On September 25, 1991, GSA conducted a market survey of available office space in Wyomissing, Pennsylvania. Administrative Record, No. 13. On March 11, 1992, GSA entered into a lease with Hough/Loew Associates, Inc., for 30,000 net usable square feet of office space on the first floor of Berkshire Knoll, located at 1125 Berkshire Boulevard in Wyomissing, Pennsylvania. Administrative Record, No. 17. The Administrative Record does not indicate that GSA notified Reading directly that it had signed a lease with Hough/Loew.
On May 15, 1992, two months after GSA has entered into the new lease, Reading received, for the first time, written justifications from GSA in support of the geographical preferences of SSA, DCMAO, and the IRS. See Administrative Record, No. 20. The City forwarded its rebuttal to these justifications to GSA on June 1, 1992. Administrative Record, No. 20. Reading did not receive any justifications from the Department of Labor and BATF.
Beginning in 1991 through the summer of 1992, Reading sought the assistance of its elected representatives: U.S. Senator Arlen Specter, U.S. Senator Harris Wofford, and U.S. Representative Gus Yatron, to encourage GSA to give the central business area of Reading preference in the relocation of the five agencies from RACC. See Administrative Record, Nos. 7, 11, 18, and 19. GSA had knowledge that Reading was seeking to resolve this issue through these channels. See Administrative Record, Nos. 7, 11, 18, and 19.
In July of 1992, the five agencies: the Department of Labor, Wage and Hour Division and its Bureau of Apprenticeship and Training; SSA; BATF; DCMAO; and the IRS; moved their offices from the East Shore Office Building at RACC to Wyomissing, Pennsylvania. See Administrative Record, No. 18. Meanwhile, unable to resolve the dispute, Reading filed the instant action on July 9, 1992, seeking to require GSA to conduct a procurement that gives "first consideration" to Reading's central business district as the area for relocating the five federal agencies.
III. STANDARD OF REVIEW
The standard of review pertaining to summary judgment is well known. Summary Judgment shall be granted "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 moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). This burden may be discharged by demonstrating that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S. Ct. at 2554 . Where the non-moving party has the burden of proof at trial on an issue for which summary judgment is sought, that party must then make a showing sufficient to establish the existence of the essential elements of her case in order to survive a summary judgment motion. Id. at 322-23, 106 S. Ct. at 2552 . In making such a determination, the appropriate inquiry is whether there is a need for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "Where the full record, taken together could not lead a rational trier of fact to find for the non-moving party, no genuine issue exists for trial." United States v. One 107.9 Acre Parcel of Land, 898 F.2d 396, 398 (3d Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986)).
In applying the standard for summary judgment, our analysis is guided by the following well established rules. All inferences must be drawn in favor of the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), all doubts must be resolved against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) (citations omitted), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and all allegations of the non-moving party that conflict with those of the movant must be taken as true. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513 . However, "the mere existence of some allegedly factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S. Ct. at 2510. If the evidence is merely "colorable" or "not significantly probative", summary judgment may be granted. Id. at 249, 106 S. Ct. at 2511. A party resisting a summary judgment motion "cannot . . . rely merely upon bare assertions, conclusory allegations or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Fed. R. Civ. P. 56(e). A "'response must set forth specific facts showing that there is a genuine issue for trial.'" Gans v. Mundy, 762 F.2d at 341 (quoting Fed. R. Civ. P. 56(e)).
A. THRESHOLD ISSUES
GSA has initially presented a number of procedural arguments concerning this Court's jurisdiction and ability to hear this action. First, GSA contends that this action is not subject to judicial review because the decision to relocate the agencies outside Reading's central business area was committed to its discretion by law under 5 U.S.C. § 701(a)(2). Second, GSA argues that no private cause of action is available to Reading.
Reading brought suit against the Administrator of GSA, the head of a federal agency, "to compel agency action unlawfully withheld," 5 U.S.C. § 706(1), or alternatively, to "hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). In such a case, a right of action is expressly created by the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, which states that "'final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,' [ 5 U.S.C. § 704], at the behest of '[a] person . . . adversely affected or aggrieved by agency action.' [ 5 U.S.C. § 702]." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 231 n.4, 106 S. Ct. 2860, 2866 n.4, 92 L. Ed. 2d 166 (1986).
Reading's action is subject to judicial review under 5 U.S.C. § 704. First, GSA's actions constitute the action of an agency. 5 U.S.C. § 701(b)(1); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820, 28 L. Ed. 2d 136 (1971). Second, there has been "final agency action" in that GSA contends that the central business area of Reading received all the consideration that it was due; the procurement process has reached a conclusion; and the agencies have relocated outside of Reading to Wyomissing, Pennsylvania. 5 U.S.C. § 701(b)(2); see also Franklin v. Massachusetts, 505 U.S. , 112 S. Ct. 2767, 2773, 120 L. Ed. 2d 636 (1992). Finally, this is an action "for which there is no other adequate remedy
in a court" as the issue of whether GSA gave Reading's central business area the requisite "first consideration" will not otherwise arise in litigation. Cf. Bowen v. Massachusetts, 487 U.S. 879, 901-05, 108 S. Ct. 2722, 2736-38, 101 L. Ed. 2d 749 (1988) (The U.S. Claims Court, which has jurisdiction to hear certain claims against the United States, 28 U.S.C. § 1491, is not an adequate substitute for review in the District Court under the APA.).
Reading is sufficiently "aggrieved" by GSA's alleged failure to give "first consideration" to Reading's central business area within the meaning of Executive Order 12072, 43 Fed. Reg. 36,869 (1978), reprinted in 40 U.S.C. § 490 [hereinafter Executive Order 12072], to be entitled to judicial review under 5 U.S.C. § 702. Section 702 grants standing to a plaintiff "adversely affected or aggrieved," i.e. injured in fact, by agency action, and whose injury is also within the "zone of interests" protected by a statute, executive order, or regulation that the agency is alleged to have violated. Clarke v. Securities Industry Ass'n, 479 U.S. 388, 394-96, 107 S. Ct. 750, 754-55, 93 L. Ed. 2d 757 (1987).
An economic study estimates that due to the relocation of the five agencies and approximately 178 to 240 federal jobs, Reading will lose, over the 10-year lease period, $ 2.3 to $ 3.0 million in retail sales, $ 403,057 in property taxes, and $ 1.1 to $ 1.5 million in parking revenues. Plaintiff's Brief, Appendix B. This potential harm is more than sufficient to satisfy the injury in fact prong of the standing analysis. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-88, 93 S. Ct. 2405, 2415-16, 37 L. Ed. 2d 254 (1973).
In addition, injury in fact is not just limited to economic injury. Id. at 686, 93 S. Ct. at 2415 . Here, the relocation of the agencies may inflict upon Reading exactly the type of injury that the Executive Order sought to prevent by weakening Reading and discouraging its development and redevelopment. Executive Order 12072 § 1-101. Thus, Reading's injury is also within the zone of interests protected by the Executive Order. See Clarke v. Securities Industry Ass'n, 479 U.S. 388 at 399-403, 107 S. Ct. 750 at 757-59, 93 L. Ed. 2d 757 . Accordingly, Reading has standing to challenge GSA's alleged failure to give Reading's central business area "first consideration" under the APA.
Once the above requirements are satisfied, the Supreme Court has affirmatively held that a "separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. at 231 n.4, 106 S. Ct. at 2866 n.4 (citations omitted). The two exceptions to this general rule of reviewability are 1) where "statutes preclude judicial review," and 2) where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). We are unaware of any statutes precluding judicial review and GSA claims that its action in this case falls within the latter of these two exceptions.
There is a strong presumption of reviewability of agency action under 5 U.S.C § 702(a)(2). Davis Enter. v. United States Envtl. Protection Agency, 877 F.2d 1181, 1184-85 (3d Cir. 1989) (citation omitted), cert. denied, 493 U.S. 1070, 110 S. Ct. 1113, 107 L. Ed. 2d 1020 (1990). The Supreme Court first discussed section 702(a)(2) in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). The Court noted that this provision is a narrow exception that is applicable only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Id. at 410, 91 S. Ct. at 820-21 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). In Heckler v. Chaney, 470 U.S. 821, 830, 105 S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985), the Court reaffirmed its interpretation of section 701(a)(2) by stating that the exception applies where "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."
The Third Circuit has prescribed three criteria to be considered in determining whether an agency decision is unreviewable under section 701(a)(2). Davis Enter. v. United States Envtl. Protection Agency, 877 F.2d at 1185 (citing Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574, 578-80 (3d Cir. 1979)). To find a decision unreviewable, a court must consider whether:
1) the action involves broad discretion, not just the limited discretion inherent in every agency action . . .; 2) the action is the product of political, military, economic, or managerial choices that are not readily subject to judicial review . . .; and 3) the action does not involve charges that the agency lacked jurisdiction, that the decision was motivated by impermissible influences . . ., or that the decision violates a constitutional, statutory, or regulatory command.