460 F2d 256 United States v. Capital Assistance Corporation

460 F.2d 256

UNITED STATES of America and Small Business Administration, Appellees,
v.
CAPITAL ASSISTANCE CORPORATION, Appellant.

No. 25779.

United States Court of Appeals,
Ninth Circuit.

April 20, 1972.

Lawrence A. Nestel (argued), Gerald J. Kilday, of Nemer, Nestel & Kilday, San Francisco, Cal., for appellant.

Walter H. Fleischer (argued), Alan S. Rosenthal, Morton Hollander, William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C., John J. Sharp, Washington, D. C., Earl E. Waugh, James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellees.

Before KOELSCH and GOODWIN, Circuit Judges, and MURRAY,* District Judge.

ORDER OF AFFIRMANCE

PER CURIAM.

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1

This appeal was taken from a judgment and order of the district court in an action by the appellee Small Business Administration to foreclose on an overdue note of appellant Capital Assistance Corporation and to be appointed receiver. The district court granted summarily the relief sought and dismissed the counter-claim.

2

We affirm.

3

The district court found and it is admitted by the appellant Capital Assistance Corporation that the loan was overdue and unpaid, but it is argued that refusal to renew the loan was arbitrary and that the government is estopped from claiming that the sums in question are due and owing. In Ferry v. Udall, 336 F.2d 706, 711 (1964) this court determined that with regard to judicial review of administrative procedure "the analytical problem is that of determining when the agency action is 'committed to agency discretion' within the meaning of section 10 of the Administrative Procedure Act, and when it merely 'involves' discretion which is nevertheless reviewable." See also Mollohan v. Gray, 413 F.2d 349 (1969). The renewal of the loan in this case under 15 U.S.C. 683(b) is an act committed to agency discretion and therefore excepted from judicial review.

4

The determination that the agency decision not to renew the loan was an act of administrative discretion not reviewable by the courts makes it unnecessary to consider appellant's other arguments.

*

Honorable W. D. Murray, Senior Judge, United States District Court, Butte, Montana, sitting by designation