Edward R. Fountain v. The United States and Redevelopment Land Agency , 427 F.2d 759 ( 1970 )

ON DEFENDANT’S MOTION TO DISMISS

PER CURIAM:

This action is before us on petition and motion to dismiss. The plaintiff alleges (including his allegations in opposition to the motion) that he was the sole owner of a business concern known as the Tropieana Cafe and Lounge, situated at 113 H Street, NW., Washington, D. C., that in May 1966, defendant’s agents advised him he was in an urban renewal area and promised him $15,000 to relocate, that he did arrange to relocate ánd made various business arrangements in preparation for it, that plaintiff notified defendant he was ready, willing and able to relocate, that in December 1966, defendant refused to pay plaintiff and instead paid the relocation costs to one Thorpe, all to plaintiff’s great financial loss. The articles to be relocated consisted of furniture and fixtures covered in a sale agreement which was a part of plaintiff’s lease on his Cafe premises. Thorpe was the landlord. Plaintiff was to pay Thorpe for the furniture and fixtures an unpaid balance of $3,000 in monthly installments of $50 per month, bearing interest at six percent. The lease was dated March 1965, so it is clear that all installments were not yet paid or due in December 1966. The sale was stated in the lease to be on a conditional sale basis and title was to remain in the vendor until the purchase price was fully paid. It is obvious from plaintiff’s recitals that defendant paid Thorpé to relocate the furniture and fixtures and refused to pay plaintiff because defendant regarded Thorpe and not plaintiff as their owner on the relocation date, but except as stated, the foundation for its belief is not before us. Defendant has not supported its motion with any documents or evidence to show the reason for the official choice that evidently was made. A majority of the court, however, is of the opinion that a plaintiff cannot furnish so obvious an explanation for an official decision and expect the court to speculate that some other unrevealed basis may have been the true one.

The District of Columbia Redevelopment Land Agency is the alleged promissor and is improperly named as a codefendant in the petition. But defendant assures us that it is a Federal agency, not a local one, and thus its contracts would be included among contracts of the United States enforceable under the Tucker Act, 28 U.S.C. § 1491, in suits against the United States. It cites Goddard v. District of Columbia Redevelopment Land Agency, 109 U.S. App.D.C. 304, 287 F.2d 343, 345 (1961). We assume arguendo that this is so for the purposes of our decision, since, as will appear, we consider that jurisdiction has been withheld from us otherwise. Thus the inartistic naming of the Agency as co-defendant is of no importance.

Defendant’s original motion relied mainly on the allegations sounding in tort with which the petition and the papers in opposition to the motion are replete. We do not sustain the motion on this ground. If contractual relations exist, the fact that the alleged breach is also tortious does not foreclose Tucker Act jurisdiction. Burtt v. United States, 176 Ct.Cl. 310, 314 (1966).

The provision for relocation payments, 42 U.S.C. § 3074, appears to be subject to 42 U.S.C. § 1465(e) (Supp. IV 1965-68) implemented by 24 C.F.R. § 3.104(c) (1966), by which an administrative decision as to eligibility for relocation assistance “shall be final and conclusive for any purposes and not subject to re-determination by any court or any other officer.” In Merge v. Troussi, 394 F.2d 79 (3d Cir.1968), that court held that this language barred judicial review of an administrative decision as to eligibility even to determine if it was arbitrary and capricious. In Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167 (1923), it is held that payment of a condemnee’s removal expenses, though more than a mere gratuity, is beyond the Fifth Amendment guarantee of “just compensation,” so it would seem that the Congress would have power to bar the courts from participating in the award of removal expenses, and that, as to the issue of eligibility at any rate, it has done so here. We are aware of decisions such as Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967), giving other finality language its literal scope and no more, but we do not think any unsympathetic interpretation of the present statute can change the result here because the instant administrative decision as to eligibility appears to be exactly of the kind the Congress meant to keep out of the courts. United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), warns us to respect finality language in eases other than of a flagrant constitutional violation, a standard we have subsequently sought to apply as a benchmark for the scope of our judicial review of court-martial sentences in Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. - (decided April 17, 1970). It is to be noted that plaintiff here does not even allege that Thorpe was not the owner, or that the Agency erred in treating him as such. There is also no allegation of a lack of due process by the Agency in making its determination.

This jurisdictional point we first raised of our own motion, as it was our duty to do. See Todd v. United States, 292 F.2d 841, 844, 155 Ct.Cl. 87, 93 (1961). But defendant now shows it thinks we were right in raising it.

Plaintiff’s theory seems to be that the oral promises allegedly made to him have somehow a legal being of their own apart from the statute and regulation the involved officials were supposed to be administering. This must fail. The rather general commitments alleged must be construed as promises to pay relocation expenses to plaintiff if and to the extent that he qualified himself to receive them. Any promises that went further were beyond the scope of the officials’ authority and therefore unenforceable. Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791 (1917). Thus no oral promises could relieve plaintiff of his continuing obligation to satisfy the Agency as to his eligibility, a matter which was within its unreviewable discretion. If the Agency held that eligibility turned on the situation at the time of moving, not earlier, this would seem a fair construction of the statute. Taking plaintiff’s allegations as true, it is unnatural, and an exercise of the imagination only, to say the Agency held him eligible and then changed its official mind, and plaintiff does not so allege.

We think, however, that the dissent of some of our number is unsurprising in light of defendant’s omission to inform us from the official records what determination or determinations were actually made and our lack of judicial knowledge of the practices and policies of the Agency involved, which is before us in litigation for the first time, we believe.

Therefore, the motion to dismiss must be allowed, and the petition is dismissed.