Grumman Ohio Corporation v. Elizabeth Hansford Dole, Secretary U.S. Department of Transportation , 776 F.2d 338 ( 1985 )

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Circuit Judge WALD.

STARR, Circuit Judge.

This appeal has its roots in contract litigation pending in the United States District Court for the Northern District of Illinois between a bus manufacturer and a regional transit authority. In that action, the federal court in Chicago determined that the parties there (Grumman Ohio Corporation, the bus manufacturer, and the Regional Transportation Authority of Chicago, the purchaser of buses) were required to submit their contract dispute to a federal administrative agency, the Urban Mass Transportation Administration (UMTA), for extrajudicial resolution. When the dispute was thereafter submitted to UMTA, however, that agency refused to provide the type of arbitral forum and procedure requested by Grumman. Suit was then brought by Grumman in the United States District Court for the District of Columbia to compel UMTA to fill what Grumman viewed as the agency’s arbitral role. The District Court in Washington, however, granted summary judgment in favor of UMTA, holding that UMTA was not required to resolve a common-law dispute. Grumman timely appealed, contending that UMTA was required to arbitrate the Regional Transportation Authority-Grumman dispute, with the full panoply of hearing procedures. We now affirm.

I

UMTA is an agency within the Department of Transportation charged with responsibility under the Urban Mass Transportation Act of 1964, Pub.L. No. 88-365, 78 Stat. 302 (1964) (codified as amended at 49 U.S.C. app. § 1601-18 (1982)), for furthering the improvement and development of mass transportation. Pursuant to that charge, UMTA provides funding to local transportation agencies to assist in defraying the cost of purchasing new buses. Regional Transportation Authority (“RTA”) of Chicago, Illinois is a local agency which received funding through a UMTA grant. The funds were used to purchase buses manufactured by Grumman Flxible Corporation, the predecessor of Grumman of Ohio Corporation (both referred to as “Grumman”). The relationship between UMTA and RTA was thus one of grantor and grantee respectively, while the relation between RTA and Grumman was one of purchaser and vendor respectively.

Pursuant to its statutory responsibility, UMTA had previously promulgated, after public notice and comment, see 42 Fed.Reg. 9645 (1977); 42 Fed.Reg. 13,816 (1977), a document entitled “Baseline Advanced Design Transit Coach Specifications,” commonly referred to within the industry as the “White Book.” The White Book contained provisions for the solicitation, offer and award of contracts, technical specifications for the buses themselves, quality assurance provisions, and warranty provisions that must be met by contractors. See White Book, reprinted in Joint Appendix at 318. Included in the White Book was the Disputes Clause at issue here. That clause, which is critical to our resolution of this case, provides as follows:

Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by an agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to UMTA a written appeal. The decision of UMTA’s duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.

This clause does not preclude consideration of law questions in connection with decisions provided for in this clause, provided that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

White Book at I-27-I-28, Joint Appendix at 351-52.

Use of White Book specifications was binding on UMTA grantees at all times relevant to the case at hand, see 46 Fed. Reg. 49,038 (1981) (“Current DOT policy is that grantees must use the White Book’ specifications when purchasing Advanced Design Buses____”), although mandatory use of White Book specifications has since been rescinded, see 47 Fed.Reg. 44,457 (1982). As a UMTA grantee, RTA was hence required to include the Disputes Clause in its contract to purchase buses. RTA solicited bids for the purchase of 205 buses and entered into a contract with Grumman for their sale and delivery. The contract accordingly contained the Disputes Clause.

A dispute subsequently arose between RTA and Grumman when the buses were discovered to have stress problems in their understructures. While the problem proved correctable and Grumman made the required repairs, RTA demanded consequential damages resulting from the loss of service of the buses during the repair period. RTA brought suit in Illinois state court, whereupon Grumman removed the action to United States District Court for the Northern District of Illinois (the “Illinois litigation” or the “RTA-Grumman litigation”), Regional Transportation Authority v. Grumman Flxible Corp., 532 F.Supp. 665 (N.D.Ill.1982). UMTA, it is important to note, was not a party to the Illinois litigation. In that litigation, Grumman moved to dismiss the complaint on the grounds that RTA had failed to exhaust the administrative remedy embodied in the Disputes Clause. The federal court in Chicago determined that the particular dispute was indeed within the scope of the Disputes Clause and thus dismissed the suit, without prejudice, so the prescribed administrative procedures could be exhausted.

In the wake of this decision in the Illinois litigation, RTA submitted the dispute, along with additional claims, to the RTA Contracting Officer who, in an ex parte proceeding, found in favor of RTA. In accordance with the Disputes Clause, Grumman notified the UMTA Administrator that it was appealing the Contracting Officer’s decision. Grumman specifically requested “a copy of UMTA’s procedures for processing appeals of this nature, including procedures for a formal hearing in Washington, D.C. with stenographic transcription, sworn testimony, etc., and the procedures for prehearing discovery (interrogatories, depositions, and the like).” Joint Appendix at 72. Grumman went on to state its assumption “that all proceedings in this matter are de novo, that the Contracting Officer’s determination is to be accorded no evidentiary or other weight or consideration, and that RTA bears the burden of proving each and every element of the claims it has asserted.” Id.

UMTA’s reply set forth a detailed set of procedures by which Grumman was to submit a written statement indicating the specific portions of the Contracting Officer’s decision that were being challenged, along with Grumman’s position with regard to each disputed finding and the rationale for its position. Under these procedures, UMTA would furnish a copy of that submission to RTA for comment. RTA’s response would then be provided to Grumman, and both parties would be allowed to submit further comments. UMTA also designated the individual who would render decision in the matter, based entirely on the foregoing written submissions with no formal hearing or discovery. Joint Appendix at 78-79.

In this same reply, UMTA set out its reasoning for adopting the limited, paper procedure it was offering. Because of its importance to our resolution of the present appeal, we now set forth the pertinent part of UMTA’s reply to Grumman:

Since UMTA is not a direct party to the contract between a grantee and the selected manufacturer, the Disputes Clause was viewed as a mechanism whereby UMTA’s assistance could be sought in resolving issues relating to the specifications, and to ensure that competition would continue to be fostered by having consistent interpretations of the contract requirements____ The Disputes Clause was intended to allow UMTA to decide, on a de novo basis, only those issues directly related to the interpretation and effectiveness of the White Book Specification. It was never intended to apply to issues relating to performance or damages arising out of post-delivery problems. The grant agreement between UMTA and RTA in fact specifically provides that:

“No Government Obligations to Third Parties. The Government shall not be subject to any obligations or liabilities by contractors of the Recipient or their subcontractors or any other person not a party to this Agreement in connection with the performance of this Project without its express, written consent and notwithstanding its concurrence in or approval of the award of any contract or subcontract or the solicitation thereof.” Thus, where the issues do not relate directly to the White Book Specifications, UMTA’s review is far more limited in scope____ [I]f the appeal raises issues which are primarily local in nature, UMTA’s review will be limited to determining whether RTA’s decision was reasonable. If the appeal raises questions which are primarily Federal in nature, we will review them on a de novo basis.

Id. at 78A-79.

To no avail, Grumman protested these proposed procedures as inadequate. Noting Grumman’s failure to address the merits of the appeal and finding that the Contracting Officer’s determination was reasonable on its face, UMTA sustained the Contracting Officer’s determination. Joint Appendix at 188. However, UMTA’s designated decision-maker took pains to emphasize the limited nature of his decision:

I would emphasize the limited nature of my review, for this appeal does not concern the type of dispute for which the Disputes Clause was intended. Rather, this appeal concerns matters to be resolved between the two parties in a court of competent jurisdiction under applicable State law, without UMTA involvement or reference to the Disputes ■ Clause.

Id. at 78A-79.

Following UMTA's decision, both Grumman and RTA returned to court as plaintiffs in separate actions in separate jurisdictions. RTA again filed suit in the Northern District of Illinois, renewing its claims advanced in the original Illinois litigation and setting forth other claims included in its submission to the RTA Contracting Officer. Grumman moved to stay the reincarnated Illinois litigation, pending the outcome of Grumman’s suit in federal district court here. That motion was granted, see Memorandum Opinion and Order of October 3, 1983, reprinted in Joint Appendix at 225, and thus the federal litigation here in Washington proceeded while the Illinois lawsuit was held in abeyance.

Grumman’s action in the District of Columbia was not against RTA at all but was, rather, brought against UMTA, seeking both injunctive and declaratory relief. Specifically, Grumman sought (1) a declaratory judgment that UMTA’s decision was invalid and contrary to law, and (2) a permanent injunction requiring UMTA to provide de novo review of the Contracting Officer’s decision under the procedures Grumman found implied by the Disputes Clause. Both Grumman and UMTA filed motions for summary judgment. Holding that Grumman was not entitled to more than the procedures offered by UMTA, the District Court granted summary judgment in favor of UMTA. The court also agreed with UMTA’s view that the agency’s decision in the contract dispute between Grumman and RTA was due no collateral estoppel effect in the Illinois litigation and that RTA and Grumman were thus entitled to trial de novo in that action. See Memorandum of July 13, 1984, reprinted in Joint Appendix at 533.

The litigation has thus continued along both fronts. The RTA-Grumman suit remains in the Northern District of Illinois. That action is, of course, not within our purview. It is solely the District of Columbia litigation between Grumman and UMTA that is on appeal here. Specifically, we are called upon to review the District Court’s determination that UMTA was not required to provide the forum and procedures requested by Grumman.

II

Before turning to the question of UMTA’s obligations under the Disputes Clause, we first address a jurisdictional issue raised by UMTA. The District Court, UMTA contends, lacked subject matter jurisdiction over this case.¹ The agency dismisses the possibility of jurisdiction under the Administrative Procedure Act or the Declaratory Judgment Act, since neither statute constitutes, under settled law, an independent fount of federal jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977) (“[T]he APA does not afford an implied grant of subject-matter jurisdiction permitting subject matter review of agency action.”); Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1960) (Declaratory Judgment Act not an independent source of federal jurisdiction).

UMTA also dismisses the possibility of Mandamus Act jurisdiction, 28 U.S.C. § 1361 (1982), since, in UMTA’s view, nowhere is there to be found a clearly defined, peremptory duty on its part to provide Grumman the full-dress administrative procedures that it seeks. See King v. Morton, 520 F.2d 1140, 1146 (D.C.Cir.1975) (“Not only is a duty owed to the plaintiff necessary to give the district court jurisdiction under section 1361, but ... ‘[t]he writ should be used only when the duty of the officer to act is clearly established and plainly defined and the obligation to act is peremptory.’ ”) (quoting Hammond v. Hull, 131 F.2d 23, 25 (D.C.Cir.1942), cert. denied, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145 (1943)). While this jurisdictional inquiry is unanswerable without touching on the merits, see id. at 1146 (“Whether the Secretary has such a duty is a jurisdictional question, which cannot be answered without inquiry into the merits____”), an examination of the merits will not, as we shall presently see, support mandamus jurisdiction.

UMTA next argues that no federal question or “arising under” jurisdiction, 28 U.S.C. § 1331 (1982), has been established here. UMTA’s argument rests in large part on two cases from other circuits, Hines v. Cenla Community Action Committee, Inc., 474 F.2d 1052 (5th Cir.1973), and Lindy v. Lynn, 501 F.2d 1367 (3d Cir.1974).² Despite these cases, UMTA’s argument fails, for it takes into account only statutory law, whereas this circuit, consistent with Supreme Court teaching,³ has found section 1331 jurisdiction to lie in an action arising under federal common law. In Trans-Bay Engineers & Builders, Inc. v. Hills, 551 F.2d 370 (D.C.Cir.1976), the court was

asked to determine whether the Secretary of HUD ha[d] an obligation to plaintiff Trans-Bay that [was] not rooted in a contract between them, but rather on equitable rights generated by HUD’s course of activities pursuant to federal statutes, including the contracts it has sponsored, and prescribed for others, as a condition of federal aid. The claim of right [was] dependent on federal common law.

Id. at 377. Such a claim was held to establish section 1331 jurisdiction. Since this sort of claim is made in this case, and is in fact the only reasonable basis for the relief sought, we conclude that federal question jurisdiction indeed exists here.

Ill

We come now to the only substantive issue raised by Grumman on appeal— whether UMTA has a duty to provide the forum and procedure requested by Grumman, by virtue of UMTA’s required inclusion of the Disputes Clause in the RTA-Grumman contract and Grumman’s reading of that clause.⁴ In making this determination, we must keep in mind the relationships between the three entities involved. As we have seen, UMTA and RTA are parties to a grant contract providing federal funds to finance RTA’s purchase of buses for service to the citizenry of Chicago. Had a dispute arisen under the UMTA-RTA grant contract, UMTA would plainly be bound by the terms of that contract. However, the Disputes Clause in which Grumman would discern UMTA’s duty is not, of course, to be found in the contract to which UMTA itself is a party. That clause is, rather, part of the RTA-Grumman procurement contract to which UMTA was not and is not a party. Under any contract law theory, therefore, UMTA has no obligation to Grumman.⁵ Thus, UMTA’s obligation to provide full-blown adjudicatory procedures to Grumman must be found in some other source.

A

No statute to which we have been referred imposes any such obligation. No agency practice or procedure of UMTA for resolving common-law contract disputes has been cited to us.⁶ Nor are there any formally promulgated regulations that obligate UMTA to provide Grumman and RTA a full-blown arbitral forum. The only pertinent regulations are those requiring grantees, such as RTA, to adhere to the White Book in negotiating procurement contracts with bus manufacturers. See 42 Fed.Reg. 13,816 (1977). Those regulations plainly require inclusion of the Disputes Clause in any procurement contract; however, upon careful reading, the regulations do not in any explicit terms impose any duty on UMTA to provide a forum for a contract dispute in which UMTA has no real interest. That is, while the regulations clearly require RTA and Grumman to submit a contract dispute to UMTA for resolution, the regulations do not explicitly require UMTA to accept the task of resolving that dispute by way of a full, adjudicatory-style arbitration. As we read the Disputes Clause, it is entirely consistent with the language of the clause for UMTA not to afford a full-blown arbitral forum for a garden-variety, non-federal dispute.

The dissent argues with some force that the White Book, including the Disputes Clause, was adopted by UMTA only after formal procedures and thus must be binding on UMTA under settled authority. The pivotal question, however, is what that clause means in the context of a federal grant contract. The dissent, not unreasonably, looks to the elaborate body of federal procurement law and finds there a clearly delineated set of procedures, which UMTA has now chosen not to follow. But however reasonable and logical the dissent’s position may be, the bedrock fact remains that in the RTA-Grumman dispute we are worlds apart from the federal procurement setting which gave birth to the clause which is now so hotly debated. Context is critically important in discerning meaning; it simply cannot be gainsaid that the context of federal grant contracts is entirely distinct, being informed by entirely different interests, than a federal procurement contract. See, e.g., Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. §§ 6301 et seq. (1983) (“[Substantial involvement is not expected between the executive agency, and the local government, or other recipient when carrying out the activity contemplated in [a grant] agreement.”) Id. § 6304(2). We are reluctant, in the face of adamant and sensible agency objections to being deeply mired — at great administrative cost — in disputes in which it has no conceivable interest whatever, to import elaborate procedures spawned in one setting and transplant them to alien soil. It has never been done before; indeed, there is not a hint of deviation from settled agency practice; and at bottom, it makes no sense whatever in the real world to force UMTA to preside over battles in which federal interests are minimal at best.

B

We are left then with the question whether UMTA may be bound under some theory of implicit adoption of a regulation or may be equitably estopped to deny the existence of a duty. Grumman invokes cases that, in its view, argue for just that result. In Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), for example, the Supreme Court held that an agency (there, the Bureau of Indian Affairs) may be bound not only by laws and regulations but by its own internal procedures as well. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedure's. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.” Id. at 235, 94 S.Ct. at 1074. The Morton Court, on that basis, held that a policy of the Bureau of Indian Affairs (“BIA”), denying general welfare assistance to Indians not living directly on a reservation, was an important substantive policy which, under the procedures of the Bureau of Indian Affairs Manual, had to be published in order to be effective. Similarly in Danks v. Fields, 696 F.2d 572 (8th Cir.1982), the BIA was found to have failed to comply with the terms set forth in its grazing permits by attempting to initiate a fee increase after the deadline set forth in the permits. BIA’s argument there, namely that the date was merely a goal, was rejected. Since “the [BIA] Area Director set th[e] deadline and made it an explicit term of each permit he issued[, the BIA was] not ... free to ignore the[ ] terms simply because [it] found them to be inconvenient.” Id. at 577.

The difficulty in applying Morton v. Ruiz and Danks v. Fields to our case is that, here, no established procedure, written or otherwise, to provide a forum for disputes such as that between RTA and Grumman was extant at UMTA. While contracts funded under a UMTA grant were required to contain the Disputes Clause, the Disputes Clause does not, as we have seen, impose by its terms an obligation on UMTA to provide an arbitral forum; indeed, since UMTA was not a party to the RTA-Grumman procurement contract, we would be hard pressed to explain how such an obligation could arise from the terms of the contract alone. Of course, we have more in our case than the RTA-Grumman purchase contract; there is also the UMTA-RTA grant contract. Nonetheless, while the UMTA-RTA grant contract requires inclusion of the Disputes Clause, Grumman has cited no language in the grant contract clearly indicating a self-imposed duty on UMTA to provide a forum for common-law disputes.

In fact, language in both the grant contract and the White Book itself indicates that UMTA was not obligated in any fashion to third parties such as Grumman. As we have seen, supra pages 6-7, UMTA quoted the following provision of the UMTA-RTA grant contract in its letter explaining the procedures it intended to follow:

“No Government Obligations to Third Parties. The Government shall not be subject to any obligations or liabilities by contractors of the Recipient or their subcontractors or any other person not a party to this Agreement in connection with the performance of this Project without its express, written consent and notwithstanding its concurrence in or approval of the award of any contract or subcontract or the solicitation thereof.”

Joint Appendix at 79 (quoting UMTA-RTA grant contract). Furthermore, the White Book’s statement requiring the Disputes Clause to be included in procurement contracts makes explicit reference to the External Operating Manual. See White Book at 1-15, Joint Appendix at 339 (“The Contractor shall comply with the following required Urban Mass Transportation Administration clauses, which are located in Appendix 12 of the External Operating Manual.”). The External Operating Manual in turn states:

UMTA and the Federal Government are not obligated or liable to any person or organization other than the project sponsor.

The grantee is the responsible party, without recourse to UMTA regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into, in support of a grant. This includes but is not limited to: disputes, claims, protests of award, source evaluation or other matters of a contractual nature.

External Operating Manual IIIC-1, reprinted in Joint Appendix at 243, 247. While this language might be read in limited fashion so as to shield UMTA and the Government only from liability arising from grantees’ breaches of contract or torts, the language certainly calls into question the basis of any purported obligation on UMTA’s part. Where the basis for the applicability of Morton v. Ruiz and Dank v. Fields (i.e., that UMTA had a duty to provide the forum and procedure requested by Grumman) is so weakly established, the quoted language flatly eschewing any obligation to third parties such as Grumman takes on greater importance.⁷

C

This, however, does not end our inquiry. Underlying portions of Grumman’s brief appears, understandably, to be a plea for equitable estoppel. See Appellant’s Brief at 27-29. While “[i]t is clear that ‘[t]he fundamental principle of equitable estoppel applies to government agencies, as well as private parties,’ ” General Accounting Office v. General Accounting Office Personnel Appeals Board, 698 F.2d 516, 526 n. 57 (D.C.Cir.1983) (quoting Investors Research Corp. v. Securities & Exchange Comm’n, 628 F.2d 168, 174 n. 34 (D.C.Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 317, 66 L.Ed.2d 146 (1980)), “traditionally there has been a reluctance to apply the doctrine against the government,” id. (citations omitted).

The Supreme Court cases considering the application of that doctrine leave the specific standards for its application not precisely clear. In its most recent teaching on the subject, the Court declined to embrace the proposition “that estoppel may not in any circumstances run against the Government” but found that the party in the case before it had in any event failed to demonstrate “the traditional elements of an estoppel.” Heckler v. Community Health Services, 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). In Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981), the Court refused to hold the Government estopped from denying Social Security benefits to an individual who, by virtue of erroneous statements by a field representative, had failed to apply for benefits. The Court pointed to a lack of affirmative misconduct by Government authorities, but also relied on its unwillingness to burden the public fisc, as well as its conclusion that the claimant could have remedied the effects of the erroneous advice at any time. The decision did not make clear whether anything short of affirmative misconduct would justify application of the equitable-estoppel doctrine. See General Accounting Office, supra, 698 F.2d at 526 n. 57. An indication that affirmative misconduct is in fact required might be found in Immigration & Naturalization Service v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 71 L.Ed.2d 12 (1982), where the application of equitable estoppel was disallowed at least partially on the basis that no affirmative misconduct had occurred; again, however, the conclusion to be drawn in this respect is not crystal clear.

In any event, this circuit has clearly concluded that “[ejstoppel generally requires that government agents engage — by commission or omission — in conduct that can be characterized as misrepresentation or concealment, or, at least, behave in ways that have or will cause an egregiously unfair result.” General Accounting Office, supra, 698 F.2d at 526 (footnote omitted). The situation before us meets neither of these two standards.⁸

In the first place, there appears to have been no actual misrepresentation or concealment here. We have already seen that no definitive statement was made by UMTA as to the right of contractors such as Grumman to the forum and procedure which Grumman requested. What we find, rather, is simply the rather odd judgment of UMTA in selecting a Disputes Clause more suitable for federal procurement contracts for inclusion in the procurement contracts of its non-federal grantees.⁹ The dissent, however, observes that UMTA affirmatively assured concerned bus manufacturers in 1977 that the Disputes Clause provided ample protection to them and was “based on procedures for handling disputes in Federal Government contracts.” Joint Appendix at 356. This one-sentence, shorthand response set forth in a twelve-page UMTA statement of rationale is clearly helpful to Grumman’s position, but we are unpersuaded that this abbreviated statement provides a sufficient foundation upon which to force UMTA to build an elaborate dispute-resolution center to which bus manufacturers could repair to avoid local courthouses and juries (or extrajudicial forums, which Grumman may well be able to seek under the RTA-Grumman contract in the Illinois litigation). Our reluctance is buttressed by the fact that UMTA has never sat in judgment on such “local” disputes; moreover, UMTA’s interpretation of the Disputes Clause is entirely sensible in the context of federal grants.

Second, the only “egregiously unfair result” to which Grumman can point is that it relied on UMTA’s availability as an arbitral forum and was led not to bargain with RTA for an alternative arbitration clause. Thus, Grumman fears that it must face a court trial in Chicago on .RTA’s claims. That point is entirely understandable but, upon analysis, not well taken. If Grumman believes that it can show, as it well may, that the parties to the RTA-Grumman contract intended that all disputes go to arbitration, then that position can be advanced in federal district court in Chicago. The RTA-Grumman dispute is, of course, the subject of the Illinois litigation, not the litigation here in Washington, and this argument could therefore be made — with considerable force it seems to us — in that forum.¹⁰

It is not for us to order the selection of an alternative arbitrator in the RTA-Grumman dispute, now that UMTA has declined to provide a full dress extrajudicial forum for resolution of RTA’s dispute with Grumman. Our sole consideration, rather, is the determination of whether UMTA may be forced to fill that role. On that question, we conclude that UMTA, while having pursued a rather curious course of action in requiring inclusion of this particular Disputes Clause in a grantee’s procurement contract,¹¹ is under no duty to provide an arbitral forum nor to provide any particular set of procedures for resolution of a contract to which UMTA is not a party.¹² For that reason, the judgment of the United States District Court for the District of Columbia is

Affirmed.

1 . This question was first squarely raised on this appeal. It was not briefed by the parties below, nor did the District Court address the issue. See TJMTA’s Brief at 13 n. 4.

2 . In Hines the sole theory supporting federal question jurisdiction appears to have been that the contract under which plaintiff was employed was funded and brought about by the Economic Opportunity Act. The court held there that the action did not arise under a federal statute, because the Economic Opportunity Act "was not an ingredient of the plaintiffs claim; for the Act provided simply the impetus for the contract upon which the suit was brought." 474 F.2d at 1056. Hines has some bearing here, since the Urban Mass Transportation Act also provides the impetus for the contract under which this suit was brought. While UMTA is more directly involved in the issue in this case than was the agency in Hines, that involvement stems from UMTA’s insistence that Grumman and RTA incorporate the Disputes Clause in their contract. Nonetheless, if the issue is based on the interpretation of the contract, Hines might be read to suggest that the issue does not “arise under” the Constitution, laws and treaties of the United States.

In Lindy v. Lynn, supra, it was also claimed that section 1331 jurisdiction would lie where the action arose under a mortgage loan regulated by the Federal Housing Administration. The Third Circuit held that jurisdiction was lacking, stating: ”[T]he fact that a contract is subject to federal regulation does not, in itself, demonstrate that Congress meant that all aspects of its performance or nonperformance are to be governed by federal law____" 501 F.2d at 1369. This case likewise lends support to UMTA's argument that section 1331 jurisdiction is lacking.

3 . See Illinois v. Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 1391, 31 L.Ed.2d 712 (1972) (“§ 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.’’).

4 . RTA invites us also to consider whether the dispute between RTA and Grumman is, in fact, within the scope of the Disputes Clause. That question has, of course, been resolved, at least between RTA and Grumman, in the Illinois litigation. See Regional Transportation Authority v. Grumman Flxible Corp., supra. While there may be some question as to whether that holding would be binding in litigation between UMTA and Grumman (where RTA’s status is only that of an intervenor), under the analysis that follows we need not and do not reach this question.

5 . Although Grumman has not advanced the theory, it might be argued that Grumman is a third-party beneficiary of the Disputes Clause requirement found in the UMTA-RTA grant contract and thus may enforce its rights under that contract. Any such argument, however, would be destined to fail. Not only has no clear statement of the purported UMTA obligation been presented, but Grumman would be, at best, only an incidental beneficiary of the UMTA-RTA contract.

6 . Thus, we are not confronted with an agency’s departure from an established practice or procedure, much less an unexplained departure.

7 . Even were we to have found the implicit adoption of a regulation requiring UMTA to hear certain disputes, UMTA would have been entitled to great deference in interpreting that regulation. See United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977); Udall v. Tallman, 380 U.S. 1, 17-18, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 1 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). UMTA’s professed non-interest in state common law issues, as opposed to its strong interest in the consistent interpretation of its own technical specifications, would provide a reasonable basis for its interpretation of the regulation as not including the RTA-Grumman dispute.

8 . Since we conclude that UMTA's conduct does not meet the minimal level required under General Accounting Office, we need not determine whether the Supreme Court cases require the higher-level finding of affirmative misconduct.

9 . While inartfully worded for the specific purposes UMTA was seeking to achieve, the Disputes Clause did, of course, provide UMTA some benefit. The clause’s operation here, for example, brought the specifics of a significant claim by a large grantee to UMTA’s attention and provided the agency with the option to hear and resolve the claim.

10 . Given the substantial divergence in views expressed by the federal district courts here and in Illinois, we discuss briefly the interplay of those two decisions in order to cut through what has become a confusing litigation thicket. As to the decision of the U.S. District Court for the District of Columbia, reprinted in Joint Appendix at 533, the conclusion reached is correct, but the analysis, we believe, starts off in the wrong direction. The court treats the question before it as one of contract interpretation and accordingly looks to the intent of the parties. The court notes that the language of the Disputes Clause is that of a government procurement contract. In such a contract, given the holding of the District Court for the Northern District of Illinois that the dispute is within the scope of the Disputes Clause, UMTA would have a duty to arbitrate. The D.C. court opinion concludes, however, that to carry procurement contract procedures over to grant contracts would produce anomalous results, and that the procedures offered by UMTA were reasonable given UMTA’s limited interest in grantee-vendor contract disputes.

The D.C. court opinion does not articulate what seems to us to be an important distinction. If the dispute actually arose in the context of a grant contract (that is, the contract between UMTA and RTA), UMTA would, it seems, be bound by the interpretation given the clause in a procurement contract. Here, however, the clause does not appear in a grant contract, but only in a contract funded through a grant. The key distinction is between procurement contracts, in which the Government is a party, and contracts funded under grants, in which the Government is not a party at all. Since UMTA is not a party to the contract in which the Disputes Clause is included, the exercise for the court here in Washington was not, upon analysis, one of contract interpretation but rather one of searching for a duty vel non outside the contract. While the D.C. court opinion does not set out on such a search, we nonetheless agree with that court's ultimate conclusion, since such a duty, for the reasons we have set forth in the text, is not to be found.

The Illinois court’s January 18, 1985 Memorandum Opinion characterizes the D.C. court's approach as "puzzling.” The Illinois court notes the D.C. court determination that the issue is one of contract interpretation and finds confusing the D.C. court's resort to the intent of the reluctant arbitrator rather than to the intent of the parties to the contract. While this point does have force, for the reasons we have just stated, we also believe that the Illinois court's opinion loses sight of the difference between the proceedings in the two courts.

The Illinois court is, of course, hearing a contract dispute between the parties to the contract. In that case, the intent of the parties obviously controls. The Illinois court has already found that the parties’ intent was to submit disputes within the scope of the Disputes Clause to UMTA for decision and, on that basis, found a failure to exhaust administrative remedies. The scene then shifted to the D.C. court where the court here was not, in reality, interpreting a contract. It should have been, instead, trying to determine the existence vel non of a duty on the part of a non-party (UMTA) to arbitrate the dispute. The intent of the parties to the contract has little relevance to that question, unless equitable grounds may arise from such an intent. In a word, in the case before the D.C. court, the intent of UMTA has more, though still not controlling, relevance.

In the end, the D.C. court’s opinion does not in any way contradict the earlier opinion of the Illinois court. Under the law of that case, the parties did intend to submit this very dispute to UMTA, and they had thus failed to exhaust administrative remedies. In the wake of that ruling in Chicago the parties submitted the dispute, but UMTA refused to grant the full procedures called for by the Disputes Clause in a procurement setting. The parties have now exhausted their administrative remedies, and the dispute is appropriately back before the Illinois court.

11 . To achieve its purposes, while giving clearer notice to the parties, UMTA plainly should have modified the wording of the standard-form Disputes Clause so as to incorporate expressly the agency’s right of refusal to resolve with finality a contract dispute which did not involve "the interpretation and effectiveness of the White Book Specification." Joint Appendix at 78A-79A.

12 . Clearly, the less formal procedure afforded by UMTA would provide grounds for contesting any claim that the determination is final and conclusive. But, as we have seen, UMTA did not claim any such finality or conclusiveness for its decision, a position with which the United States District Court for the District of Columbia agreed. See Memorandum of July 13, 1984, reprinted in Joint Appendix at 533. This position of nonfinality seems also to have been adopted by the district court in the Illinois litigation. See Memorandum Opinion and Order of January 18, 1985 at 15.