47 F.3d 1156

47 F.3d 1156
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

Plaintiff, Appellant,
Richard RILEY, Secretary of Education, Et Al., Defendants, Appellees.

No. 94-2081

United States Court of Appeals,
First Circuit.

Feb. 16, 1995

Appeal from the United States District Court for the District of Rhode Island [Hon. Ronald R. Lagueux, U.S. District Judge ]

Joseph R. Palumbo, Jr. for appellant.

Neil H. Koslowe, Special Litigation Counsel, Dept 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.



Before SELYA and BOUDIN, Circuit Judges, and CARTER,* District Judge.



This appeal seeks to test the appropriateness of an order of the Secretary of Education implementing 20 U.S.C. Sec. 1072(e) (repealed).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 creditable with appellant’s asseverations in their respective decisions following our 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.


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