NOTES

7
GALE COKER, et al v. OTIS R. BOWEN, et al
No. 86-2448 September 2, 1986

304

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GALE CORER and CARLA ESTES, on behalf of themselves and their minor dependent children, Jonquil Hotel 1600 W. Jonquil Terrace Chicago, Illinois 60626,
TONY PORTER, on behalf of herself and her minor dependent children, Congress Hotel, 206 W. Franklin Street, Baltimore, Maryland 21201,
NATIONAL UNION OF THE HOMELESS, 2021 20th Street and Spring Garden, Philadelphia, Pennsylvania 19130,
and
NATIONAL COALITION FOR THE HOMELESS, 1620 I Street, N.W., Washington, D.C. 20006,
Plaintiffs,
3F
OTIS R. BOWEN, M.D., Secretary, United States Department of Health and Human Services, 200 Independence Avenue, S.W., Washington, D.C. 20201,
and
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, 200 Independence Avenue, S.W., Washington, D.C. 20201,
Defendants.

Civil Action No.

S6-24S
SEP 21986

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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305

Plaintiffs Gale Coker and Carla Estes, on behalf of themselves and their minor dependent children (collectively the "Coker-Estes family"), Tony Porter, on behalf of herself and her minor dependent children (collectively the "Porter Family") , the National Union of the Homeless, and the National Coalition for the Homeless, by their attorneys, bring this action against defendants Otis R. Bowen, M.D., in his capacity as Secretary, United States Department of Health and Human Services, and the United States Department of Health and Human Services (collectively "HHS" or "defendants") , for declaratory and injunctive relief. In support of their claims, plaintiffs allege as follows:
NATURE OF THE CASE 1. This is an action to compel defendants to discharge their statutory and regulatory duty to ensure that States participating in a federal program and receiving federal funds provide emergency shelter assistance to homeless families. 2. Homelessness among families in America today has reached crisis proportions. Each month thousands of families nationwide become homeless as a result of eviction, natural disaster, financial destitution and other emergencies beyond their control. Homeless families -frequently mothers with young children -- are the fastest-growing category of homeless people and are now

estimated to constitute as much as forty (40) percent of the two to three million homeless persons nationwide. In several States, such as Illinois and Massachusetts, homeless families are estimated to comprise a majority of the homeless population.
3. The Emergency Assistance to Families ("EAF") program, administered by HHS, creates a federal right to temporary shelter in States that have committed to furnish, pay for or secure family shelter in emergency situations. Pursuant to Title IV-A of the Social Security Act, 42 U.S.C. S 601 et seq. (the "Act"), and implementing regulations promulgated thereunder (the "regulations"), HHS is required to ensure that such States actually provide emergency shelter assistance to eligible needy families with children. HHS is obligated by the Act and the regulations to monitor, review, oversee and enforce the provision of emergency assistance by States participating in the EAF program.
4. HHS has failed to discharge this obligation. Defendants have taken neither the specific actions required by the regulations nor any action adequate to ensure that participating States actually provide emergency assistance to needy families with children, and have enforced the Act in an arbitrary and capricious manner. As a result, participating States frequently refuse, fail and otherwise do not substantially provide the emergency assistance, including emergency shelter, that they have committed and are required to provide to families eligible under the EAF program.

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5. Because of defendants' failure to discharge their obligations, homeless families across the country,
although in desperate need, are not receiving the emergency
shelter assistance to which they are entitled under federal law. For example:
(a) In Delaware, more than fifty (50) percent of the homeless families that seek emergency shelter assistance are turned away by the Delaware Department of Health and Social Services;
(b) In Illinois, it has been estimated that there are at least 5,000 homeless families, several hundred in the City of Chicago alone. The Illinois Department of Public Aid frequently fails to provide eligible homeless families with the emergency shelter assistance to which they are entitled and has contracted with only one private agency, the Salvation Army Emergency Lodge, for the provision of emergency shelter solely within Chicago;
(c) In New York, despite a number of court rulings recognizing their right to emergency shelter, thousands of homeless families have been denied shelter and relegated -- with their children -- to sleep in squalid welfare offices;
(d) In Washington State, the Department of Social and Health Services provides emergency shelter assistance to only about one out of ten homeless families; and

(a) In Michigan, there are approximately 6,400 homeless families, yet fewer than 250 shelter beds are provided by the Department of Social Services
6. Defendants' refusal to enforce the Act and to carry out the specific monitoring procedures required by the regulations has removed all effective federal oversight of the provision of emergency shelter assistance under the EAF program. Plaintiffs seek a declaration that HHS is obligated by the Act and its own regulations to ensure that participating States adhere to their commitments to provide emergency shelter assistance to all eligible families, and an order compelling defendants to discharge this obligation.
JURISDICTION AND VENUE
7. This Court has jurisdiction over this action under 28 U.S.C. SS 1331 and 1361. venue in this district is proper under 28 U.S.C. S 1391(e). Declaratory relief is authorized by the Declaratory Judgment Act, 28 U.S.C. S 2201, and Rule 57, Fed. R. Civ. P.
PARTIES
8. Gale Coker is a 34 year old white male. Carla Estes is a 24 year old white female. Their children are Donnie, age 2, and Shanadora, age 1, and Ms. Estes is pregnant with another child due to be born in January 1987. The Coker-Estes family is indigent and was eligible in August 1986 for emergency shelter assistance under the State

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of Illinois emergency assistance plan. Despite repeated requests, the State of Illinois, through its social service agencies, has refused to secure emergency shelter for the Coker-Estes family or to refer the Coker-Estes family to any private or public agency that provides emergency shelter to
homeless families. As a needy family with children, the
Coker-Estes family is among the intended beneficiaries of the monitoring, oversight and enforcement obligations established by the Act and the regulations.
9. Tony Porter is a 30 year old woman with a 12 year old son, Arnold, and a six -month old son, Shawn. The Porter family was eligible in August 1986 for emergency shelter assistance under the State of Maryland emergency assistance plan. Despite repeated requests, the State of Maryland, through its social service agencies, has refused to secure emergency shelter for the Porter family or to refer the Porter family to any private or public agency that provides emergency shelter to homeless families. As a need family with children, the Porter family is among the intended beneficiaries of the monitoring, oversight and enforcement obligations established by the Act and the regulations.
10. The National Union of the Homeless (the "National Union") is a national organization headquartered
in Philadelphia, Pennsylvania, composed of currently and
formerly homeless persons, including homeless and formerly homeless families. The National Union has approximately

6,000 members and is affiliated with numerous local unions around the country.
11. The National Coalition for the Homeless (the "National Coalition") is a not-for-profit corporation organized and existing under the laws of the State of New York. The National Coalition's fundamental purpose is to alleviate the misery and vindicate the rights of the homeless, including their right to effective enforcement of statutory and regulatory compliance mechanisms established for their aid and protection. The National Coalition, its board members, and its affiliated organizations provide aid and services to, and advocacy for, homeless persons
(including homeless families) throughout the United States,
12. Otis R. Bowen, M.D. ("Bowen" or the "Secretary"), named in his official capacity, is Secretary of the United States Department of Health and Human Services. Bowen has statutory responsibility for the administration of the Act and the EAF program.
13. The United States Department of Health and Human Services is an agency of the executive branch of the government of the United States.
FACTS A. The Emergency Assistance to Families Program
14. The EAF program is a federally created and funded entitlements program designed to provide prompt,

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temporary assistance to needy families with children. Pursuant to the Act, the purpose of EAF is to avoid destitution of needy children and to provide living arrangements for needy children and their families. 42 U.S.C. S 606(e)(1).
15. States participate in the EAF program by committing, in plans submitted to the Secretary for approval, to provide emergency assistance to needy families with children. The State plan is a comprehensive description of the nature and scope of the State's program which must give assurances that the program will be administered in conformity with the requirements of the Act and the regulations. 45 C.F.R. S 201.02. Following approval of their plans by the Secretary, States receive reimbursement under the Act (known as federal "matching funds") for up to fifty (50) percent of their quarterly emergency assistance expenditures. 42 U.S.C. S 603(a)(5).
16. The Act requires States participating in the EAF program to provide emergency assistance to eligible families in accordance with the commitments of their plans. As a condition of approval of their plans by the Secretary. States are required to define the circumstances under which emergency assistance will be provided, to specify the types of emergency assistance and services that will be provided and, in particular, to specify whether emergency assistance includes "securing family shelter." 45 C.F.R. S 233.120(a)(4). States that commit to furnish emergency

shelter, to provide emergency assistance payments for shelter, or to secure family shelter must do so.
17. As a condition of approval of their plans by the Secretary, States are required to specify that "emergency assistance will be given forthwith." 45 C.F.R. S 233.120(a)(5).
18. Twenty five (25) States, the District of Columbia, and Puerto Rico participate in the EAT program. In their approved plans, each of these States except California specifies that emergency shelter, emergency assistance payments for shelter, or emergency assistance services for securing family shelter (or each of the foregoing) will be provided to eligible families in emergency situations.
B. The Federal Government's Responsibility 19. HHS administers the EAF program and autho-
rizes the payment of federal matching funds for States' EAF expenditures. HHS is obligated under the Act to ensure that States receiving federal matching funds for expenditures for emergency assistance under approved plans adhere to the commitments of their plans.
20. HHS is obligated by the regulations, promulgated in implementation of the Act, to take specific actions to ensure that States participating in the EAF program adhere to the commitments of their approved plans:

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LA

(a) HHS is required to review case records and State agency operations to ensure adherence to federal regulatory requirements, including the requirement that emergency assistance be provided forthwith. 45 C.F.R. SS 201.10(c), 233.120 (a)(5);
(b) HHS is required to review the administration of State and local public assistance to determine whether State agencies are adhering to the substantive legal and administrative provisions of their approved plans. 45
C.F.R. S 201.10(a);
(c) HHS is required to audit the operations of State Agencies to determine whether those agencies are being operated in a manner that provides a reasonable degree of assurance that federal matching funds are being expended properly and as provided for under the State plans. 45
C.F.R. S 201.12(a);
(d) HHS is required to conduct a continuing observation of States' quality control systems to identify case errors, including underpayment of assistance to eligible families, and to direct necessary corrective action. 45 C.F.R. SS 201.10(b), 205.40; and
(e) HHS is required, where the actions described at subparagraphs (a) through (d) above reveal a serious problem with respect to a State's adherence to the provisions of its plan, to direct the State agency to correct its practice. 45 C.F.R. S 201.13(b).

21. HHS is empowered under the Act to require States to provide whatever information and make any reports that the Secretary determines are necessary to evaluate compliance with the Act and adherence to the commitments of approved plans. 42 U.S.C. S 602(a)(6).
22. HHS is empowered under the regulations and the Act to take all action necessary to ensure that States comply with federal regulatory requirements and the commitments of approved plans. The regulations require HHS to discuss questions of noncompliance with State agency officials and permit negotiations between HHS and States in lieu of administrative hearings on the conformity of State plan administration to the requirements of the Act. 45 C.F.R. 55 201.6(c), 213.1(b). The Secretary is authorized to conduct hearings to determine whether States are in conformity with the requirements of the Act. 42 U.S.C. S 604(a).
C. The Federal Government's Failure to Ensure Compliance 23. HHS has not taken, and is not taking, the
specific actions required by the regulations to assess State compliance with the commitments of approved plans, and has failed to take any action adequate and necessary to ensure that States actually provide emergency shelter assistance to eligible homeless families.
24. MRS has failed, and is failing, to comply with the regulations described at paragraph 20 above:

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(a) HHS has failed to review the operations and case records of any State agency to ensure that emergency assistance is provided forthwith;
(b) HHS has failed to review the public assistance administration of any State to determine whether States are adhering to all of the substantive legal and administrative provisions of their approved plans and to determine, in particular, whether States are providing emergency shelter assistance to eligible families in accordance with the commitments of their plans;
(c) HHS has failed to audit the operations of any State agency to determine whether funds are being expended for the purposes for which appropriated and provided for under their approved plans and to determine, in particular, whether States are providing emergency shelter assistance to eligible families in accordance with the commitments of their plans;
(d) HAS has permitted States to exempt EAF from quality control systems and has failed to identify EAF underpayment errors and to direct necessary corrective action; and
(e) HHS has failed to direct any State agency to correct serious problems with respect to compliance with the emergency shelter assistance provisions of its approved plan.

25. HHS has failed, after written inquiry by the National Coalition, to bring its procedures into compliance with the regulations described at paragraph 20 above.
26. Nothing in the Single Audit Act of 1984, 31 U.S.C. S 7501 et sec. (the "Audit Act"), relieves HHS of the obligation to carry out the specific monitoring and oversight actions required by the regulations. Although the Audit Act provides that audits conducted by States in accordance with the Audit Act shall be relied upon by federal agencies to the extent such audits provide an agency with the information required to discharge its responsibilities under federal law and regulations, no audits have as yet been conducted under the Audit Act. The Audit Act expressly provides that federal agencies "shall conduct" any audits necessary to carry out their statutory and regulatory obligations.
27. HHS has failed, and is failing, to exercise its power under the Act, described at paragraph 21 above, to require States to provide information and make reports sufficient to evaluate State compliance with the regulations and the commitments of approved plans:
(a) HHS has never required any State participating in the EAF program to report on its compliance, or lack of compliance, with the commitments of its plan specifying that emergency shelter assistance will be provided to eligible families;

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(b) HHS has never required any State participating in the EAF program to provide information or

reports on the total funds expended (or percentage of total

EAF funds expended) by that State for emergency shelter

assistance, the number of emergency shelter beds made

available by that State for use by eligible families, the

number of occasions and the circumstances in which that

State has failed or has been unable to provide or secure

`

emergency shelter for eligible families, or the number of

occasions and the circumstances in which that State has

failed or has been unable to provide or secure emergency

shelter forthwith;

(c) HHS has never conducted or caused to be

conducted any type of evaluation, review, audit or

continuing observation to determine whether any State

participating in the EAF program has improperly denied,

failed forthwith to provide, or underpaid assistance for

emergency shelter to eligible families; and

(d) The Secretary has never initiated or caused

to be initiated any judicial or administrative proceeding to

determine whether any State participating in the EAF program

has improperly denied, failed forthwith to provide, or

underpaid assistance for emergency shelter to eligible

families.

28. HHS has failed, and is failing, to take any

of the actions, described at paragraph 22 above, to

encourage, induce or require States receiving federal

matching funds to provide emergency shelter assistance in accordance with the regulations and the commitments of their approved plans. The Secretary has never negotiated with any State agency official, conducted hearings concerning any State's compliance with the Act, or otherwise taken action against any State participating in the EAF program for reason of the State's failure to comply with the commitments of its plan specifying that emergency shelter assistance will be provided to eligible families.
29. As a result of defendants' failure to act, described at paragraphs 23 through 28 above, HHS does not and cannot determine whether, or ensure that, States adhere to the regulations and the commitments of their approved plans in the provision of emergency assistance.
30. HHS has conducted some financial and administrative reviews of aspects of State EAF programs. These reviews are not designed to, nor do they in fact, determine whether States provide emergency assistance to eligible families in accordance with the commitments of their plans. Without authority under the Act, HHS has conducted and used these reviews solely to restrict the disbursement of EAF funds and to disallow quarterly claims submitted by the States for the payment of federal matching funds for emergency assistance expenditures. HHS has disallowed claims for the payment of federal matching funds where it has determined that States have provided emergency assistance (including emergency shelter assistance) to

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families not eligible under their plans, have made emergency assistance payments in excess of those authorized in their plans or in situations HAS has determined are not emergencies, or lack documentation to support claimed expenditures for emergency assistance. Nonetheless, ENS has taken no action to identify and correct the underpayment, improper denial, or failure of States to provide emergency assistance to eligible families.
D. Injury to Plaintiffs 31. The Coker-Estes family has arbitrarily and
unlawfully been denied emergency shelter assistance by Illinois. If not for defendants' failure to ensure State compliance with the EAF commitments of approved plans, the Coker-Estes family would have received the emergency
assistance to which they are entitled.
32. Illinois has committed in its approved plan to provide emergency assistance in the form of shelter for eligible homeless families. The plan provides that the Illinois Department of Public Aid will provide emergency assistance services for "securing shelter." The plan also provides that vendor assistance payments for emergency shelter will be made if an eligible family "is homeless or is threatened with homelessness" as a result of an eviction or court order to vacate the home; fire, flood or other natural disasters or because of physical abuse by the spouse. The Illinois plan further provides that emergency

shelter will be furnished if a "(f)amily is unable to pay for housing."
33. Defendants have failed to take any action adequate to ensure adherence to these commitments and the requirements of the regulations. while HHS conducted an "administrative review" of the Illinois EAF program in 1984, that review did not include any examination of instances in which emergency assistance was denied or whether assistance was underpaid. The review did not examine whether Illinois actually provided emergency assistance services to "secure shelter."
34. The 1984 review revealed that Illinois furnishes emergency shelter only to families receiving Aid to Families with Dependent Children ("AFDC") assistance from the Illinois Department of Public Aid. Although this restriction violates the "equitable treatment" requirement of 45 C.F.R. S 233.10(a)(1), the interpretation of that requirement by HHS in its Action Transmittal No. SSA-AT-82-28 (November 5, 1982), and the Supreme Court's decision in Blum V. Bacon, 457 U.S. 132 (1982), HHS failed to direct Illinois to bring its EAF program into compliance.
35. The Coker-Estes family was denied emergency shelter assistance by the Illinois Department of Public Aid ("Public Aid") and the City of Chicago Department of Human Services ("DHS") in August of 1986.
36. The Coker-Estes family was unable to pay for housing and was eligible to receive emergency assistance

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under the Illinois plan at all times that assistance was denied. The Coker–Estes family has been directly injured by defendants' unlawful actions in that, among other things,
they have not received the emergency assistance to which
they are entitled pursuant to the Act and have been denied
the benefit of compliance mechanisms established for their
aid and protection. 37. The Porter family has arbitrarily and unlaw-
fully been denied emergency shelter assistance by Maryland. If not for defendants' failure to ensure State compliance with the EAF commitments of approved plans, the Porter family would have received the emergency assistance to which they are entitled.
38. Maryland has committed in its approved plan to provide emergency assistance in the form of shelter for eligible homeless families. The plan provides that the Maryland Department of Human Resources, through local social service agencies, will provide emergency assistance services, specifically, "information, referral, counseling, securing shelter, child care, etc.," for "problems attributable to the emergency crisis situation." The plan expressly covers a variety of emergencies, including "eviction or foreclosure," which are defined in the plan to include a "[p)hysical put out" as well as a court-ordered eviction. The plan further provides that emergency assistance payments, up to a maximum of $350, will be made

for the "provision of temporary shelter" in cases of eviction or foreclosure.
39. Defendants have failed to take any action adequate to ensure adherence to these commitments and the requirements of the regulations. While HHS conducted a "financial review" of Maryland's EAF program in 1985, that
review did not include any examiation of instances in which
emergency assistance, including emergency assistance services for "referral," "securing shelter," and "child care," was denied or refused. The review analyzed the "accounting records" of the Frederick County Department of Social Services "to determine the accuracy of (EAF) payments reported by local agencies" and "to determine eligibility, allowability and accuracy of the authorization." The review resulted in a disallowance of $201 of claimed federal matching funds.
40. The Porter family has been denied emergency shelter assistance by the Baltimore City Department of Social Services ("DSS") and the Maryland Department of Human Resources in September 1985 and July and August of 1986.
41. The Porter family was eligible to receive emergency assistance, including emergency assistance services, under the Maryland plan -- by virtue of having been physically "put out" in September 1985 and July and August 1986 -- at all times that assistance was denied. The Porter family has been directly injured by defendants' unlawful actions in that, among other things, they have not

323 322

received the emergency assistance to which they are entitled pursuant to the Act and have been denied the benefit of compliance mechanisms established for their aid and protection.
42. The National Union has been directly injured by defendants' unlawful actions in that, among other things, its members have not received the emergency assistance to which they are entitled and have been denied the benefit of compliance mechanisms established for their aid and protection.
43. The National Coalition has been directly injured by defendants' unlawful actions in that, among other things, its fundamental purpose has been undermined and it has been forced to devote significant resources, including additional funds and effort, to identify and counteract defendants' actions and to provide additional aid and services to, and advocacy for, homeless families with needy children.
44. Plaintiffs have no adequate remedy at law.
CLAIMS FOR RELIEF COUNT I
(Failure to Comply with Regulations) 45. Plaintiffs incorporate the allegations of paragraphs 1 through 44 as if specifically set forth here. 46. The failure of defendants to comply with the regulations described at paragraph 20 above is arbitrary,

capricious, and not in accordance with law, in violation of

the Act and the Administrative Procedure Act, 5 U.S.C. S

706(2).

COUNT II

(Abdication of Enforcement Responsibility)

47. Plaintiffs incorporate the allegations of paragraphs 1 through 44 as if specifically set forth here.

48. Defendants have unlawfully withheld, unreasonably delayed and wholly abdicated taking any action

adequate and necessary to ensure that States receiving

federal matching funds provide emergency shelter assistance

to eligible families in accordance with the regulations and

the com.iitments of their approved plans, in violation of the

Act and the Administrative Procedure Act, 5 U.S.C. S 706(1).

COUNT III (Arbitrary and Capricious Enforcement;
Exceedin g Statutory Authority) 49. Plaintiffs incorporate the allegations of paragraphs 1 through 44 as if specifically set forth here. 50. Defendants have acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, 5 U.S.C. S 706(2), and in excess of their statutory authority, by enforcing the Act solely to restrict the payment of federal matching funds for unauthorized or undocumented emergency assistance expenditures while taking no action to

324 325

identify or correct the improper denial or underpayment of emergency assistance.
PRAYER FOR RELIEF WHEREFORE, the plaintiffs pray: 1. That this Court enter a judgment declaring that defendants are obligated: (a) to review case records and State agency operations to ensure adherence to federal regulatory requirements, including the requirement that emergency assistance be provided forthwith, in accordance with 45 C.F.R. SS 201.10(c), 233.120(a)(5); (b) to review the administration of State and local public assistance to determine whether State agencies are adhering to the substantive legal and administrative provisions of their approved plans, in accordance with 45 C.F.R. S 201.10(a); (c) to audit the operations of State agencies to determine whether those agencies are being operated in a manner that provides a reasonable degree to assurance that federal matching funds are being expended properly and as provided for under the State plans, in accordance with 45 C.F.R. S 201.12(a); (d) to conduct a continuing observation of States' quality control systems to identify case errors, including underpayment of emergency assistance to eligible

families, and to direct necessary corrective action, in accordance with 45 C.F.R. SS 201.10(b), 205.40;
(e) where the actions described at subparagraphs (a) through (d) above reveal a serious problem with respect to a State's adherence to the provisions of its plan, to direct the State agency to correct its practice, in accordance with 45 C.F.R. S 201.13(b); and
(f) to take all other monitoring, review, oversight and enforcement actions adequate and necessary under the Act to ensure that States actually provide emergency shelter assistance to eligible families in accordance with the Act, the regulations and the commitments of their approved plans.
2. That this Court enter an order compelling
defendants to discharge such obligation; and

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3. That this Court award plaintiffs the costs of

this action and reasonable attorneys' fees, and such other

and further relief as deemed just and proper.

GALE COKER CARLA ESTES TONY PORTER NATIONAL UNION OF THE HOMELESS NATIONAL COALITION
FOR THE HOMELESS

By

nn . C4^^sk ,n (cO

One of their Attorneys

Thomas S. Martin (D.C. Bar No. 026658)
David E. Zerhusen (D.C. Bar No. 389514)
Glenn B. Manishin (D.C. Bar No. 395724)
Carl S. Nadler (D.C. Bar No. 395729)
Robert W. Kent, Jr. JENNER & BLOCK 21 Dupont Circle, N.W. Washington, D.C. 20036 (202) 223-4400

Robert M. Hayes Maria Foscarinis
(D.C. Bar No. 397792) NATIONAL COALITION
FOR THE HOMELESS 1620 I Street, N.W. Washington, D.C. 20006 (202) 659-3310

Dated: September 2, 1986.

328

 
 Case: 1:86-cv-2448 As of: 12/17/2008 01:04 PM EST 1 of 2
SuppressAnsRpt
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:86−cv−02448−JGP

COKER, et al v. BOWEN, et al Assigned to: Judge John Garrett Penn Demand: $0 Cause: 42:402 Social Security Benefits
Plaintiff GALE COKER on behalf of themselves and their minor dependent children
Plaintiff CARLA ESTES on behalf of themselves and their minor dependent children
Plaintiff TONY PORTER on behalf of herself and her minor dependent children
Plaintiff NATIONAL UNION OF THE HOMELESS
Plaintiff NATIONAL COALITION FOR THE HOMELESS

Date Filed: 09/02/1986 Date Terminated: 03/31/1989 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Glenn B. Manishin DUANE MORRIS, LLP 505 Ninth Street, NW Suite 1000 Washington , DC 20004 (202) 776−7813 Fax: (202) 478−2875 Email: gbmanishin@duanemorris.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn B. Manishin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn B. Manishin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn B. Manishin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn B. Manishin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
DR. OTIS R. BOWEN Secretary U.S. Department of Health &Human Services
Defendant
DC DEPARTMENT OF HEALTH &HUMAN SERVICES

Case: 1:86-cv-2448 As of: 12/17/2008 01:04 PM EST 2 of 2

Date Filed 09/02/1986 12/31/1986

# Docket Text 1 COMPLAINT filed summons issued (ew) (Entered: 09/04/1986) 2 ANSWER for defendant, (mls) (Entered: 09/17/1987)

 
 United States District Court, District of Columbia. Gale COKER, et al, Plaintiffs, v.
Otis R. BOWEN, M.D., et al, Defendants. Civ. A. No. 86-2448.
April 11, 1989.
Homeless families and organizations advocating rights of homeless brought actions to require Department of Health and Human Services to monitor and enforce states' compliance with emergency assistance plans, and specifically to compel states to adhere to their commitments to provide emergency shelter assistance. On Department's motion to dismiss, the District Court, John Garrett Penn, J., held that families and organizations lacked standing to bring action.
Motion granted.
*384 Glen B. Manishin, Maria Fascarines, Nat'l Coalition for Homeless, Washington, D.C., for plaintiffs. Mark E. Nagle, Asst. U.S. Atty., Washington, D.C., for defendants.
MEMORANDUM
JOHN GARRETT PENN, District Judge. Plaintiffs brought these actions to require the Department of Health and Human Services (“HHS”) to monitor and enforce the states' compliance with their emergency assistance (EA) plans. Specifically, plaintiffs seek to have HHS compel the states to fully adhere to their commitments to provide emergency shelter assistance (“ES”) (either actual shelter or cash payments). The plaintiffs include two homeless families who have been denied emergency shelter assistance, one from Maryland and one from Illinois; the National Union of Homeless (NUH), an organization comprised of homeless or formerly homeless people; and the National Coalition for the Homeless (NCH), an advocacy and service organization.
Plaintiffs state three claims against HHS for which they seek declaratory and injunctive relief under the Administrative Procedure Act (the “APA”): FN1 (1)

failure to monitor the states for compliance with their EA plans as required by regulations; (2) abdication of all enforcement actions permitted under the statute and regulations; and (3) arbitrary and capricious enforcement-ie.) enforcement when EA is improperly granted, but not when it is improperly denied. The crux of plaintiffs' claim is that HHS *385 has allowed states to systematically deny ES to eligible homeless families.
FN1. They assert no claims directly under Title IV of the Social Security Act, 42 U.S.C. § 601et seq.
This matter is now before the Court on the defendants' motion to dismiss. The defendants assert as grounds for the motion that this Court lacks jurisdiction over the subject matter of this action, and plaintiffs have failed to state a claim upon which relief can be granted.
The defendants raise three issues as to the justiciability of this case and the reviewability of plaintiffs' claims: (1) the defendants argue that the plaintiffs do not meet the constitutional criteria for standing because their injuries have been caused by the states and are not likely to be redressed through the relief sought against HHS, (2) they assert that the case is not reviewable under the APA, 5 U.S.C. § 701(a)(2), because under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), enforcement decisions are presumed to be unreviewable as acts committed to agency discretion, (3) and finally relying on Council for the Blind v. Regan, 709 F.2d 1521 (1983), they assert that the case is unreviewable under the APA, 5 U.S.C. § 704, because plaintiffs have adequate remedies through individual hearings, or through suits directly against the states. Because this Court concludes that the plaintiffs lack standing, the Court will not address the last two issues.
I.
The EA provisions are found within those covering aid to families with children under Title IV-A of the Social Security Act (“the SSA”). See42 U.S.C. §§ 603(a)(5) and 606(e)(1). AFDC is the core of Title IV-A. EA, on the other hand, is an optional program in which approximately 28 states participate. The states must specify in their EA plans the types of

services they wish to provide, such as emergency shelter, and their plans must provide that EA will be provided forthwith. 45 C.F.R. § 233.120(a). They are reimbursed by the federal government for 50% of the funds which they spend on the program. 42 U.S.C. § 603(a)(5).
Congress intended that the EA program would not have all of the procedural trappings of the AFDC program. Quern v. Mandley, 436 U.S. 725, 744, 98 S.Ct. 2068, 2079, 56 L.Ed.2d 658 (1978). Thus, the Court in Quern concluded that state provisions for EA, unlike those for AFDC, can have more restrictive eligibility standards than those recommended in the statute. The Court held that § 606(e) imposes permissive, not mandatory, standards of eligibility on participating states, and that therefore, a state could restrict EA to AFDC recipients and those presumptively eligible for AFDC. States, however, cannot completely and automatically exclude AFDC recipients from eligibility for EA. Blum v. Bacon, 457 U.S. 132, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982).
There are no enforcement provisions in the statute or regulations which specifically refer to EA, as the statute and regulations refer to the public assistance plans in general. The Act at 42 U.S.C. § 604(a) provides for the withholding of payments to states found by HHS to be in substantial noncompliance with any provision required by § 602(a) to be included in the plan. HHS has the discretion to withhold all payments or just those for the part of the plan affected. Some of the provisions of § 602(a) apply to the plan as a whole, while others refer specifically to AFDC and therefore apply only to AFDC. Quern, 436 U.S. at 741-742, 98 S.Ct. at 2077-2078. The requirements of § 602(a) deal mainly with the administration of the plan, although they place certain substantive obligations upon the states. See Canady v. Koch, 608 F.Supp. 1460, 1471 (S.D.N.Y.1985). As discussed above, the provision of EA is not one of the substantive requirements. Plaintiffs have not identified requirements of § 602(a), the violation of which is resulting in the denial of shelter to eligible families.
The relevant monitoring and enforcement regulations are found at 45 C.F.R. § 201.6(a) (withholding) and §§ 201.10-201.13 (review and audit). These regulations appear to apply to the states' plans as a

whole, which include all family assistance programs under Titles I, IV-A, VI, X, *386 XIV, XVI, and XIX of the SSA. Section 201.6(a) authorizes withholding of payments to a state in whole or in part when the state's public assistance plan or administration of the plan fails to comply with federal requirements such as those in 42 U.S.C. § 602. The provisions in §§ 201.10-201.13 provide the basis for determining that action under § 201.6 is necessary. Section 201.10 provides that HHS will review the states' adherence to federal requirements and to the other provisions of their plans. HHS is to conduct a “continuing observation” of the states' quality control systems. § 201.10(b). Quality control systems are used to monitor case errors, which include underpayment and wrongful denials of assistance. 45 C.F.R. § 205.40. Section 201.12 provides that HHS will conduct audits to determine whether states are properly spending funds. Finally, § 201.13(b) provides that if the “reviews reveal serious problems with respect to compliance with any Federal requirement, the State agency is required to correct its practice so that there will be no recurrence of the problem in the future.”
Section 201.10 provides the strongest support for plaintiffs' argument that HHS is required to monitor the states' adherence to their EA provisions. However, the enforcement regulations clearly focus on the federal requirements. For a program such as AFDC, the eligibility standard is a federal requirement, but for EA, the states have wide latitude in determining eligibility, Quern, supra, although at a minimum they must not automatically exclude AFDC recipients. Blum, supra.
II.
[1][2][3] The constitutional requirements for standing are (1) a concrete injury which is more than a generalized grievance shared by the population at large; (2) an injury which is fairly traceable to the actions of the defendant; and (3) an injury which is substantially likely to be redressed by relief against the defendant. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The standing inquiry should not be a mask for a court's view of the merits of the case. See Allen v. Wright, 468 U.S. 737, 782, 104 S.Ct. 3315, 3341, 82 L.Ed.2d 556 (Brennan, J., dissenting). The lack of any other person who would have standing to

seek redress for a violation of the law does not mean that plaintiffs must have standing. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974).
A.
[4] There is no dispute that the alleged improper denial of ES to homeless families is an injury upon which standing can be based.FN2 Plaintiffs, however, give no support for their position that denial of “compliance mechanisms for their benefit” is a judicially cognizable injury. Recognizing it as such would render the standing doctrine meaningless. The alleged denial of compliance mechanisms here is no more of an injury than was the denial of prosecutions of fathers who failed to pay child support for illegitimate children in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).
FN2. The characterization of the injury suffered by the plaintiffs is important, as they emphasize that the plaintiff families and other families have been systematically denied emergency shelter. If, for example, plaintiffs were just alleging that they were denied shelter because of the incompetence or the erroneous ruling of a state employee, they clearly would not have standing. Their injury would be too far removed from the actions of HHS which has no duty to review every case or to take enforcement action for wrongful denial of ES.
HHS disputes whether the NUH has stated a sufficient injury since it has not identified particular members who have been wrongfully denied ES. HHS also disputes whether the NCH has suffered a sufficient organizational injury upon which to base standing.
[5] Since the case should not be dismissed if any of the plaintiffs has standing, the Court does not need to decide whether the NUH or the NCH have stated an injury, as the injury requirement is met by the *387 homeless families. See International Union v. Brock, 783 F.2d 237, 246 n. 12 (D.C.Cir.1986). In any case, it appears that even though the NUH has not identified members who have been injured, it has made sufficient allegations to survive this motion. See National Wildlife Federation v. Burford, 835

F.2d 305, 312-313 (D.C.Cir.1987). Furthermore, it appears that the NCH has alleged sufficient injuries to its organizational activities to meet the injury requirement under the Supreme Court's holding in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). See also Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C.Cir.1986). If its allegations are true, the NCH is not a bystander claiming injury merely because it has chosen to be concerned about an issue. Rather, it is an organization actively providing various forms of aid to homeless families, and it alleges that it has had to provide increased services because of the states' failure to do so.
B.
[6] The “causation” or “traceability” requirement looks at the nexus between the defendant's action and the harm, while the “redressability” requirement looks at the nexus between the harm and the relief available. Mideast Systems and China Civil Const. v. Hodel, 792 F.2d 1172 (D.C.Cir.1986). The causation and redressability requirements are not to be applied mechanically, and although courts look to past decisions of the Supreme Court for guidance by comparison, “it is up to courts to determine whether a particular party is properly before the court.” Id. at 1176-1177. While plaintiffs' factual allegations must be accepted as true for the purposes of a motion to dismiss, the Court must determine the legal sufficiency of the connections between the alleged injury, the challenged agency action, and the remedy sought. See Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 668-670 (D.C.Cir.1987) (“CCNV”). Where, as here, the relief sought is the action withheld, and both inquiries require an assessment of how third parties will respond to an agency's action, the causation and redressability components are closely related. See id. at 670; see also Mideast Systems 792 F.2d at 1176.
HHS points out that any injury that it has caused is indirect, and that the states have directly caused plaintiffs' injuries. HHS argues further that it is purely speculative whether states will respond to increased federal monitoring and enforcement by providing more ES. The Agency emphasizes that the EA programs, as well as the ES provisions, are voluntary, and that the ultimate sanction of withholding funds from states is unlikely to result in

the provision of shelter for the homeless. It relies most heavily on Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), and also upon Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), Linda R.S., supra, and Mideast Systems, supra, for the proposition that standing is doubtful where an independent third-party stands between the injury alleged and the relief sought. HHS also cites two unpublished decisions in cases where it successfully defended on the ground that plaintiffs lacked standing where a third-party directly caused the harm. Lewallen v. Ledbetter, No. C85-2891A (N.D.Ga. Order filed March 11, 1987); and Ingerson v. Pratt, No. 76-3255-S (D.Mass. Memorandum filed September 17, 1981).
The essence of plaintiffs' argument is that if not for HHS' inaction, the states would not systematically deny ES to eligible families (including the homeless plaintiffs). Plaintiffs argue that the states are not supposed to be independent actors, and citing International Ladies' Garment Workers Union v. Brock, 722 F.2d 795, 811-812 (D.C.Cir.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984), they argue that the Court should presume that the compliance mechanism in the statute is effective. Plaintiffs assert that an increased likelihood of tangible relief is all that is necessary to meet the redressability requirement.
*388 [7] While the fact that ultimate relief to the plaintiffs depends on the actions of third parties does not by itself defeat standing, it may make it substantially more difficult to meet the minimum requirements of Article III. CCNV, 814 F.2d at 668 (plaintiffs alleging that a report issued by the Department of Housing and Urban Development would decrease support for the homeless lacked standing since predicted reaction to the report was speculative); Von Aulock v. Smith, 720 F.2d 176, 181 (D.C.Cir.1983) (employees lacked standing to challenge EEOC interpretive bulletin since it was highly likely that employers would have continued to maintain their challenged plans in the absence of the bulletin); see also Mideast Systems, 792 F.2d at 1178 (unsuccessful bidder lacked standing to challenge Department of Interior's failure to require third-party to comply with conflict of interest regulation since the ultimate relief depended on the third-party's independent decision to award the contract). The

mere possibility that causation is present is not enough; the presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied. Mideast Systems, 792 F.2d at 1178.
Several cases decided by the Supreme Court bear this out. In Simon, supra, the Court held that indigents lacked standing to challenge IRS regulations reducing the amount of free medical care hospitals must provide in order to retain tax benefits available for charitable organizations. The Court found it “purely speculative whether the denials of service specified in the complaint fairly can be traced to [the IRS's] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.” 426 U.S. at 43, 96 S.Ct. at 1926.
In Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), the Court determined that parents of black children attending public schools in districts undergoing desegregation had no standing to challenge the government's allegedly unconstitutional grant of tax exemptions to racially discriminatory schools. The Court thought it speculative whether the denial of tax exemptions to such schools would affect the ability of plaintiffs' children to receive a desegregated education, since that depended upon the independent reactions of the schools and the parents of the children in schools to the withdrawal of tax exemptions. Id. at 759, 104 S.Ct. at 3329.
In Linda R.S., supra, the Court held that the plaintiff, the mother of an illegitimate child, did not have standing to challenge the failure of the district attorney to prosecute fathers of illegitimate children for their failure to pay child support. The Court found it speculative whether incarceration of the father would result in future payments of support. 410 U.S. at 618, 93 S.Ct. at 1149.
The most often cited rationale supporting the Court's decisions in these cases is that a close nexus between the unlawful action, the harm, and the remedy is required to ensure the full litigation of the dispute and to avoid advisory opinions and useless litigation. Presumably, the absence of the third-party directly causing the harm will deprive courts of fully briefed issues, and it will render any relief speculative. These decisions have been harshly criticized as

manipulative and as substitutes for the majority's opinions of the merits of the cases. See, e.g., Allen, 468 U.S. at 782, 104 S.Ct. at 3341 (Brennan, J., dissenting); L. Tribe American Constitutional Law 130 (1987). However, a new underlying rationale has emerged in these cases, and that is the doctrine of the separation of powers. See Allen, 468 U.S. at 760761, 104 S.Ct. at 3329-3330; see also Haitian Refugee Center v. Gracey, 809 F.2d 794, 801-807 (D.C.Cir.1987) (Bork, J.); L. Tribe American Constitutional Law 109-111 (1987).
It is unclear how the separation of powers principles affect the standing analysis. The Court in Allen stated that the principle of granting the Government the “widest latitude” in the dispatch of its own internal affairs “counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the *389 Executive Branch to fulfill its legal duties.” 468 U.S. at 761, 104 S.Ct. at 3330 (emphasis added). The Court noted that it relied on the separation of powers principles to interpret the traceability requirement. Id. at n. 26. Thus, although the Court provided no test, see 468 U.S. at 793, 104 S.Ct. at 3346 n. 10 (Stevens, J., dissenting), under Allen, an assertion of standing in a suit against the Government is particularly weak where the alleged harm is indirect or where no specific legal violations are alleged.
An example of this Circuit's attempt to deal with Allen is provided by the litigation originally known as Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973). In light of the separation of powers concerns discussed in Allen, the Court of Appeals remanded the action against the Secretary of the Department of Education for consideration of plaintiffs' standing. Women's Equity Action League v. Bell, 743 F.2d 42 (D.C.Cir.1984). Plaintiffs had originally brought suit to compel the Secretary to the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000det seq. See Adams v. Richardson, supra. As the case proceeded, the Court became increasingly involved through a series of decrees in the day-to-day operations of agencies of the Executive Branch. Adams v. Bennett, 675 F.Supp. 668, 670 (1987). On remand, the Court concluded that “[i]t is entirely speculative whether more rigid enforcement of time frames governing the administrative processing of

complaints or the cut-off of Title VI funds, the ultimate sanction, would affect the decisions of [the discriminatory institutions] or lead to changes in policy.” Id. at 677.FN3 It is not clear how the separation of powers concerns affected the Court's analysis, but Allen did appear to affect the result.
FN3. The Court stated that defendants were not charged with a policy of nonenforcement, but rather with assisting in unlawful practices. Adams v. Bennett, 675 F.Supp. at 677. The Court did not explain the significance of this distinction, and it would appear that unlawful assistance of discrimination is more closely related to the plaintiffs' injuries than is a policy of nonenforcement.
[8] In CCNV, the Court of Appeals discusses a general framework for analyzing standing in thirdparty causation cases. 814 F.2d at 668-670. To show a legally sufficient connection between the alleged injury and the challenged agency action, plaintiffs must allege facts which show that the agency's action is more than one of many factors whose relative influence may affect the third-party's behavior. Id. at 669. The facts alleged must show that the agency is a substantial factor motivating the third party's actions against plaintiffs. Id. Furthermore, the requested relief must be substantially likely to redress the injury complained of. Id. at 670. The court in CCNV did not state a requirement of harm separate from that directly caused by the third party.
[9] Taking all of the above into account, the key inquiry here is whether, under the statutory and regulatory schemes involved, HHS is a substantial factor affecting the states' actions against the plaintiffs, to the extent that granting the relief requested against HHS would be substantially likely to redress plaintiffs' injuries. This inquiry determines the extent to which the states are independent variables which might render the ultimate relief speculative. The connections between the injury and the alleged unlawful conduct will be closest when a violation of a specific legal obligation is alleged, as opposed to an unlawful exercise of discretion. An alleged failure to take discretionary action is a particularly weak link in a causal chain where enforcement decisions are involved. See, e.g.,

Linda R.S., 410 U.S. at 618, 93 S.Ct. at 1149; see also Allen, 468 U.S. at 792, 104 S.Ct. at 3346 (Stevens, J., dissenting).
Plaintiffs allege that but for HHS's failure to monitor the state plans for improper denials of EA, they would have received the shelter assistance to which they were entitled. Plaintiffs alleged chain of causation is that if HHS had monitored the states for underpayment and improper denials of payments, it would have discovered that some states are systematically denying emergency shelter assistance to eligible *390 families, and if HHS had not abdicated its enforcement duties, it could have taken enforcement actions which would have compelled the states to provide emergency shelter to all eligible applicants. Plaintiffs have alleged that in failing to monitor, HHS has violated its regulations. For the purpose of this motion, we can assume that some states are in substantial noncompliance with provisions in their EA plans, and that they are systematically denying emergency shelter to eligible families. Plaintiffs assert that the Court should also assume that the withholding of funds as provided for by 42 U.S.C. § 604 will be effective in compelling the states to comply with their plans.
III.
[10] At a minimum, to show that HHS is a substantial factor in the denial of EA to eligible families, plaintiffs have to allege facts which show that in implementing their plans, the states are violating federal requirements, and that the violation of these requirements results in the denial of EA to eligible families. HHS might be a substantial influence on the states' compliance with the federal requirements, since the states have indicated that they want the benefits of participation in the EA program, and that they are willing to meet the federal requirements in order to get them.
The optional state provisions are distinguishable from the federal requirements which Congress or the Agency have made a condition of the states' receiving the benefits of participation in the EA program. If a state is violating a provision in its plan which is not a federal requirement, it could remedy that violation by changing its plan. Thus, although states are obligated to adhere to their optional provisions, Koster, v. Webb, (1983) 598 F.Supp. 1134 FN4 it is speculative

whether federal enforcement of those provisions will lead to additional assistance where the states are at liberty to drop those provisions from their plans. See, e.g. Quern. Furthermore, the Act and the regulations clearly focus on the enforcement of federal requirements. 42 U.S.C. § 604; 45 C.F.R. §§ 201.6 and 201.13. This is not to say that HHS has no authority or duty to monitor and enforce the states' adherence to the optional provisions of their plans. See eg45 C.F.R. § 210.10. However, the traceability and redressability factors are too remote and speculative to grant plaintiffs standing to force the Agency to take such action.
FN4. The situation in Koster is clearly different from this case. There, plaintiffs were directly suing the state to enforce an alleged statutory entitlement to benefits. The court held that plaintiffs stated a claim, despite the fact that the states undertook the obligation voluntarily. It is quite different for plaintiffs here to allege that they would receive their benefits if HHS would attempt to coerce the states to adhere to their voluntary undertakings.
The main point is that when it comes to eligibility and the amount of EA which the states provide, the states have broad discretion and flexibility. HHS, while not powerless, does not have the leverage over the states under this system to ensure that the relief plaintiffs seek here will be anything other than speculative. While the states might react to increased federal monitoring and enforcement of their programs by providing ES to all who are eligible, they might also limit eligibility, or limit the services provided under their EA programs, such as ES. They might also completely withdraw from the EA program. There is no reason to presume that the alleged mandated sanction of withholding further funds from a state that is in substantial noncompliance with federal regulations will also be effective in the enforcement of optional provisions. There is considerable doubt as to whether that sanction will be effective where the alleged violation is a failure to spend sufficient funds to meet the needs of eligible applicants for ES. Thus, HHS' control over the states' provision of ES to eligible applicants is speculative and indirect.
For the reasons discussed above, this Court concludes

that the plaintiffs lack standing to bring this suit. Accordingly, defendants' motion to dismiss should be granted and this case should be dismissed. An appropriate Order has been entered.
D.D.C.,1989. Coker v. Bowen 715 F.Supp. 383
END OF DOCUMENT

 
 United States Court of Appeals, District of Columbia Circuit.
Gale COKER, et al., Appellants, v.
Dr. Louis W. SULLIVAN, Secretary, U.S. Department of Health and Human Services, et al.
No. 89-5155.
Argued April 2, 1990. Decided May 4, 1990. As Amended May 10, 1990.
Homeless families and organizations advocating rights of the homeless brought action to require Department of Health and Human Services to monitor and enforce states' compliance with emergency assistance plans. The United States District Court for the District of Columbia, John Garrett Penn, J., granted government's motion to dismiss, 715 F.Supp. 383, and plaintiffs appealed. The Court of Appeals, Ruth Bader Ginsburg, J., held that Administrative Procedure Act did not provide right of action for plaintiffs to demand court order directing Department to monitor and enforce Social Security Act's purported command that states comply with provisions of state emergency assistance plans.
Affirmed.
*85 **120 Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-02448). Glenn B. Manishin, with whom Carl S. Nadler, Washington, D.C., and Maria Foscarinis, New York City, were on the brief, for appellants. David E. Zerhusen, Washington, D.C., also entered an appearance for appellants. Mark E. Nagle, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before EDWARDS, RUTH BADER GINSBURG, and BUCKLEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge: This case concerns the justiciability of a suit by

homeless families and advocacy organizations to require the Department of Health and Human Services (HHS or the Department) to monitor and enforce state compliance with state Emergency Assistance plans. The district court granted HHS' motion to dismiss for lack of standing, and plaintiffs have appealed. We affirm the district court's dismissal of the case because we conclude that plaintiffs have no right of action under the Administrative Procedure Act (APA). We therefore pretermit an inquiry into plaintiffs' standing to sue.
*86 **121 I.
We explain first the statutory and regulatory structure of the Emergency Assistance program and the procedural history of this case. Emergency Assistance (EA) is an optional component of the multicomponent Aid to Families with Dependent Children (AFDC) program established by Title IV-A of the Social Security Act (the Act). See42 U.S.C. §§ 603(a)(5), 606(e)(1). AFDC is a matching grant program in which state participation is voluntary but, in practice, universal. The EA component, however, is offered by only 28 states. Congressional prescriptions regarding EA are slim. States have more control over the services they provide in their EA programs than in the bulk of their AFDC plans. See42 U.S.C. § 606(e)(1). States also have greater leeway in establishing eligibility standards for EA. See Quern v. Mandley, 436 U.S. 725, 98 S.Ct. 2068, 56 L.Ed.2d 658 (1978). Participating states, however, must include as potential EA beneficiaries all AFDC recipients. See Blum v. Bacon, 457 U.S. 132, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982).
Under provisions of the Act codified in section 602 of the United States Code, state overall AFDC plans must include, among other terms, a commitment to “make such reports, in such form and containing such information, as [HHS] may from time to time require, and comply with such provisions as [HHS] may from time to time find necessary to assure the correctness and verification of such reports.” 42 U.S.C. § 602(a)(6). Another section of the Act, entitled “Deviation from plan,” provides that HHS “shall make no further payments to” any state if, “after reasonable notice and opportunity for hearing to the State agency administering or supervising the administration of [the state] plan,” the Department finds that administration of the plan fails to comply

substantially with the requirements of section 602. See id. § 604(a).
It bears emphasis that EA, for states that participate in the program, is but one part of the overall AFDC plan the state submits to HHS. No Title IV-A provision expressly orders states to adhere to their approved plans. At least one federal district court, however, has held that the Act requires states to comply with the EA components of their plans. See Koster v. Webb, 598 F.Supp. 1134 (E.D.N.Y.1983).
HHS' regulations explicitly require state compliance with AFDC plan provisions as well as with the Act and detail a spectrum of review and compliance procedures. States must apply eligibility conditions “on a consistent and equitable basis throughout the State” and must not exclude groups or individuals from eligibility “on an arbitrary or unreasonable basis.” 45 C.F.R. § 233.10(a)(1). State plans offering EA must prescribe that assistance “will be given forthwith.” Id. § 233.120(a)(5).
HHS' regulations provide that the Department “conducts a review” of state AFDC plan administration to determine whether the states are adhering to “Federal requirements and to the substantive legal and administrative provisions of their approved plans.” Id. § 201.10(a). Each state is “required to carry out a continuing quality control program” and HHS “conducts a continuing observation of these State systems.” Id. § 201.10(b). “Annually, or at such frequencies as are considered necessary and appropriate, the operations of the State agency are audited” by the Department for compliance with the “Act and State plan.” Id. § 201.12(a). If audits or reviews “reveal serious problems with respect to compliance with any Federal requirement, the State agency is required to correct its practice.” Id. § 201.13(b). Finally, the regulations authorize withholding of payments to a state when the state's plan fails to comply with a “Federal requirement.” Id. § 201.6(a).
This controversy began when the Cokers and the Porters, two homeless families, the National Union for the Homeless (NUH), an organization of homeless and formerly homeless people, and the National Coalition for the Homeless (NCH), an advocacy and service organization, filed a complaint in the district court seeking declaratory and injunctive

relief against HHS. The plaintiffs asserted a right of action under the *87 **122 APA. Specifically, they alleged that HHS had acted arbitrarily, capriciously, and contrary to law by (1) failing to comply with its regulations, and (2) demanding state compliance only when states improperly granted assistance and not when states wrongly denied benefits. See5 U.S.C. § 706(2). Plaintiffs also charged that the Department had unlawfully abdicated its monitoring and enforcement duties under the Act. See5 U.S.C. § 706(1).
HHS moved to dismiss on the grounds that plaintiffs: (1) lacked standing; (2) had no right of action under the APA because they had other adequate relief, see Council of and for the Blind v. Regan, 709 F.2d 1521, 1532 (D.C.Cir.1983) (en banc); and (3) lacked an APA claim under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The district court granted the motion for lack of standing and did not address the government's other arguments. Plaintiffs appealed.
II.
Plaintiffs' standing presents a question of first impression in this court. The difficulty of this question is highlighted by the district court's evident discomfort in relying on standing to dismiss the case.
See Coker v. Bowen, 715 F.Supp. 383, 388 (1989) (Memorandum Dismissing Complaint for Lack of Standing) (noting that standing decisions relying on the questionable capacity of the requested relief to redress the alleged injury have been “harshly criticized as manipulative and as substitutes for the majority's opinions of the merits of the cases,” but recognizing “new underlying rationale” of “separation of powers”). The district court's discomfort is understandable for, to the extent the standing inquiry asks who may sue, the Cokers and the Porters, as EA beneficiaries, would appear to be vitally interested parties.FN1 The concern here, however, is what a plaintiff must state and show to obtain a court order compelling an oversight agency to engage in more comprehensive monitoring and enforcement.
FN1. Under current standing doctrine, of course, plaintiffs must not only allege an actual or threatened injury but must plausibly plead a causal connection between

the injury they identify and the illegal action they target. See infra p. 87.
As plaintiffs' counsel conceded at oral argument, this suit differs from previous cases in which this court has found standing on the part of plaintiffs demanding increased federal oversight. Plaintiffs do not allege that the states have misused federal money; plaintiffs charge instead that the states should be doing more with federal money and their own funds. Cf. Women's Equity Action League v. Cavazos, 879 F.2d 880 (D.C.Cir.1989) (plaintiffs, enrolled in or employed by state educational institutions, had standing to challenge federal subsidization of the institutions, which allegedly engaged in federallyprohibited discrimination). Even if the Act requires states to conform to the optional provisions of their plans, states confronted with HHS' enforcement efforts would not necessarily provide EA to plaintiffs but might instead alter the plans to achieve compliance. Cf. International Ladies' Garment Workers' Union ( ILGWU) v. Donovan, 722 F.2d 795 (D.C.Cir.1983) (factory worker union had standing to challenge the repeal of regulations barring employment of homeworkers, because employer compliance with the regulations would necessarily prevent the alleged injury, homeworker competition with factories).
[1] These differences raise the question whether plaintiffs' theory of injury satisfies current Article III doctrine that the alleged injury be fairly traceable to the challenged action and redressable by the requested relief. But cf. Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (1986) (association had standing to demand that the President impose sanctions on Japan for that nation's failure to comply with whale harvest quotas set by international agreements). We need not resolve this difficult question, however, because we are convinced that even if one or more of the plaintiffs have standing, plaintiffs nonetheless lack congressional*88 **123 authorization to bring this action.
Although standing is usually a threshold inquiry, both the Supreme Court and this Circuit have long recognized the propriety of avoiding difficult, constitutionally-based justiciability issues when a case is more simply resolved on another basis. See

Secretary of the Navy v. Avrech, 418 U.S. 676, 67778, 94 S.Ct. 3039, 3040, 41 L.Ed.2d 1033 (1974); Chandler v. Judicial Council, 398 U.S. 74, 89, 90 S.Ct. 1648, 1656, 26 L.Ed.2d 100 (1970); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Lorion v. Nuclear Regulatory Comm'n, 785 F.2d 1038, 1041 (D.C.Cir.1986); National Wildlife Fed'n v. United States, 626 F.2d 917, 924-26 & n. 16 (D.C.Cir.1980);
Adams v. Vance, 570 F.2d 950, 954 n. 7 (D.C.Cir.1978) (per curiam); Chinese Am. Civic Council v. Attorney General, 566 F.2d 321, 325 & n. 9 (D.C.Cir.1977); Marker v. Shultz, 485 F.2d 1003, 1004 (D.C.Cir.1973). We believe this path especially appropriate here, because the alternative rationale on which we rely is also a jurisdictional limitation, although one derived from statute rather than the Constitution.
III.
[2] Turning now to this dispositive issue, we hold that the APA does not provide a right of action for plaintiffs to demand from a court an order directing HHS to monitor and enforce the Social Security Act's purported command that states comply with the provisions of state EA plans. Congress has not limited HHS' discretion to control its enforcement of the EA component of the AFDC program. Injured parties may secure state compliance with EA pledges through fair hearing procedures and, if state noncompliance indicates a pattern violative of federal law, through direct suits against the states. The federal courts, however, lack authority to spur or to channel the Department's enforcement efforts in the manner plaintiffs demand.
[3] The Supreme Court explained in Heckler v. Chaney, supra, that the APA does not usually provide a right to judicial review of an agency's failure to enforce statutory provisions entrusted to agency supervision. The Court noted that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” See id. 470 U.S. at 831, 105 S.Ct. at 1655. Unless Congress has provided “meaningful standards for defining the limits of that discretion,” the APA does not permit the courts to interfere. Id. at 834, 105 S.Ct. at 1657.FN2

FN2. Plaintiffs contend that Heckler v. Chaney“does not bar actions in which the extent of agency discretion turns on a construction of the agency's substantive statute.” Plaintiffs' Supplemental Brief at 19. We assume that plaintiffs are entitled to a judicial resolution of the question whether the Social Security Act affords HHS the enforcement discretion the Department claims. This question, however, is precisely the one we resolve below when we determine under the Heckler v. Chaney inquiry that plaintiffs are not entitled to have a court monitor HHS enforcement.
The Social Security Act provides no reviewable standards circumscribing HHS' enforcement discretion over the EA component of the AFDC program. Although the Act empowers the Department to demand reports and other information regarding state AFDC plans, the Act nowhere commands the Department to request particular information. See42 U.S.C. § 602(a)(6). The statute mandates that HHS withhold federal funds from a state AFDC plan if the Department finds “that in the administration of the plan there is a failure to comply substantially with any provision required by section [602].” Id. § 604(a). The Act provides no guidelines, however, to channel HHS' decision whether a state has failed to comply substantially, and the Department reasonably maintains that a compliance failure solely within the EA component of a state's multicomponent AFDC plan is not necessarily substantial. Moreover, plaintiffs have not pointed to an explicit provision of section 602 with which any particular state's EA program fails to *89 **124 comport.FN3
FN3. Plaintiffs contend they have alleged that some state plans violate section 602's requirements that a plan be “in effect” throughout the state and provide fair hearings to applicants whose benefit claims are refused. See Plaintiffs' Supplemental Brief at 14 n. 22, 17 n. 25. Plaintiffs, however, have identified only a paragraph in which they allege that Illinois' EA plan violates the “equitable treatment” requirement of 45 C.F.R. § 233.10(a)(1), as interpreted in HHS Action Transmittal No. SSA-AT-82-28 (Nov. 5, 1982) and Blum v.

Bacon, supra. The complaint allegation that “Illinois furnishes emergency shelter only to families receiving Aid to Families with Dependent Children” does not constitute a violation of the regulation as interpreted in either the Action Transmittal or Blum v. Bacon. Plaintiffs, therefore, have not made any viable, concrete claim that state plans contravene any federal mandate independent of the purported requirement that states comply with the promises in their plans.
To the extent plaintiffs rely not on the statutory language but on HHS' regulations, these regulations impose no more meaningful a limitation on the Department's enforcement discretion than does the Act. The regulations, like the Act, address monitoring and enforcement of state AFDC plans as a whole, not just their EA adjuncts. Plaintiffs have not charged that HHS has failed to regulate state AFDC plans altogether.FN4 The regulation governing withholding of funds essentially tracks the statutory language. See45 C.F.R. § 201.6. And the regulations governing HHS' reviews and audits do not impose any specific schedule or time frame on the Department. See id. §§ 201.10, 201.12.
FN4. Because the Act and HHS' regulations address monitoring and enforcement of the entire AFDC program, plaintiffs cannot tenably claim that the Department has “adopted a general policy which is in effect an abdication of its statutory [or regulatory] duty.” See Adams v. Richardson, 480 F.2d 1159, 1162 (D.C.Cir.1973) (en banc). We need not decide therefore whether such a claim remains viable under the APA after Heckler v. Chaney. See 470 U.S. at 833 n. 4, 105 S.Ct. at 1656 n. 4.
Heckler v. Chaney explained that the presumptive unreviewability of enforcement decisions stems from the recognition that an agency choice not to enforce generally involves a complicated balancing of factors peculiarly within the agency's expertise. See 470 U.S. at 831, 105 S.Ct. at 1655. The agency must assess whether its resources are best spent on one violation or another, whether the agency is likely to succeed if it acts, whether the requested enforcement action fits the agency's overall policies, and whether

the agency would have enough resources to undertake the requested action in any event. See id.
The practical judgment reflected in Heckler v. Chaney is especially evident in this case, in which plaintiffs acknowledge that HHS has many programs to supervise and may consciously have decided to concentrate monitoring on some elements of the AFDC program rather than others. This court should not steer the Department's resources and shape its priorities when we lack knowledge of the matters competing for the Department's attention. See Antone v. Block, 661 F.2d 230, 234 n. 6 (D.C.Cir.1981).
We have previously expressed hesitation to position this court as supreme supervisor of federal agency enforcement, a role more effectively performed by the Executive under congressional scrutiny. See Council of and for the Blind, 709 F.2d at 1532. As we explained in that case, the APA specifically provides that, if other remedies are adequate, federal courts will not oversee the overseer. See5 U.S.C. § 704. The alternative remedies available to plaintiffs here resemble those this court found sufficient to bar APA review in Council of and for the Blind.
Federal law guarantees “any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness” an opportunity for a “fair hearing” before a state administrative agency. SeeU.S.C. § 602(a)(4). These state administrative hearings may be subject to judicial review. See45 C.F.R. § 205.10(a)(17) (states must give written notice of administrative decision and of possibility of judicial review, if it is available). To the extent plaintiffs complain that state plans violate federal law, they have a right of action against offending states under the Supremacy Clause or 42 U.S.C. § 1983. See, e.g., *90 **125 Blum v. Bacon, supra (Supremacy Clause); Quern v. Mandley, supra (42 U.S.C. § 1983). Indeed, at least one federal court has held that plaintiffs have a section 1983 action against a state to force its compliance with its plan provisions. See Koster v. Webb, supra. State court actions against the states, moreover, may be available to redress violations of law. See Littlefield v. State Dep't of Human Servs., 480 A.2d 731 (Me.1984).FN5
FN5. Plaintiffs attempt to distinguish Council of and for the Blind by arguing that

fair hearings and suits against the individual states cannot provide the systemic relief plaintiffs seek or any relief against the federal government. Council of and for the Blind, however, rejected quite similar arguments. See 709 F.2d at 1532. Suits against the states may well be as effective in providing systemic relief as judicial oversight of federal government enforcement. Furthermore, the critical injury plaintiffs allege is the denial of EA to eligible families, and this injury can be redressed without any relief against the federal government. As plaintiffs acknowledge, Council of and for the Blind interpreted the APA “to bar suits where a plaintiff's injury may be remedied in another action, even if that remedy would have no effect upon the challenged agency action.” Plaintiffs' Supplemental Brief at 13.
Actions directly against the states are not merely adequate; they are also more suitable avenues for plaintiffs to pursue the relief they seek. The states are the immediate cause of the injuries of which the Cokers and the Porters complain; these plaintiffs ask HHS not to refrain from harming them but rather to cure their state-created injuries.FN6 Cf. California Ass'n of the Physically Handicapped v. FCC, 778 F.2d 823, 825 (D.C.Cir.1985). In view of the states' role as primary administrators of the AFDC and EA programs and the absence of any indication that Congress intended to permit suit directly against HHS, the APA should not be interpreted to permit plaintiffs to bypass direct relief against the states.
FN6. Plaintiff organizations also complain that they have been injured because they have been deprived of information they could use to lobby or otherwise to persuade the states to provide EA in accordance with state plans. This informational deprivation, however, only hinders the organizations' goals because of the states' failure to dispense EA, and document their performance, as they have promised.
Conclusion
In Council of and for the Blind, this court acknowledged that the APA recognizes the

inappropriateness of charging courts with perpetual oversight of agency enforcement and therefore denies federal court supervision if other avenues of relief are adequate. Similarly, in Heckler v. Chaney, the Supreme Court explained that judges are not well positioned to guide agency enforcement and noted the resultant presumption against the reviewability of agency oversight choices. Because the leitmotiv in these cases forecloses federal court review of plaintiffs' claims under the APA, we do not pass on the question of plaintiffs' standing.
For the reasons stated, the district court's dismissal of plaintiffs' complaint is affirmed.
C.A.D.C.,1990. Coker v. Sullivan 902 F.2d 84, 284 U.S.App.D.C. 119
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