and finality respectively). Nevertheless, a federal district court's subject matter jurisdiction over an APA claim arises under 28 U.S.C. § 1331. See Chrysler Corp. v. Brown, 441 U.S. 281, 317 n. 47, 99 S.Ct. 1705, 1725 n. 47, 60 L.Ed.2d 208 (1979) (citing Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). This jurisdiction, however, is not without exception. The APA provides that an agency

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action is reviewable "except to the extent that--(1) statutes preclude judicial review; or (2) [the] agency action is committed to agency discretion by law." 5 U.S.C. § 701. If either APA preclusion applies, federal subject matter jurisdiction under 28 U.S.C. § 1331 does not exist. See Califano, 430 U.S. at 105, 97 S.Ct. at 984 (§ 1331 jurisdiction subject to federal "preclusion-of-review statutes"). See also Robbins v. Reagan, 780 F.2d 37, 57 (D.C.Cir.1985) (Bork, J., dissenting). In its Fed.R.Civ.P. 12(b)(1) motion, the government argued that IHS's Project termination decision fell under the § 701(a)(2) preclusion for actions "committed to agency discretion by law." We review this jurisdictional argument de novo. See Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 641 (10th Cir.1990). We also review the summary judgment determination de novo, using the same standard as the district court. Osgood v. State Farm Mut. Auto Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The parties agree that no material factual disputes...