DAUGHERTY, Chief Judge.
In this action Plaintiff seeks judicial review of Defendants' decision denying Plaintiff relocation payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 through § 4655 inclusive (hereinafter called the "Policies Act"). Plaintiff filed a Petition For Review with this Court, alleging that the Defendants' decision was not in accordance with the law. Plaintiff alleges that Defendants did not comply with 42 U.S.C. § 4630 in making the decision. 42 U.S.C. § 4630 provides that:
In the Petition For Review, Plaintiff alleges that he has exhausted all administrative remedies. Defendants filed herein, pursuant to Rule 56(b), Federal Rules of Civil Procedure, a Motion For Summary Judgment and, pursuant to Rule 12(b), Federal Rules of Civil Procedure, a Motion To Dismiss. In support of the Motion To Dismiss Defendants contend that this Court lacks jurisdiction over the subject matter of this action and that the complaint fails to state a claim upon which relief can be granted. Upon due consideration, the Court finds and concludes that, for the following reasons, Defendants' Motion For Summary Judgment and Motion To Dismiss should be overruled.
MOTION FOR SUMMARY JUDGMENT
Defendants' Motion For Summary Judgment filed herein should be denied as an inappropriate procedural means to judicially review the decision of the Secretary of the United States Department of Housing and Urban Development denying Plaintiff's claim for relocation payments under 42 U.S.C. § 4622(c). Nickol v. United States, 501 F.2d 1389 (Tenth Cir. 1974); Heber Valley Milk Company v. Butz, 503 F.2d 96 (Tenth Cir. 1974).
MOTION TO DISMISS
Defendants contend that the Court should dismiss the action on the grounds that the Court lacks jurisdiction over the subject matter. Defendants contend that the determination made by the Defendants was committed to agency discretion by law and therefore not reviewable by this Court, 5 U.S.C. § 701(a)(2). The Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, provides for judicial review of certain agency action. 5 U.S.C. § 702 provides that:
The denial of a relocation payment claim under 42 U.S.C. § 4622 is administrative agency action which an aggrieved party has a right to have judicially reviewed under 5 U.S.C. § 702. Federal agency action under Title II of the Policies Act of 1970, 42 U.S.C. §§ 4621-4638, is subject to review under the Administrative Procedures Act. Lewis v. Brinegar, 372 F.Supp. 424 (W.D. Mo.1974). There have been a number of recent cases which have held that the sections of the Policies Act, with the exception of 42 U.S.C. § 4651, are judicially enforceable and that agency action under those sections is subject to judicial review. See Tullock v. State Highway Commission of Missouri, 507 F.2d 712 (Eighth Cir. 1974); Jones v. District of Columbia, Redevelopment Land Agency, 162 U.S.App.D.C. 366, 499 F.2d 502 (1974); Beaird-Poulan, Inc. v. Department of Highways, State of Louisiana, 497 F.2d 54 (Fifth Cir. 1974), cert. den. 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670; Lathan v. Volpe, 455 F.2d 1111 (Ninth Cir. 1971); Whitman v. State Highway Commission of Missouri, 400 F.Supp. 1050 (W.D.Mo. 1975); La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971) affirmed 488 F.2d 559 (Ninth Cir. 1973) cert. den. 409 U.S. 890, 93 S.Ct. 105, 34 L.Ed.2d 147. The instant case is concerned not with 42 U.S.C. § 4651 but with 42 U.S.C. § 4622 and is therefore within those sections subject to judicial review.
Defendants' Brief in Support of Motion to Dismiss cites Will-Tex Plastics Mfg., Inc. v. Department of Housing and Urban Development, 346 F.Supp. 654 (E.D.Pa.1972) affirmed 478 F.2d 1399 (Third Cir.), as authority for Defendants' contention that the Defendants' determination of Plaintiff's claim for relocation payments under 42 U.S.C. § 4622 was committed to agency discretion by law. In the Will-Tex case the Plaintiff sought injunctive relief to halt all redevelopment programs in the City of Philadelphia and all federal assistance for such projects until and unless Plaintiff, a tenant in a property acquired by the Redevelopment Authority of the City of Philadelphia, was offered just compensation for machinery and equipment that the Plaintiff had placed on the premises and was provided with a written statement of and summary of the basis for the amount offered. Plaintiff alleged in Will-Tex that the Defendant had failed to comply with 42 U.S.C. § 4651(3) and (6) and 42 U.S.C. § 4652. The Court's discussion of the legislative history of the Policies Act was concerned with the applicability of 42 U.S.C. § 4602(a) to that case. 42 U.S.C. § 4602(a) provides:
In Will-Tex the Court specifically noted that Plaintiff's allegations were under Title III of the Policies Act, 42 U.S.C. §§ 4651-4655 and not under Title II. The decision in the Will-Tex case dismissing Plaintiff's
In light of the above discussion the Court concludes that this Court has, pursuant to the Administrative Procedure Act, jurisdiction over the subject matter of this action.
Defendants also contend that this action should be dismissed on the grounds that the complaint fails to state a claim upon which relief can be granted. In considering a Motion To Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, the allegations in the Complaint must be taken as true. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Dewell v. Lawson, 489 F.2d 877 (Tenth Cir. 1974). The Complaint is construed favorably to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). And a Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cruz v. Beto, supra; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hudson v. Harris, 478 F.2d 244 (Tenth Cir. 1973). In applying the above standard to the instant case, the Court concludes that Plaintiff has stated a claim upon which relief may be granted.
In view of the foregoing each of Defendants' Motions should be overruled. Defendant will answer within fifteen (15) days.
It is so ordered this 14th day of September, 1976.
ON THE MERITS
This is an action seeking judicial review of Defendants' decision denying relocation payments to Plaintiff under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 through 4655 inclusive (Policies Act). Plaintiff has filed a Petition For Review and a Brief in support thereof wherein it is alleged that Plaintiff has exhausted all of his administrative remedies and that Defendants' denial of relocation payments to Plaintiff was not in accordance with law. Defendants Secretary of HUD (Secretary) and Robert H. Breeden (Breeden) have filed an Answer and Response to Plaintiff's Petition For Review and Plaintiff has replied to said Response. Defendant James B. White (White) has filed an Answer and Brief in support thereof.
From the record submitted for review and stipulated to by the parties herein, it appears that Plaintiff is an attorney whose offices were in the Mercantile Building in Oklahoma City until November 1, 1974, at which time Plaintiff moved his offices to 301 N. Harvey in Oklahoma City because the Oklahoma City Urban Renewal Authority (OCURA) had acquired the Mercantile Building in connection with an urban renewal project. Plaintiff was first notified of OCURA's intention to take the property by a notice dated July 24, 1974. Plaintiff subsequently submitted a claim for relocation payment in lieu of moving and related expenses dated July 18, 1975, and a supplemental letter dated July 30, 1975. OCURA originally denied Plaintiff's request for said payment in a letter dated August 29, 1975, and on review in a letter signed by Defendant White and dated September 29, 1975, on the grounds that OCURA was unable to
Plaintiff then brought the instant action for review of the decision denying his claim for relocation benefits and this Court determined in an Order entered herein on September 14, 1976, that the Court has subject matter jurisdiction of this action under the provisions of the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706.
A brief discussion of the Policies Act and the regulations promulgated to implement said Act is necessary at this point.
42 U.S.C. § 4621 provides:
To carry out the stated purpose of § 4621, 42 U.S.C. § 4622(a)(1) provides for the payment of actual moving expenses to persons whose businesses are displaced by a program or project undertaken by a Federal agency in any state. A person eligible for moving expenses under § 4622(a)(1) may elect to receive a fixed payment in lieu thereof in an amount equal to the average annual net earnings of his business not to exceed $10,000 pursuant to 42 U.S.C. § 4622(c). Before a payment can be made under § 4622(c), the head of the Federal agency must be satisfied that the business claimant's business cannot be relocated without a substantial loss of its existing patronage and is not part of a commercial enterprise having at least one other establishment not being acquired by the United States, which is engaged in the same or similar business. The provisions of the Policies Act allowing moving expenses or payments in lieu thereof are made applicable to federally assisted state projects by 42 U.S.C. § 4630. 42 U.S.C. § 4633(c) authorizes agency heads to prescribe regulations necessary or appropriate to carry out the Policies Act.
Pursuant to the authority granted by 42 U.S.C. § 4633(c), the Secretary promulgated 24 C.F.R. § 42.85 which established eligibility requirements for § 4622 relocation benefits for businesses. 24 C.F.R. § 42.85(b)
24 C.F.R. § 42.170 places the initial responsibility for determining the eligibility and the amount of payment for any claim for relocation benefits upon the "State agency."
24 C.F.R. § 42.290 provides that the procedures for review by the State agency and HUD do not preclude a claimant from seeking judicial review or receiving a fair and impartial consideration of his claim on its merits upon exhaustion of the foregoing review procedures.
The review standard that the Court must follow in this case is that the HUD decision appealed from must be affirmed unless found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
In view of the foregoing rules of law and upon examination of the record herein, the Court finds and concludes that Defendants' decision denying Plaintiff's claim for relocation benefits is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The ultimate administrative decision in this case is based on a finding that Plaintiff's law offices were relocated three blocks from his former offices without a substantial loss of existing patronage; that Plaintiff was located quite near potential sources of business and was in fact closer to County and Federal Courthouses. Although it appears from the evidence before the Court that Plaintiff's income from his law practice did in fact decrease after he moved into his present offices, there is absolutely nothing in the record herein establishing that this decrease was caused by a substantial loss of Plaintiff's patronage existing prior to moving or by Plaintiff's relocation, save Plaintiff's assertions to this effect. Therefore, as the facts in this case support the decisions of OCURA and HUD denying relocation benefits to Plaintiff, the decision appealed from should be affirmed. Accordingly, a Judgment should be entered to this effect.