Freedom of Expression
Freedom of Expression
at the National Endowment for the Arts
An interdisciplinary educational project partially
funded by the American Bar Association, Commission on College
and University Legal Studies through the ABA Fund for Justice
and Education
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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.
Plaintiff Susan R. Frasier is a resident of Schenectady, new York. . . . . [I]n 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." . . . She satisfied all of the program's procedural requirements, thus allowing her application to be considered in the NEA's selection process.
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. . . . 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 the 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. . . .
With respect to plaintiff's proposed project, the program's panel of experts recommended against funding, and the National Council of 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 representative.
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. [These proposals were denied funding.] . . . Plaintiff brought suit in this court in August, 1990. . . Her second cause of action challenges the results of the NEA procedures as they were applied to her application. .. .
. . .
Administrative Procedure Act
Plaintiff alleges in large part that she was denied federal funding due to the HHS's and NEA's improper decision making and faulty procedures . . . 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. . . Since plaintiff alleges that she was aggrieved by the defendant agencies' actions, the APA provides the appropriate avenue for redress . . . [H]owever, 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 states:
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. Id.
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." . . . 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." . . . 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," . . . and thus beyond the reach of this court's power to review.
Discretion under the NEA
The enabling legislation for NEA funding is found at 20 U.S.C. 954 . . . 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. . . . 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. . . . Congress left mostly to the discretion of the Chairperson the determination of what constitutes "art excellence," "artistic merit," and "general standards of decency." (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." . . .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. . . . 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 . . .
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," . . . 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 jurisdiction.
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. . . .
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. . . . A claim of deprivation of due process cannot stand unless plaintiff possesses a right, or interest, which is entitled to due process protection in the first place. . . . 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 because,
[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.
. . . 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 . . . This court must therefore once again examine the laws implicated in the present case . . . 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 . . . the existence of agency discretion thwarts plaintiff's claim of an entitlement cognizable under the due process clause. . . [W]hen an agency . . . 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. . . .
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. Accordingly, the court dismisses plaintiff's complaint to the extent that it entails claims of deprivation of a right to due process.
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 number 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. . . .
Notes omitted from the report of the opinion.
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Last updated: June 28, 1998