661 F. 2d 230 - Antone v. R Block

This case presents the question whether the Department of Agriculture's (Department) administration of federal food programs on Indian lands pursuant to the Food Stamp Act of 19771 violates both the mandate for expeditious implementation in the Act, Pub.L. No. 95-113, § 1303(a), 91 Stat. 979 (1977) codified at 7 U.S.C. § 2011 note (Supp. III 1979) and the requirements of section 706(2) of the Administrative Procedure Act (APA), 5 U.S.C. § 706 (1976). The United States District Court for the District of Columbia held that the Department's timetable for implementation of certain Indian-related portions of the Act (7 C.F.R. § 283.5(m), 44 Fed.Reg. 35904-35943 (June 19, 1979)) violated section 1303(a). Antone v. Bergland, No. 78-2173 (D.D.C. Nov. 14, 1979). We reverse.

The Food Stamp Act of 1977, which was enacted on September 29, 1977 as an amendment to the Food Stamp Act of 1964,2 provides for several reforms of importance for reservation-dwelling Indians. The relevant reforms include: (1) concurrent operation of the Food Stamp Program (i. e., distribution of coupons to be exchanged for food) and the Food Distribution Program (i. e., direct distribution of food), 7 U.S.C. § 2013(b) (Supp. III 1979); (2) provision for direct administration of the programs by Indian Tribal Organizations as an alternative to state administration, 7 U.S.C. §§ 2013(b), 2020(d) (Supp. III 1979); (3) full reimbursement of Tribal Organization administrative expenses relating to the programs, 7 U.S.C. §§ 2013(b), 2025(a) (Supp. III 1979); (4) a requirement that states continuing to administer the programs consult in good faith with the tribal governments about program operations, 7 U.S.C. § 2020(d) (Supp. III 1979); and (5) improvement of the nutritional value of the food package supplied to Indians. 7 U.S.C. § 612c note (Supp. III 1979). Although the 1964 Act (under which all qualifying Indian households were eligible to participate in the Food Stamp Program) was to remain in effect until the Department could implement the 1977 Act reforms, § 1303(a), Congress indicated its desire for speedy implementation of the 1977 provisions by including the following language in section 1303(a), 7 U.S.C. § 2011 note (Supp. III 1979) of the Act:

The Secretary of Agriculture shall implement the Food Stamp Act of 1977 as expeditiously as possible consistent with the efficient and effective administration of the food stamp program.

The legislative history of this provision suggests that Congress envisioned a delay of six to nine months between the effective date of the Act (October 1, 1977) and the issuance of implementing regulations.3

As required by section 4(c) of the Act, 7 U.S.C. § 2013(c) (Supp. III 1979), the Department conducted a rulemaking proceeding regarding, in part, the reforms we have mentioned. 5 U.S.C. § 553 (1976). Because agency priority was given to other provisions of the 1977 Act,4 proposed regulations for implementing the reforms were not issued until December 8, 1978, more than fourteen months after enactment of the legislation. 43 Fed.Reg. 57798-57820 (Dec. 8, 1978). Final regulations were published on June 19, 1979, almost twenty-one months after passage of the Act. 7 C.F.R. § 283. 5(m), 44 Fed.Reg. 35932-35933 (June 19, 1979). The final regulations contained a timetable providing for implementation of the Indian-related programs within 150 to 240 days following receipt by the Department of an Indian Tribal Organization's application.5 The timetable varied depending upon (1) the period of time within which the Department could accept or reject a Tribal Organization's application to administer a program, and (2) the amount of time that the Tribal Organization (or the state, if the Tribal Organization was found to be unqualified) had, following approval of the application, to commence operating a program that complied with federal standards. See n.5 supra; (Department's Br. at 6-7). In short, assuming receipt of a Tribal Organization's application by the Department on June 19, 1979 the programs were to be implemented within approximately twenty-six to twenty-nine months following passage of the Act, a time period much in excess of the schedule contemplated by Congress. See n.3 supra.

This action was filed in the United States District Court for the District of Columbia in November 1978, prior to the issuance of the proposed regulations, by a group of individual Indians, Indian tribes, and two Indian organizations (Antone). Antone v. Bergland, No. 78-2173 (D.D.C. Nov. 14, 1979). Antone alleged that the time spent in issuing the regulations constituted unreasonable delay in violation of section 1303(a) of the Act and 5 U.S.C. § 706(1) of the APA, as well as an abuse of discretion by the Department. (Complaint at 21-23) Both a declaratory judgment and an injunction against further delay by the Department were requested of the court. Id. at 24. Despite issuance of the proposed regulations approximately one month after the commencement of this suit, Antone continued to press the action, now alleging that the timetable contained in the proposed regulations and the pre-issuance time period together amounted to unreasonable delay in implementing the relevant reforms. Antone v. Bergland, supra at 2. Antone requested injunctive relief from the court in the form of a more expeditious timetable. Id. at 5. The Department contended that the regulations had been issued as expeditiously as possible given the comprehensive task of implementing the 1977 Act and that in any event the timetable contained in the final regulations was reasonable and fully supported by the rulemaking record. Id.

The District Court granted summary judgment in favor of Antone. Id. at 12. The court held that

the implementation schedule portion of the regulations, 7 C.F.R. § 283.5(m), 44 Fed.Reg. 35932-33, when considered together with the delay in promulgating the regulations, violates the statutory mandate for expeditious implementation provided in Section 1303(a) of Pub.L. 95-113, and must thus be set aside. In its place, the Court will impose a new implementation schedule consistent with the requirements of Section 1303(a).

Id. at 9. The court issued an amended timetable requiring the Department to implement all Indian-related programs within a maximum of 150 days from the receipt of a Tribal Organization's application. (J.A. at 76-79) The decision of the District Court is now before us on appeal by the Department.

Section 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1976), states in relevant part that in a case like the one before us, the reviewing court shall

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; ....

In reviewing regulations for which a rulemaking record exists, this court must, pursuant to 5 U.S.C. § 706(2)(C) and (E) above, inquire not only into the delay in issuing the timetable which may be a violation of the statutory right to expedition expressed in section 1303(a) of the Food Stamp Act (5 U.S.C. § 706(2)(C)), but also into the existence of substantial evidence in the record supporting the timetable (5 U.S.C. § 706(2)(E)).

The section 706(2)(E) inquiry concerning the timetable in this case is distinct from the section 706(2)(C) question of pre-issuance delay which may also be a violation of section 1303(a) of the Food Stamp Act. Two separate instances of delay are alleged in this suit (1) the pre-issuance delay of twenty-one months between enactment of the statute (Oct. 1, 1977) and the issuance of final implementation regulations (June 19, 1979); and (2) the alleged delay caused by the 150-day to 240-day implementation time period contained within the timetable of the final regulations. They must be treated separately because only the latter is subject to the substantial evidence test of the APA. Even if we agreed with Antone that the timetable was not issued with appropriate expedition, that delay alone would not warrant an order setting aside the timetable.

It is undisputed that the final regulations were issued approximately twenty-one months after passage of the Act. Whether this pre-issuance delay violates section 1303(a) of the Act is a question which we need not decide, for as noted below, we find the timetable contained within the final regulations to be supported by substantial evidence. A delay in issuing the timetable would provide no basis for setting aside the timetable itself. In Rios v. Butz, 427 F.Supp. 534 (N.D.Cal.1976) a delay of approximately ten months in implementing food stamp program reforms was found to be unreasonable. Id. at 536-37. The District Court declined, however, to disturb the timetable issued in the unreasonably delayed regulations. Viewing the evidentiary basis for the timetable independently of the pre-issuance delay, the court could find "no evidence that the (implementation schedule of the timetable) was unreasonably long for the package of regulations involved here." Id. at 536, n.10.6

Whether the timetable is valid depends upon the presence of substantial evidence in the rulemaking record to support the timetable schedule. 5 U.S.C. § 706(2)(E). Rios v. Butz, supra. The District Court however held that the cumulative impact of the two perceived delays was relevant; and at the same time the court ignored the evidentiary support for the timetable. Antone v. Bergland, supra at 9. On both counts the court erred.

No one disputes that there was full support in the rulemaking record for the timetable issued in the final regulations. Not one comment was received from the Indians or others suggesting an implementation time limit of less than the maximum which was established. Indeed, numerous parties requested longer time limits. (Department's Br. at 21-22) The timetable clearly has a rational basis in, and is fully supported by, the rulemaking record. Unless these regulations can be shown to be arbitrary, irrational, unconstitutional, or contrary to statute, which they are not, we must defer to the agency determination of the proper implementation schedule. 5 U.S.C. § 706(2). Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

The District Court's reliance on Calvert Cliffs Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971) and Rios v. Butz, supra, to support its setting aside of the timetable was inappropriate. In the Calvert Cliffs case this court held that the implementation by the Atomic Energy Commission, fourteen months after enactment of the National Environmental Policy Act of 1969, of certain nuclear power plant licensing procedures was illegal because of substantive defects in the regulations themselves as evidenced by the rulemaking record. Id. at 1121-22. The court set aside one of the timetables contained in the regulations and remanded to the agency for further action, but did not modify the timetable. Id. at 1128-29. In Rios v. Butz, the court, as noted above declined to disturb the timetable despite the pre-issuance delay because the schedule was fully supported by the rulemaking record. The pre-issuance delay in issuing a timetable cannot alone provide a basis for setting aside the timetable when it is supported by substantial evidence in the record.

The District Court's citation of NRDC v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975) to support its action is similarly inapposite. In the NRDC case we affirmed a district court's issuance of a timetable for agency action when no regulations at all had been issued and when there was an express statutory requirement not simply a direction for due expedition that regulations be issued within one year of the enactment of the Federal Water Pollution Control Act. Id. at 704-05. In this case, on the other hand, the regulations have been issued in final form and there is no basis in the rulemaking record for a holding that the timetable within the regulations is unsupported by substantial evidence.

Finally, the District Court was not acting within the scope of its equitable discretion by seeking, through the substitution of a new timetable, to compel what it perceived as unreasonably delayed agency action. Antone v. Bergland, supra at 9-10, citing NRDC v. Train, supra. An equity court's powers are greatest where, as here, the public interest is involved, but these powers are necessarily limited by a clear and valid legislative command counseling against the contemplated judicial action. Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946). The remedy adopted by the District Court, i. e., the modification of the timetable, contravened the clear and valid legislative command of the APA that regulations are not to be disturbed unless they are so irrational or unsupported by substantial evidence as to violate 5 U.S.C. § 706(2).

Because the timetable contained in 7 C.F.R. § 283.5(m), 44 Fed.Reg. 35932-35933 (June 19, 1977) was supported by substantial evidence in the rulemaking record, we reverse the District Court's setting aside of portions of the timetable and the substitution of new schedules therefor. The Department's regulations are valid.

Judgment in accordance with this opinion.