                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

NATIONAL LAW CENTER ON                    )
HOMELESSNESS AND POVERTY, et al.,         )
                                          )
            Plaintiffs,                   )
                                          )
v.                                        )                             No. 88-cv-2503 (RCL)
                                          )
UNITED STATES DEPARTMENT                  )
OF VETERANS AFFAIRS, et al.,              )
                                          )
            Defendants.                   )
_________________________________________ )

                                 MEMORANDUM AND ORDER

        Before the Court are the Parties’ Joint Motion [580] for a Scheduling Order, plaintiffs’

Motion [586] to Compel Discovery, and defendants’ Motion [589] for a Protective Order.

Having carefully considered the motions, oppositions, replies, the entire record in this case, and

the applicable law, the Court will grant in part and deny in part plaintiffs’ Motion [586] to

Compel Discovery, deny defendants’ Motion [589] for a Protective Order, and deny the Parties’

Joint Motion [580] for a Scheduling Order as moot.

I.      BACKGROUND

        This is an old case, inherited by this Court from the Honorable Oliver Gasch in February

2000. As described in an early opinion of this Court, plaintiffs claimed, in 1988, that various

agencies 1 had failed to live up to their obligations under the Stewart B. McKinney Homeless

Assistance Act, 42 U.S.C. § 11301 et seq., whose aim is to transform surplus government

property into facilities for the homeless. Nat’l Law Ctr. on Homelessness & Poverty v. U.S.


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  Defendants are the Veterans Administration (“VA”), the VA’s Administrator, the Department of Defense
(“DOD”), the Secretary of DOD, the Department of Housing and Urban Development (“HUD”), HUD’s Secretary,
the General Services Administration (“GSA”), GSA’s Administrator, the District of Columbia Department of
Human Services (“DC DHS”), and DC DHS’s Secretary.
Veterans Admin., 98 F. Supp. 2d 25, 26 (D.D.C. 2000). In December 1988, Judge Gasch granted

summary judgment and permanent injunctive relief for plaintiffs, requiring defendants to conduct

more extensive “canvassing” of federal properties, to publish lists of suitable properties, and to

establish outreach programs for disposing of such properties. See id. On several occasions, both

Judge Gasch and this Court have issued further orders enforcing the permanent injunction. See

id.; Nat’l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin., 819 F. Supp. 69

(D.D.C. 1993); Nat’l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin., 765 F.

Supp. 1, 13 (D.D.C. 1991). This Court noted, in its first opinion addressing the continued

enforcement of the permanent injunction, that a court’s power to enforce its own injunctions is

broad, particularly where—as here—the enjoined party has, in the past, failed to fully comply

with the court’s earlier orders. See Nat’l Law Ctr., 98 F. Supp. 2d at 26–27 (citing Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) and Hutto v. Finley, 437 U.S. 678,

687 (1978)).

       In June 2011, defendants moved this Court, pursuant to Federal Rule of Civil Procedure

60(b)(5), to vacate Judge Gasch’s 1993 Order, which modified and furthered the enforcement of

the permanent injunction. Defs.’ Mot. Vacate [568-1] 5, June 22, 2011 (referring to Order [331]

Apr. 21, 1993; see also Nat’l Law Ctr., 819 F. Supp. at 77). Defendants contend that the 1993

Order is “no longer equitable” because “its objectives have been achieved” and because of

“changes in the law and in circumstances.” Defs.’ Mot. Vacate [568-1] 1, 6. Defendants allege

that they have “consistently complied with the Court’s Order” and aver that they have an

“unassailable track record.” Id. 7–8. Apart from these representations, defendants’ motion

contains no evidence supporting their claim that changed circumstances warrant this Court’s

exercise of its equitable powers to dissolve the longstanding injunction.



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       In September 2011, plaintiffs filed an unopposed motion seeking additional time to

respond to defendants’ motion to vacate the 1993 Order. Pls.’ Mot. Extension [577] Sept. 26,

2011. Plaintiffs indicated that good cause for the extension existed because “the parties have

agreed to craft a mutually agreeable schedule that allows for some discovery, which [p]laintiffs

believe is necessary to oppose [d]efendants’ motion.” Id. at 2.          However, it appears that

defendants had a change of heart regarding their cooperation with plaintiffs on discovery. In a

joint proposed scheduling order submitted in October 2011, defendants stated that plaintiffs were

entitled to zero discovery, arguing that since this was originally a case brought under the

Administrative Procedure Act (“APA”), plaintiffs are not entitled to discovery unless they prove

defendants have acted in bad faith. Joint Mot. Scheduling Order [580] 7–8, Oct. 14, 2011.

Plaintiffs, apparently confused about how they could intelligently evaluate or oppose defendants’

motion to vacate the 1993 Order absent some discovery, filed a motion to compel. Pls.’ Mot.

Compel [586], Nov. 23, 2011. Defendants responded, a few days later, with a motion for a

protective order. Defs.’ Mot. Protective Order [589] Nov. 29, 2011. These motions are now ripe

for review.

II.    ANALYSIS

       The Court agrees with plaintiffs that they are entitled to some discovery. Defendants’

opposition to plaintiffs’ request for discovery, based upon their belief that review of agency

action is limited to the administrative record absent a showing of bad faith, Defs.’ Mot.

Protective Order [589-1] 8–10, reflects a pair of fundamental confusions.

       First, defendants confuse a challenge to final agency action and a challenge to an

agency’s failure to act. Defendants are correct that, in a challenge to final agency action, judicial

review is ordinarily limited to the administrative record in existence at the time of the agency’s



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decision. Aguayo v. Harvey, 476 F.3d 971, 976 (D.C. Cir. 2007) (citing Florida Power & Light

Co. v. Lorion, 470 U.S. 729, 743 (1985)). In such circumstances, the district court acts like an

appellate court, and the “entire case” is “a question of law.”        Amer. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Even when an agency’s factual findings are at

issue, the question for the district court is still a question of law—i.e., “whether [the agency]

acted in an arbitrary and capricious manner.” Univ. Med. Ctr. v. Shalala, 173 F.3d 438, 440 n.3

(D.C. Cir. 1999).

       However, when it comes to agency inaction under 5 U.S.C. § 706(1), “review is not

limited to the record as it existed at any single point in time, because there is no final agency

action to demarcate the limits of the record.” Friends of the Clearwater v. Dombeck, 222 F.3d

552, 560 (9th Cir. 2000). Said another way, if an agency fails to act, there is no “administrative

record” for a federal court to review. Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d

70, 79 (D.C. Cir. 1984). Therefore, “there may well be reason for discovery, since agency delay

is not necessarily a discrete event resulting from a decision based upon some sort of

administrative record, but may be simply . . . after-the-event justifications [] which may need to

be explored by plaintiffs.” Milanes v. Chertoff, No. 08 Civ. 2354 (LMM), 2008 WL 2073420, at

*1 (S.D.N.Y. May 13, 2008).

       Such is the case here, where no administrative record was ever filed. Accordingly, in

Judge Gasch’s opinion granting plaintiffs’ motion for summary judgment in 1988, he reviewed

that motion under 5 U.S.C. § 706(1) (authorizing reviewing courts to “compel agency action

unlawfully withheld or unreasonably delayed”), and made findings of fact based upon a

statement of facts submitted by plaintiffs (to which defendants did not object), which referenced

deposition testimony, various exhibits, and other discovery. Nat’l Coalition for the Homeless v.



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U.S. Veterans Admin., No. 88-2503 (OG), 1988 WL 136958, at *4–6 (D.D.C. Dec. 15, 1988).

In short, even if the Court were, at this moment, reviewing defendants’ actions under the APA,

absent an administrative record constituting the materials upon which the agencies arrived at

some decision to which this Court, upon review, might defer, plaintiffs would likely be entitled

to some discovery to enable meaningful judicial review.

       However, defendants’ motion to vacate the 1993 Order does not involve review of

agency action or inaction under the APA. This brings us to defendants’ second confusion.

Defendants are also confusing a challenge to agency action generally—as was the case originally

in this litigation—and a court’s monitoring of compliance with its own orders.            While, in

reviewing agency action under the APA, the agency is ordinarily the finder of fact, when it

comes to a court’s enforcement and monitoring of its own orders, the court is the judge and jury.

As noted above and repeated by Judge Gasch and this Court at various stages of this litigation, a

federal court has broad discretion in using its inherent equitable powers to ensure compliance

with its orders. Shillitani v. United States, 384 U.S. 364, 370 (1966); see also Chambers v.

NASCO, Inc., 501 U.S. 32, 43–46 (1991) (discussing the inherent powers of federal courts).

These powers are governed by no rule or statute, “but by the control necessarily vested in courts

to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”

Chambers, 501 U.S. at 43 (citations and quotations omitted). The “power of a court of equity to

modify a decree of injunctive relief . . . is long-established, broad, and flexible.” Salazar ex rel.

Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011) (citations and quotations

omitted). Equity would not be achieved if a court decided simply to rubber-stamp an enjoined

party’s unsupported self-assessment of its compliance with a court order. This is reflected in this

Circuit’s law, which requires courts to make factual inquiries in evaluating motions to vacate or



                                                 5
modify injunctions under Federal Rule of Civil Procedure 60(b)(5). See Petties ex. rel. Martin v.

District of Columbia, 662 F.3d 564, 571 (D.C. Cir. 2011). With respect to defendants’ motion to

vacate the 1993 Order, they bear the burden, under Rule 60(b)(5), of “establishing that changed

circumstances warrant relief.” Horne v. Flores, 557 U.S. 433, 129 S. Ct. at 2579, 2593 (2009).

Defendants cannot meet their burden, and plaintiffs (and this Court) cannot test defendants’

allegations, absent facts. 2 And, as the Supreme Court has noted, “[d]iscovery is useful in

determining what the facts are.” N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398, 404 (1960).

        Therefore, the Court will allow some discovery in this case to facilitate its evaluation of

defendants’ motion to vacate the 1993 Order. Such discovery will be limited to the development

of those facts necessary to advance the parties’ arguments with respect to defendants’ motion to

vacate the 1993 Order. The Court will order the parties to meet and confer, to both narrow any

differences between them on the scope of this discovery and to reach a mutually agreeable

proposed schedule for proceeding with such discovery.                      The parties’ joint motion for a

scheduling order will therefore be denied as moot. The Court further holds that, since plaintiffs

did not seek leave of court prior to serving post-judgment discovery on defendants, defendants

have not waived any applicable objections they may choose to raise to such discovery as is

ultimately agreed to or ordered by this Court.                Therefore, as to that subordinate issue of

plaintiffs’ motion to compel, plaintiffs’ motion is denied.

III.    CONCLUSION

        How defendants came to believe that they could persuade the Court to lift a longstanding

injunction on nothing other than their own say-so is baffling, and their failure to cooperate on


2
  All that this Court has seen from defendants since it inherited this case are monthly notices, informing the Court
that certain reports were transmitted to plaintiffs’ counsel per the terms of the 1993 Order. See, e.g., Defs.’
Response [590] Dec. 9, 2011. Other than these terse statements, the Court has received no information concerning
defendants’ compliance with any of the terms of the injunction.

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discovery has resulted in a significant and unnecessary delay in the resolution of their own

motion. While this is an old case, it’s an important one, with real consequences for people who

have fallen about as far down in the depths as one can in this country. The Court hereby advises

defendants that it expects their sincere cooperation with plaintiffs in discovery going forward.

          Accordingly, it is hereby

          ORDERED that plaintiffs’ Motion [586] to Compel Discovery is GRANTED IN PART

AND DENIED IN PART; and it is further

          ORDERED that defendants’ Motion [589] for a Protective Order is DENIED; and it is

further

          ORDERED that the Parties’ Joint Motion [580] for a Scheduling Order is DENIED AS

MOOT; and it is further

          ORDERED that the parties, within thirty (30) days of this Memorandum and Order, shall

meet and confer, and shall file with the Court a proposed scheduling order—jointly if possible,

separately if necessary—for the conduct of limited discovery in this case. This discovery shall

be limited to what is necessary to permit the parties to support their arguments on behalf of, or in

opposition to, defendants’ Motion [568] to Vacate the Court’s April 21, 1993 Order.

          SO ORDERED.

          Signed by Royce C. Lamberth, Chief Judge, on February 3, 2012.




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