United States District Court, Northern District of New York
November 25, 1991
SUSAN R. FRASIER, PLAINTIFF,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES AND NATIONAL ENDOWMENT FOR THE ARTS, DEFENDANTS.
The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
This action arises from plaintiff's inability to secure
federal funding from the Department of Health and Human
Services ("HHS") and/or the National Endowment for the Arts
("NEA") (collectively, "government") for various projects she
has proposed. Currently before the court are five motions, the
most substantive of which is the government's motion for
summary judgment. For the reasons discussed herein, this court
finds that it does not have subject matter jurisdiction over
the majority of plaintiff's causes of action. For the
remaining claims, plaintiff has failed to state a claim upon
which relief can be granted. Hence, plaintiff's complaint is
dismissed with prejudice. This ruling obviates the need to
rule on the other motions brought before the court.*fn1
Plaintiff Susan R. Frasier is a resident of Schenectady, New
York. She describes herself as a "Vietnam era veteran" who is
enrolled in various public assistance programs. Complaint (1st
Cause of Action) ¶ 5; Plaintiff's Affidavit in Support of
Motion for Separate Trials, at ¶ 2. Due to her unfortunate
financial condition, plaintiff is unable to afford legal
counsel, and hence is proceeding pro se. See id.
Plaintiff was last regularly employed in September, 1988.
According to her complaint, "[p]laintiff has been actively
seeking work opportunities through government grants and
contracting programs since September, 1988, when her regular
employment and career was cut short" by the incidents alleged
in unrelated litigation pending before Northern District Judge
Cholakis. Complaint (1st Cause of Action) ¶ 4. Specifically, in
1989, plaintiff applied to the National Endowment for the Arts
for a "Design Advancement Project" grant through the NEA's
Design Arts Program. Plaintiff sought NEA financing for her
proposed purchase of a $15,000 "computer-assisted design
work-station." Complaint (2d Cause of Action) ¶ 2. She
satisfied all of the program's procedural requirements, thus
allowing her application to be considered in the NEA's
The plaintiff contends that the NEA selection process was
constitutionally and statutorily flawed as applied to her
application. In response, the government has outlined, in
intricate detail, the process that the NEA regularly employs
when considering grant applications such as plaintiff's.
See Defendant's Memorandum of Law in Support (9/30/91) ("Def.
Mem."), at 6-8. In essence, the review process consists of
three "rounds" of discussion by a panel of experts in ten
different design fields. The panelists spend three days
considering all of the applications, culminating in a
recommendation for funding for one of the proposed projects.
The National Council on Arts reviews the panel's recommendation
and refers its findings to the Chairperson
of the NEA for review. After these three levels of review, the
Chairperson finally decides which application for funding
should be granted. Id. (citing Declaration of Andrea Clark, ¶¶
With respect to plaintiff's proposed project, the program's
panel of experts recommended against funding, and the National
Council on Arts agreed. The Chairperson of the NEA ultimately
adopted the panel's and Council's decision. By letter dated
May 15, 1990, plaintiff was notified that her proposed project
had not been selected for program funding. The government
avers that plaintiff's application was processed along the
ordinary channels; plaintiff has offered no credible evidence
to controvert the government's representation.
In January, 1990, while her application for funding was
pending before the NEA, plaintiff submitted a separate
application to the Department of Health and Human Services,
seeking funding for two new and unrelated proposals. The
source of the funding was the HHS's Small Business Innovation
Research Program ("SBIR Program"), created through the Small
Business Innovation Development Act of 1982, 15 U.S.C. § 638(f),
(g). The review process for SBIR Program applications
is as intricate as that employed by the NEA, following a
schedule determined in cooperation with the government's Small
Business Association. Def. Mem. at 8-9 (citing
15 U.S.C. § 638(g)(2)). The record is unclear as to the substance of
plaintiff's proposal, except that it was submitted by her under
the name of her business, "Strictly Hers Consulting." See Def.
Mem. at 15. Again, the government avers that plaintiff's
application was processed pursuant to the agency's established
policy, see Def. Mem. at 9-11, and once again, in August, 1990,
plaintiff's application was rejected outright. Id. at 16. This
marked the second occasion on which one of plaintiff's
proposals was denied federal funding.
Plaintiff was certainly not alone in her inability to obtain
federal assistance for her proposed projects. For example,
plaintiff's HHS application was one of 146 initially reviewed.
Twenty-seven grant proposals were in the same "topic area" as
one of plaintiff's proposals, twenty-six were in the same area
as plaintiff's other proposal. Def. Mem. at 15-16 (citing
Declaration of Janet S. Hartnett, ¶¶ 4-6). Only one proposal
was selected for funding in each respective area; therefore,
the overwhelming majority of projects were denied funding. See
id. With respect to plaintiff's allegation that the proceeding
was intentionally slanted against her in particular, the court
notes that of the twenty-seven proposals submitted in one of
her topic areas, plaintiff's was ranked in the top half (13 out
of 27). Id.
In the midst of her respective application processes,
plaintiff discovered that HHS also funds a "Community Services
Block Grant Program." Complaint (Third Cause of Action) ¶ 2.
Upon further inquiry, plaintiff learned that the program,
available through the applicant's state (in this case New
York), provided funds only for specialized community action
programs. Plaintiff therefore determined that she was
ineligible for funding thereunder, and did not apply for funds.
Plaintiff now insists that HHS's standards for distributing
grants under this program were "inconsistent, invasive,
prohibitive, and contrary with the funding specification of the
agency, . . . without a uniform technique which prevented from
[sic.] the end result of discrimination," and were negligently
imposed against her. Id. ¶ 5.
Plaintiff brought suit in this court in August, 1990,
stating three causes of action. In the first, plaintiff
contends that HHS's procedure which denied her funding was
unconstitutional and illegal, in violation of at least
thirty-nine different federal statutes and regulations, two
constitutional provisions, and numerous common laws. Complaint
(First Cause of Action) ¶ 10. Her second cause of action
challenges the results of the NEA procedures as they were
applied to her application, on substantially similar grounds.
Complaint (Second Cause of Action) ¶ 4 (again, thirty-nine
violations alleged). The third cause of action challenges HHS's
method for determining Community Services Block Grant Program
awards. Plaintiff seeks total recovery of $233,600.
II. CURRENT MOTIONS
There are now six motions before the court:
(1) By plaintiff, to amend the pretrial
scheduling order and stipulation, pursuant to
(2) By plaintiff, to sever the causes of action
in her complaint, pursuant to Fed.R.Civ.P.
(3) By plaintiff, to amend her complaint,
pursuant to Fed.R.Civ.P. 15(a);
(4) By plaintiff, for judgment on the pleadings;
(5) By defendant, to dismiss plaintiff's first
and third causes of action for failure to
prosecute, pursuant to Fed.R.Civ.P. 41(b);
(6) By defendant, for summary judgment, pursuant
to Fed.R.Civ.P. 56(b).
Plaintiff's first three motions are prompted in large part
by her impoverished financial status and her poor health, both
of which she has taken care to fully delineate for the record.
See, e.g., Plaintiff's Affidavit in Support of Motion for
Separate Trials, at ¶ 2; Letter of Plaintiff to court (August
1, 1991); Plaintiff's Memorandum of Law in Opposition, passim.
Plaintiff asserts that, due to her disadvantaged condition, she
is able to pursue only one cause of action at a time, beginning
with her second cause of action (against NEA). In her own
plaintiff's recent change in financial status
below the poverty line has made it impossible to
comply with the xerox and postage requirements to
process more than one cause of action;
[plaintiff's] recent change in impaired physical
health has made it impossible to endure the
schedule requirements to process more than one
cause of action; and plaintiff's continued
inability to obtain an attorney have all
established a personal hardship overlooked by the
Court [when issuing the scheduling order]. . . .
Plaintiff's Notice of Motion to Amend Pretrial Order, at 2.
Plaintiff therefore moves for the court to (1) amend the
pretrial stipulation and scheduling order so as to relieve her
of the deadlines set forth therein with respect to her first
and third causes of action, and (2) sever her second cause of
action from the others, so that she can proceed with each
Plaintiff's third motion, to amend her complaint, is brought
simply to allow her to make technical modifications, thus
ridding the complaint of professed procedural defects.
Specifically, plaintiff wishes to add "notices of
constitutional claims" to her complaint, presumably to put the
government on notice that she is asserting constitutional
The government, in turn, opposes plaintiff's motion to amend
the scheduling order, and cross moves for dismissal of the
first and third causes of action due to plaintiff's failure to
prosecute those claims. The government also moves for summary
judgment, arguing (1) that the government has not waived its
sovereign immunity with respect to the claims asserted by
plaintiff, (2) the court lacks subject-matter jurisdiction,
and (3) plaintiff has failed to state a constitutional
Before reaching the merits of the current motions, the court
must address some preliminary, procedural matters. First, the
government seeks summary judgment, and not dismissal of
plaintiff's complaint. In so moving, the government invokes
lack of subject-matter jurisdiction (due to sovereign
immunity) and failure to state a claim upon which relief can
be granted as grounds for judgment. The government's motion
would be more appropriately brought under Fed.R.Civ.P. 12(b).
Indeed, since plaintiff's alleged defects are jurisdictional
in nature, this court is obligated
to convert the government's summary judgment motion to a
motion to dismiss plaintiff's complaint pursuant to
Fed.R.Civ.P. 12(b)(1) and (6), and to consider the
government's arguments accordingly. See Boudloche v. Conoco Oil
Corp., 615 F.2d 687, 688-89 (5th Cir. 1980); see also Blum v.
Morgan Guaranty Trust Co., 709 F.2d 1463, 1466 (11th Cir.
Second, this court has an obligation to liberally construe
plaintiff's pro se complaint. E.g. Hughes v. Rowe, 449 U.S. 5,
9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). Pro se litigants
cannot be held to the same high standard of pleading as
experienced and educated litigators. Finding that it would be
patently unfair of the judiciary to slam shut the courthouse
doors on a pro se plaintiff solely because of her lack of legal
experience or knowledge, the Supreme Court and Second Circuit
have instructed courts that pro se complaints, however obscure,
must be held to less stringent standards than formal pleadings
drafted by lawyers. See, e.g., Hughes, 449 U.S. at 9, 101 S.Ct.
at 175; Robles, 725 F.2d at 15. Today's decision to dismiss
plaintiff's complaint is rendered even in light of the
deference afforded to plaintiff's pro se status.
Finally, for the reasons stated herein, this court finds
that dismissal of plaintiff's complaint is warranted. Hence,
consideration of all other motions is obviated; plaintiff's
motions, including those returnable on December 5, 1991, are
denied as moot.
A. Sovereign Immunity
A common thread running through the government's motion to
dismiss is the doctrine of sovereign immunity. As noted above,
plaintiff in the present case is proceeding pro se, and
certainly cannot be assumed to understand, let alone properly
plead, the intricacies of sovereign immunity. To be sure,
plaintiff has expressed her frustration with "the dismissal of
cases from the judiciary on the basis of frivolous, petty and
trivial failures of pro se litigants to deliver the smallest
amount of document detail in due process with complete
disregard for . . . [the] merits of the disadvantaged
plaintiff's case and evidence. . . ." Plaintiff's Notice of
Claim of Unconstitutionally — Second Cause of Action # 3, at
3-A. Given the plaintiff's understandable disillusionment, the
court feels compelled to take a moment to outline the doctrine
of sovereign immunity.
It is axiomatic that "`[t]he United States, as a sovereign,
is immune from suit [unless] it consents to be sued. . . .'"
United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,
1351, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood,
312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)).
Congress can statutorily waive the government's immunity
outright, or condition the waiver upon satisfaction of a
prerequisite. If Congress waives the government's immunity
subject to conditions, then this court is strictly bound to
adhere to the conditions of the waiver. Id.; United States v.
Kubrick, 444 U.S. 111, 118-19, 100 S.Ct. 352, 357-58, 62
L.Ed.2d 259 (1979). In other words, this court cannot
artificially construct a waiver of immunity by ignoring the
limitations set forth by Congress. Block v. North Dakota,
461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983);
Mitchell, 445 U.S. at 538, 100 S.Ct. at 1351 (citing United
States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d
52 (1969)). The Supreme Court most succinctly stated this
principle in Block:
The basic rule of federal sovereign immunity is
that the United States cannot be sued at all
without the consent of Congress. A necessary
corollary of this rule is that when Congress
attaches conditions to legislation waiving the
sovereign immunity of the United States, those
conditions must be strictly observed, and
exceptions thereto are not to be lightly imposed.
461 U.S. at 287, 103 S.Ct. at 1819-20 (citations
With respect to the plaintiff's case, the court is able to
find only three possible instances in which Congress waived
the United States's sovereign immunity for the allegations set
forth in plaintiff's complaint:
1. Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675
(1988 & West Supp. 1991);
2. Administrative Procedure Act ("APA"),
5 U.S.C. § 702 (1988); and
3. 42 U.S.C. § 1983 (1988).
In each instance Congress has attached stringent conditions to
its waiver of immunity. The court will discuss each of these
provisions as they apply to plaintiff's case,
2. Federal Tort Claims Act
In liberally construing plaintiff's complaint, the court can
discern causes of action under the FTCA. Specifically,
plaintiff alleges in all three causes of action that HHS and
NEA standards for processing funding applications were "so
negligent and irresponsible in the bidding guidelines as to
wrongfully inflict civil injury on the plaintiff. . . ."
Complaint at p. 6 ¶ 10; p. 11 ¶ 5; and p. 15 ¶ 5. Since the
FTCA is the exclusive avenue for remedy by parties alleging
federal governmental torts, plaintiff must rely on the express
provisions therein if she hopes to pursue these tort actions.
See 28 U.S.C. § 2678 (West Supp. 1991).
The FTCA sets forth several prerequisites to suits brought
thereunder against the United States. Most significantly (for
purposes of this case), the FTCA mandates that plaintiffs
exhaust administrative remedies with the appropriate
governmental agency before filing a lawsuit against the United
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or
employment, unless claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally
denied by the agency in writing and sent by
certified or registered mail.
28 U.S.C. § 2675(a). The FTCA's administrative exhaustion rule
is a jurisdictional requirement which simply cannot be waived.
Keene Corp. v. United States, 700 F.2d 836
, 841 (2d Cir.),
cert. denied, 464 U.S. 864
, 104 S.Ct. 195
, 78 L.Ed.2d 171
Plaintiff here has not satisfied the FTCA's administrative
exhaustion prerequisite for filing suit against the United
States. Indeed, as the government properly observed, plaintiff
conceded her failure in a January 28, 1991 letter to the
court, in which she insisted that due to her "extreme hardship
and exceptional circumstance, and the fact that so many
agencies were included within the breach of statutory duty
allegation, it was not practical in this case to expect me to
perform an administrative complaint filing with each and every
department cited." Letter from Susan Frasier to Court (Jan.
This court does not doubt that plaintiff has endured
hardship and circumstance. Plaintiff's failure to exhaust the
administrative avenues for redress nonetheless defies the
conditions set forth by Congress when it waived its sovereign
immunity for tort suits. Plaintiff's argument that she is
excused from the administrative exhaustion requirement in that
she brought this suit under an exempt section of the FTCA is
without merit. The exhaustion requirement applies to the
entire FTCA, i.e. all suits brought thereunder, and not just to
actions brought under select provisions. See § 2675(a) ("an
action shall not be instituted . . ."; no differentiation
In the past, the Second Circuit has mandated that courts
dismiss FTCA cases similar to the present. Adams v. United
States, 807 F.2d 318, 320 (2d Cir. 1986); Keene Corp., 700 F.2d
at 841; see also O'Rouke v. Eastern Air Lines, Inc.,
730 F.2d 842, 855 (2d Cir. 1984). Even considering plaintiff's
obstacles, the doctrine of sovereign immunity prohibits this
court from adjudicating over plaintiff's tort claims. This
court, in short, may not "take it upon [itself] to extend a
waiver beyond that which Congress intended." Kubrick, 444 U.S.
at 118-19, 100 S.Ct. at 357-58. Accordingly, plaintiff's
failure to satisfy the FTCA's administrative exhaustion before
filing this suit requires this court to dismiss any claims that
plaintiff might have under the FTCA.
3. Administrative Procedure Act
Plaintiff alleges in large part that she was denied federal
funding due to HHS's and NEA's improper decision making and
faulty procedures. Plaintiff specifically asserts that
the methods and procedure used by the [respective
agencies] in the processing of her contract
application was arbitrary and without educated
legal rationale or basis, was laced with
deceptive business practices including
manufactured or falsified documents in the
handling of contract bidding information, was
inconsistent with the funding specification of
the agency, was without uniform technique that
prevented from the end result of discrimination.
Complaint at p. 6 ¶ 10; p. 11 ¶ 5; p. 15 ¶ 5.
Through the APA, Congress waived the government's immunity
from judicial review when sought by "a person suffering legal
wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute. . . ." 5 U.S.C. § 702; Webster v. Doe, 486 U.S. 592,
108 S.Ct. 2047, 2051, 100 L.Ed.2d 632 (1988). Since plaintiff
alleges that she was aggrieved by the defendant agencies'
actions, the APA provides the appropriate avenue for redress.
See 5 U.S.C. § 702, 704. As under the FTCA, however,
Congress's waiver of sovereign immunity for actions brought
under the APA is conditioned. Congress explicitly retained
immunity with respect to agency actions that are committed to
agency discretion. 5 U.S.C. § 701(a)(2). The applicable statute
This chapter [allowing judicial review]
applies, according to the provisions thereof,
except to the extent that —
(2) agency action is committed to agency
discretion by law.
An agency action "is committed to agency discretion by law"
when the agency's enabling statute provides no standard for
the agency to follow when awarding funds. To that end,
judicial review "is not to be had if the statute is drawn so
that a court would have no meaningful standard against which
to judge the agency's exercise of discretion." Heckler v.
Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714
(1985); accord Webster, 108 S.Ct. at 2052. But see Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91
S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) ("rare" instances in
which there is no law to apply).*fn4 Congress retained
immunity for those actions committed to agency discretion
because, in large part, agency decision-making often involves
"a complicated balancing of a number of factors which are
peculiarly within [the
agency's] expertise." Chaney, 470 U.S. at 831, 105 S.Ct. at
1655. As the Third Circuit noted, "it would appear unseemly in
such circumstances for a court to substitute its judgment for
that of an executive or agency official." Local 2855, AFGE
(AFL-CIO) v. United States, 602 F.2d 574, 579 (3d Cir. 1979).
In the present case, this court must examine the enabling
statutes of both the NEA and HHS programs under which
plaintiff applied for funding, to determine whether the agency
determinations made pursuant thereto are "committed to the
agenc[ies'] discretion," see § 701(a)(2), and thus beyond the
reach of this court's power to review.
a. Discretion under the NEA
The enabling legislation for NEA funding is found at
20 U.S.C. § 954 (1988 & West Supp. 1991) ("National Endowment for
the Arts"). That section, governing the program of contracts,
grants-in-aid, and loans to groups and individuals for projects
and productions, is replete with language indicating Congress's
intent to delegate vast discretion to the Chairperson of the
NEA in awarding grants. See id. The guidelines which the
Chairperson must consider when awarding funds are so broad and
standardless that this court has no basis for reviewing the
Chairperson's actions for compliance.
Section 954(d) requires that the Chairperson to review
applications for funds in accordance with established
regulations. Significantly, the Chairperson has the duty to
promulgate those regulations. The only conceivable guidance
provided by the statute concerning standards the Chairperson
must follow states:
In establishing such regulations and procedures,
the Chairperson shall ensure that —
(1) artistic excellence and artistic merit are
the criteria by which applications are judged,
taking into consideration general standards of
decency and respect for the diverse beliefs and
values of the American public; and
(2) applications are consistent with the
purposes of this section. Such regulations and
procedures shall clearly indicate that
obscenity is without artistic merit, is not
protected speech, and shall not be funded.
Projects, productions, workshops, and programs
that are determined to be obscene are
prohibited from receiving financial assistance
under this subchapter from the National
Endowment for the Arts.
20 U.S.C. § 954(d) (West Supp. 1991).
Even in imposing these requirements, Congress left mostly to
the discretion of the Chairperson the determination of what
constitutes "art excellence," "artistic merit," and "general
standards of decency." See id. (except for obscene materials,
which are not at issue in this case). The statute, as drawn in
this manner, leaves the court with "no meaningful standard
against which to judge the agency's exercise of discretion."
Chaney, 470 U.S. at 830, 105 S.Ct. at 1655; Webster, 108 S.Ct.
at 2052. This court cannot — and will not — second-guess the
NEA's conclusions concerning "art excellence" and "artistic
merit"; such judgments are clearly left to the agency's
discretion and therefore are not reviewable.
Of course, the statute lists some criteria that the agency
must consider when considering applications, see § 954(c), but
that alone does not remove the agency's discretion for §
701(a)(2) purposes. Strickland v. Morton, 519 F.2d 467, 469
(9th Cir. 1975). In any event, as the government has correctly
observed, any restraint on the agency's discretion serves to
limit the works that NEA may fund; the statute is flatly devoid
of any criterion affecting the agency's authority to refuse
funding. See Def. Mem. at 30.
Plaintiff has suggested no viable grounds under which this
court has authority to review the NEA's decision to refuse her
funding. Since Congress drafted §§ 954(c) and (d) "in such
broad terms that there is no law to apply," Volpe, 401 U.S. at
410, 91 S.Ct. at 821 (quoting S.Rep. No. 752, 79th Cong., 1st
Sess. 26 (1945)), this court is without authority to review the
NEA decisions in this case. Hence, this
court must dismiss plaintiff's second cause of action as
brought under the APA, for lack of subject-matter
The court notes that plaintiff has produced not a shred of
credible evidence to support her insinuation that the NEA
process was specifically and improperly applied to defeat her
application; thus, she would be unable to withstand the
government's motion for summary judgment, as well. See Anderson
v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986) ("a party opposing a properly supported
motion for summary judgment `may not rest upon the mere
allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for
trial.'"); Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106
S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986).
b. Discretion under the Small Business Innovation
The court reaches the same conclusion with respect to
plaintiff's unsuccessful application for HHS funding. The
statute under which plaintiff sought funding, the Small
Business Innovation Development Act, is also couched in terms
which require this court to refrain from reviewing HHS's
decisions rendered thereunder.
The government informs that court, and plaintiff does not
contend otherwise, that the enabling statute is codified at
15 U.S.C. § 638 (1988 & West Supp. 1991) ("Research and
development"). That statute states generally that the
administering agency is actually the Small Business
Administration, and that "it shall be the duty of the
Administration, and it shall be empowered," to assist
small-business concerns in various ventures. § 638(b) (West
Supp. 1991). Without spelling out a line-by-line analysis of
the statute in question, the court finds that the only mention
therein of criteria which an agency must follow in awarding
funds appears in § 638(b). Section 638(b) limits funding to
projects serving certain purposes, but the purposes are stated
in terms so amorphous and subjective that this court is obliged
to refrain from reviewing agency decisions rendered thereunder.
In other words, even with § 638(b), the Administration still
has considerable license to award or deny funding requests. The
court can discern no further standards in the statute which
would guide the court in determining whether the purposes are
satisfied. See generally § 638. Plaintiff has once again
suggested no authority indicating that this court is in a
position to substitute its judgment for that of the agency
awarding funds. Since "review is not to be had if the statute
is drawn so that a court would have no meaningful standard
against which to judge the agency's exercise of discretion,"
Chaney, 470 U.S. at 830, 105 S.Ct. at 1655, and the Act
implicated by the plaintiff simply gives the court no
meaningful standard against which to so adjudicate, this court
cannot review HHS's exercise of discretion in this case.
5 U.S.C. § 701(a)(2). For the court to ignore Congress's "agency
discretion" condition to its waiver of sovereign immunity under
the APA would constitute an unconstitutional infringement on
the federal government's right to be free from suit. See,
e.g., Mitchell, 445 U.S. at 538, 100 S.Ct. at 1351 (quoting
Sherwood, 312 U.S. at 586, 61 S.Ct. at 769).
B. Constitutional Claims
Plaintiff next alleges that the NEA and HHS selection
procedures violated her guarantee of due process under the
fourteenth amendment of the United States Constitution. In
response, the government properly notes that invocation of the
fourteenth amendment is limited to actions against
state government, and therefore plaintiff's claims against
these federal agencies are not cognizable thereunder. The
government then asserts that "plaintiff's constitutional claims
against defendants may be brought, if at all, under the fifth
amendment." Def. Mem. at 37. This court finds that even if
plaintiff could sue the federal government directly under the
fifth amendment — a point which is less than entirely clear —
her suit should nonetheless be dismissed for failure to state a
claim upon which relief can be granted.
A claim of deprivation of due process cannot stand unless
a right, or interest, which is entitled to due process
protection in the first place. E.g., Kentucky Dep't of
Corrections v. Thompson, 490 U.S. 454, 459, 109 S.Ct. 1904,
1907, 104 L.Ed.2d 506 (1989); Connecticut Bd. of Pardons v.
Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 2463, 69 L.Ed.2d
158 (1981). Although she alleges many different acts which
injured her, e.g. only people with fancy addresses received
grants, all of her claims here stem from a common legal event,
to wit the agencies' refusal to provide funding for her
projects. Hence, the only possible interest this court can
discern from plaintiff's complaint is her professed interest in
receiving federal funding for her proposed projects.
Plaintiff's desire for funding, without more, does not rise
to the level of a constitutionally protected interest. This is
[t]o have a property interest in a benefit, a
person clearly must have more than an abstract
need or desire for it. He must have more than a
unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.
Board of Regents v. Roth, 408 U.S. 564
, 577, 92 S.Ct. 2701,
2709, 33 L.Ed.2d 548 (1972). See also Kelly Kare, Ltd. v.
O'Rourke, 930 F.2d 170, 175 (2d Cir.), cert. denied, ___ U.S.
___, 112 S.Ct. 300
, 116 L.Ed.2d 224 (1991). Determination of
whether plaintiff has a "legitimate claim of entitlement" to
NEA and/or HHS funding depends upon whether such an entitlement
is affirmatively created by law, rule, or other source
independent of the due process clause. Roth, 408 U.S. at 577,
92 S.Ct. at 2709; R.R. Village Ass'n v. Denver Sewer Corp.,
826 F.2d 1197
, 1201 (2d Cir. 1987). This court must therefore once
again examine the laws implicated in the present case, i.e. the
NEA and the Small Business Innovation Development Act, to
determine whether either creates in the plaintiff an
entitlement to funds granted thereunder.
As discussed extensively above, both programs are operated
at the discretion of the respective agencies. See discussion of
NEA discretion, supra p. 220; HHS discretion, supra p. 221. The
existence of agency discretion thwarts plaintiff's claim of an
entitlement cognizable under the due process clause because, as
the Second Circuit recently recognized, when a statute vests
discretion in the government over the continued conferral of a
benefit, "it will be the rare case that the recipient will be
able to establish an entitlement to the benefit." Kelly Kare,
930 F.2d at 175 (citing, e.g., Plaza Health Laboratories, Inc.
v. Perales, 878 F.2d 577, 581 (2d Cir. 1989)). To that end,
when an agency such as NEA or HHS is delegated such latitude to
determine its course of action, an individual cannot rationally
argue that she holds a constitutional right to compel the
agency to act in a specific manner. See Dumschat, 452 U.S. at
466, 101 S.Ct. at 2465; see also Advocates for the Arts v.
Thomson, 532 F.2d 792, 797 (1st Cir.), cert. denied,
429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976) (no entitlement to
funds for arts).
In light of the broad discretion afforded to NEA and HHS
under their respective enabling acts, this court is not
prepared to hold that plaintiff is constitutionally entitled
to have either agency fund her projects. Hence, plaintiff has
failed to state a cognizable interest which would entitle her
to due process protection. The court reiterates that
plaintiff's case is devoid of a single, credible piece of
evidence suggesting that the procedures employed by the
agencies in considering her applications were anything short
of ordinary and constitutional.*fn5 Accordingly, the court
dismisses plaintiff's complaint to the extent that it entails
claims of deprivation of a right to due process.
Plaintiff has boldly asserted that the defendant agencies'
actions also violated her rights secured under the equal
protection clause. Plaintiff has provided no cogent argument
to support that claim. Even upon reviewing her complaint with
deference to her pro se status, this court cannot fathom how
plaintiff could prevail on such an argument. Plaintiff's equal
protection claims are therefore dismissed.
C. Plaintiff's Third Cause of Action
Plaintiff alleges in her third cause of action that she did
not apply for funding under HHS's Community Grant Program
because the standards for distributing grants thereunder were
"inconsistent, invasive, prohibitive, and contrary [to] the
funding specification of the agency, . . . without a uniform
technique which prevented from the end result of
discrimination," and were negligently imposed against her.
Complaint ¶ 5. In attesting that she never applied for funds
under the program, however, plaintiff dealt a fatal blow to her
cause of action. This is because a person cannot bring suit
solely on the grounds that she disagrees with a statute or a
regulation enacted thereunder. A plaintiff must be personally
and adversely affected by an alleged event in order to have
standing to bring a lawsuit in federal court. E.g. Sierra Club
v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d
Because plaintiff's lack of standing marks such an
elementary principle of constitutional law, this court will
not belabor discussion of this issue. Since plaintiff never
applied for funding under the program, and therefore has not
been denied funding thereunder, she has not yet
personally suffered an injury which this court can redress.
Hence, plaintiff has no standing to pursue her third cause of
action. The cases cited by the government are completely
dispositive of this point. See Def. Mem. at 47-78 (citing
Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975); Sierra Club, 405 U.S. 727, 92
S.Ct. 1361, 31 L.Ed.2d 636 (1972); Jenkins v. McKeithen,
395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969)). Plaintiff's
third cause of action is dismissed for want of standing.
Congress has not waived the federal government's sovereign
immunity from suits such as that brought by plaintiff in her
first two causes of action. Hence, this court does not have
jurisdiction to adjudicate over plaintiff's first two causes
of action. To the extent that plaintiff has alleged
constitutional deprivations therein, she has failed to state
a claim upon which relief can be granted. Accordingly,
plaintiff's causes of action numbered one and two are
dismissed with prejudice.
Plaintiff does not have standing to assert her third cause
of action. It, too, is therefore dismissed with prejudice.
Today's ruling obviates the need to address the remaining
motions before the court. This includes plaintiff's motions
which are scheduled for oral argument on December 4, 1991.
Plaintiff's remaining motions, including those set for
December 4, are dismissed as moot.