RIHEAA v. US EDUC

USCA1 Opinion









February 16, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]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U.S.C. 1072(e) (repealed).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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