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03/13/87 Community For Creative Non v. Samuel R. Pierce

March 13, 1987





Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-01898.


Wald, Chief Judge, Mikva, Circuit Judge, and Leighton,* Senior District Judge.


Appellants, three homeless men, seven persons and organizations providing services to the homeless, and six state legislators and local officials concerned with the problem of the homeless, brought this action to challenge "A Report to the Secretary on the Homeless and Emergency Shelters" (the "Report"), issued under the aegis of the Department of Housing and Urban Development , of which appellee Samuel R. Pierce, Jr. serves as Secretary (the "Secretary"). The Report estimates that the number of homeless people in the nation at any one time is substantially less than the figure that had previously been accepted. Appellants charged that the Report is "unprofessional, inaccurate, and intentionally misleading" in that it grossly underestimates the number of homeless in America. Their complaint alleged a battery of constitutional and statutory violations, and prayed for the Report's rescission.

The district court dismissed the complaint, concluding that appellants lacked standing to bring the action and that the preparation and dissemination of the Report did not constitute "agency action" reviewable under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (1982) (the "APA"). As to all but one claim, we agree that appellants lack standing, since they have failed to establish the causation and redressability elements of Article III standing. As to the remaining claim, for which appellants do have standing, we find that they may be entitled to appropriate relief if they can prove their claim. We therefore affirm in part and reverse and remand in part the district court's dismissal of the complaint. In so holding, we do not reach the question of whether promulgation and issuance of the Report constitutes "agency action" reviewable under the APA. I. BACKGROUND

A. The Report

HUD's Office of Policy Development and Research prepared the Report to meet the Secretary's request for data and information on homelessness. See Report at 1. One of HUD's primary aims was to examine the extent of homelessness nationwide. In HUD's view, "while claims [had] been made by various groups about the size of the problem, little reliable evidence exist[ed] on this question." Report at 3. Prior to the Report, the accepted working estimate for the number of homeless Americans was approximately two million. This figure originated as a rough estimate pronounced in testimony prepared by appellant Community for Creative Non-Violence for the House Committee on the District of Columbia in July 1980 and was subsequently reported as a firm figure in a book written by two CCNV members. M.E. Hombs & M. Snyder, Homeless in America, A Forced March to Nowhere (Washington, D.C. 1982). The same figure emerged from the December 1982 congressional hearings on homelessness in America and was released by the Department of Health and Human Services in November 1983. See Report at 8-9. The HUD Report, however, repudiates these figures: the Report, heralded by HUD as the "definitive" and first accurate study on the subject, states that 250,000 to 350,000 Americans are homeless.

According to its introduction, the Report "is not intended to serve as a prescriptive policy analysis of what should be done, nor as an evaluation of what has been done. Rather, it is to provide as much comprehensive and reliable information as possible in order to inform policy discussion." Report at 3-4. In releasing its findings in May, 1984, HUD invited public and private officials to use the Report in their efforts to address the needs of the homeless. But no policymaker is required to act in reliance upon the Report; the Report itself has no direct effect on any governmental programs for the allocation or distribution of benefits to the homeless; the Report, in sum, is not an operative document.

Service providers and advocates for the homeless denounced the Report's representation of the extent of homelessness in America. They sought to discredit HUD's findings as improperly researched, unsubstantiated, and inaccurate. They also charged that HUD's conclusion was specifically designed to curtail support for increased federal initiatives and to reduce pressure on the government to respond to the problem on a federal level. CCNV approached HUD informally to request it to withdraw the Report. The Secretary declined, and this lawsuit ensued.

B. District Court Proceedings

In June 1984, appellants filed suit in the United States District Court for the District of Columbia. At the same time, they filed a Motion for Preliminary Injunction. The suit charged HUD with five substantive violations. The first four counts pertained to the procedures used in preparing the Report and to the conclusions drawn from the study; the fifth count set out a defamation claim brought on behalf of CCNV. In their first count, appellants alleged that HUD violated the fifth amendment of the Constitution and sections 552 and 553 of the APA by not following the procedural safeguards incident to a rulemaking. Second, appellants alleged that appellee's actions were "arbitrary" and "capricious" in preparing and issuing a Report that is "inaccurate," "misleading," "unprofessional," and "dishonest." Third, appellants averred that in preparing the Report and publicizing its finding, appellee used an advisory committee but did not follow the requirements of the Federal Advisory Committee Act, 5 U.S.C. § 1 et seq.. That Act requires that notice of the formation of an agency advisory committee be published in the Federal Register, that its activities be open to the public, and that a record of its proceedings and recommendations be kept. In their fourth count, appellants accused HUD of violating the civil rights of the homeless by "defin[ing] them out of existence without giving them an opportunity to be heard or defend their rights and interests." Finally, appellants claimed that HUD "specifically defamed and damaged plaintiff CCNV" in the Report and subsequent remarks. Appellants sought a judgment declaring the Report unlawful and an injunction ordering HUD to disavow and rescind it.

In response to appellants' complaint and motion for preliminary injunction, appellee filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted. By Memorandum Order filed September 4, 1984, the district court granted appellee's motion and dismissed the complaint. The court found that appellants lacked standing in that they had failed to allege facts suggesting a substantial likelihood that rescission of the Report would redress their asserted injuries. The court further held that, assuming arguendo appellants had standing, the Report did not constitute judicially reviewable "agency action" within the meaning of the APA. II. ARGUMENT

A. Standing

The "case or controversy" requirement of Article III of the Constitution imposes limitations on the persons who have "standing" to invoke the jurisdictional power of the federal courts. See Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The standing doctrine is designed to confine the courts to adjudicating actual "cases" and "controversies" by ensuring that the complaining party has a concrete interest in the issue and that "the legal question presented to the court will be resolved . . . in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, ...

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