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San Francisco, City & County of v. United States

Citation: 8 ELR 20386
No. No. C-77-546-SW, 443 F. Supp. 1116/11 ERC 1065/(N.D. Cal., 11/25/1977)

In a suit for damages and injunctive relief in which plaintiff alleged the illegality of the leasing of surplus federal port facilities to a private party, the court dismisses all of the claims advanced by plaintiff except for one seeking production of certain documents under the Freedom of Information Act (FOIA). The Hunter's Point Naval Shipyard, which is located within the City and County of San Francisco, was closed by the Secretary of Defense in 1973 and subsequently offered for lease. After losing on its bid to lease the facility and after a dispute over a sub-lease subsequently entered into with the first-party lessee, plaintiff instituted this lawsuit alleging eight causes of action.

Claims one, two, and seven essentially assert that under the applicable federal statutes directing the Secretary of Defense to consider the public interest when awarding such leases, the Secretary's failure to award the lease to the plaintiff, which planned to develop the facility into a public port, constituted an abuse of discretion under the Administrative Procedure Act (APA). The court declines to consider these contentions, ruling that under the standards established in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971), the Secretary's decision is committed to discretion under the applicable statutes and is therefore unreviewable. The court also dismisses the claimed violations of the federal conflict of interest statutes, 18 U.S.C. §§ 201 and 208, because of a lack of standing and denies as well the claims for damages, finding that the leasing statute allegedly violated does not give rise to a private right of action. The court refuses to dismiss plaintiff's FOIA claims because of remaining unresolved factual issues.

The full text of the Digested portion of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1154).

Counsel for Plaintiff
Thomas M. O'Connor, City Attorney; Phillip S. Ward, Deputy City Attorney
City Hall, San Francisco CA 94102
(415) 558-3315

Counsel for Defendants
James L. Browning, Jr., U.S. Attorney; David P. Bancroft, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

George M. Coburn
vom Baur, Coburn, Simmons & Turtle
1700 K St., Washington DC 20006
(202) 833-1420

Edward Briggs, Assoc. General Counsel
Coldwell Banker & Co.
1 Embarcadero Center, San Francisco CA 94111
(415) 772-0352

Williams, J.