RIHEAA v. US EDUC

February 16, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2081

RHODE ISLAND HIGHER EDUCATION ASSISTANCE AUTHORITY,
Plaintiff, Appellant,

v.

RICHARD RILEY, SECRETARY OF EDUCATION, ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Carter,* District Judge.

Joseph R. Palumbo, Jr. for appellant.

Neil H. Koslowe, Special Litigation Counsel, Dep't of

Justice, with whom Frank W. Hunger, Assistant Attorney General,

Sheldon Whitehouse, United States Attorney, and William Kanter,

Deputy Director, were on brief, for appellees.

*Chief Judge of the United States District Court for the District
of Maine, sitting by designation.

Per Curiam. This appeal seeks to test the appropri-
Per Curiam.

ateness of an order of the Secretary of Education implementing 20

U.S.C. 1072(e) (repealed). Specifically, the contested order

involves the Secretary's denial of appellant's request for a

waiver that would have shielded it from the consequences of its

noncompliance with a particular requirement of the statute.

We have read the briefs, perused the voluminous record,

entertained oral argument, and studied the applicable law. When

all is said and done, we are convinced that, at bottom, this case

turns on deference to the Secretary's exercise of informed

discretion, and that the Secretary's insistence on the forthright

implementation of the statute's "cap" on maximum allowable cash

reserves, as exemplified by his denial of appellant's waiver

request, is not "arbitrary, capricious, or manifestly contrary to

the statute." See Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 844 (1984). Since no more

is exigible, the Secretary's ruling must stand. Put another way,

the "inescapable conclusion" that appellant's counsel entreats us

to draw eludes us (as it did the Secretary and the court below).

To go further would serve no useful purpose. We have

already written at length about this very situation, see Rhode

Island Higher Educ. Assistance Auth. v. Secretary of Educ., 929

F.2d 844 (1st Cir. 1991) (vacating earlier district court order

and remanding for further proceedings); the Secretary and the

district court each dealt creditably with appellant's

asseverations in their respective decisions following our

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original remand; and the appeal, in its present posture, presents

no fairly debatable issue of either fact or law. Consequently,

we affirm the judgment below for substantially the reasons

elucidated in the district court's well-considered rescript. See

Rhode Island Higher Educ. Assistance Auth. v. Riley, No. 92-

0623L, slip op. at 5-8 (D.R.I. Aug. 19, 1994).

Affirmed. See 1st Cir. R. 27.1.
Affirmed. See 1st Cir. R. 27.1.

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