proval. See Opinion of the Comptroller General B-160891 (February 24, 1967), attached hereto as Appendix B. Thus, the time periods provided by Section 118 for State expenditure of federal funds before, during, or after the fiscal year for which they are authorized are reflective of the discretion vested in the Secretary of Transportation by the Federal-Aid Highway Act to control the rate of state obligation of federal funds. To hold otherwise would be to effectively eliminate federal control of federal fund obligation, a result clearly inconsistent with 23 U.S.C. § 106(a) and the Act's general statutory scheme.

II. THE COURT LACKS JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION

A. Relief in the Nature of Mandamus Is Not Available to Plaintiff In This Action. Plaintiff alleges that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1391. 1361, and 2201, and by 5 U.S.C. § 706. Section 1361 was added to the Judicial Code by P.L. 87-748, 76 Stat. 744 of October 5, 1962. This Act merely extended to district courts outside the District of Columbia authority to grant relief in the nature of a writ of mandamus against federal officers. It made no substantive changes in the law, and did not enlarge the scope of mandamus relief. See McEachern v. United States, 212 F. Supp. 706, 712 (W.D. S. Car. 1963), affirmed in part, vacated in part on other grounds and remanded. 321 F. 2d 31 (4th Cir. 1963); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F. 2d 364, 367 (10th Cir. 1966), cert. denied 385 U.S. 831; Carter v. Seamans, 411 F. 2d 767, 773 (5th Cir. 1969) cert. denied 397 U.S. 941; Bowen v. Culotta, 294 F. Supp. 183 (E.D. Virginia 1968). Further, existing doctrines of sovereign immunity were not affected by the enactment of 28 U.S.C. § 1361. Massachusetts v. Connor, 248 F.Supp. 656 (D. Mass. 1966), affirmed per curiam 366 F.2d 788 (1st Cir. 1966). 28 U.S.C. § 1391, upon which plaintiff also relies, is merely a venue provision which complements 28 U.S.C. § 1361. See United States ex rel. Rudick v. Laird, 412 F.2d 16 (2nd Cir 1969), cert. denied 396 U.S. 918. Plaintiff further relies on 28 U.S.C. § 2201, the Declaratory Judgment Act. However, it is well established that the Declaratory Judgment Act is not an independent source of jurisdiction. See, e.g., Schilling v. Rogers, 363 U.S. 666 (1960); International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm'n v. Wycoff Co., 344 U.S. 237 (1952). Plaintiff may not rely upon the Administrative Procedure Act (5 U.S.C. §§ 701 et seq.), for the Act explicitly excepts from its application discretionary agency action. 5 U.S.C. § 701(a)(1). As we show below, the acts here complained of are discretionary in nature, and relief in the nature of judicial review and mandamus is not available, and this action must be dismissed for lack of jurisdiction.

The power of the district courts to compel official action by mandatory order is limited to the enforcement of nondiscretionary, ministerial duties. Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 514-17; Work v. United States ex rel. Rives, 267 U.S. 175, 177; Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218; United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543.

An official action is not ministerial unless "the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command ***." Wilbur v. United States er rel. Kadrie, 281 U.S. 206, 218; United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420; Interstate Commerce Comm'n v. New York, N.H. & H.R. Co., 287 U.S. 178, 203–04; United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543.

Perhaps the landmark decision articulating the limitations on the authority of the courts to compel Executive action by way of mandamus is Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840). The decision squarely supports the proposition that the Executive's decision whether to follow a congressional direction to disburse funds is a matter of discretion which cannot be controlled by mandamus. In that case, Congress had passed a resolution providing for the payment of a pension to the widow of a naval officer. Had the Secretary of the Navy mechanically followed the direction of Congress, the widow would have received two pensions: one from the specific resolution adopted on her behalf and the second from a general pension statute. Relying on advice from the Attorney General, the Secretary put the widow to a choice of the two pensions,

8

In the context of the instant case, the Attorney General has informed the Secretary of Transportation that the imposition by the Secretary of limitations on the amount of federal-aid highway funds which may be obligated constitutes a valid exercise of executive authority. See 42 Op. Atty. Gen., No. 32 (1967).

Upholding the Secretary's action as an exercise of his discretion which could not be controlled by mandamus, the Court noted that "interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief * * *" 39 U.S. at 516.

Massachusetts v. Connor, 248 F.Supp. 656 (D. Mass. 1966), aff'd per curiam, 366 F.2d 778 (1st Cir. 1966), is also markedly apposite to the instant case. There, the State sought to compel the Secretary of Commerce to approve a voucher for payment representing federal participation in right-of-way costs with respect to an approved interstate highway system project. The dispute underlying the suit centered on the amount that could properly be claimed by the State as the cost of the approved project. Plaintiff contended, principally, that the Court had jurisdiction under 28 U.S.C. 1361. The Court had jurisdiction under 28 U.S.C. 1361. The Court held that the Secretary's decision-under the Highway Act-whether to approve the State's voucher could hardly be characterized as ministerial official action, enforceable by a mandatory order.

In the face of the executive's awesome responsibilities for controlling the course of the national economy, it is sheer folly to argue that a decision whether to spend hundreds of millions of dollars is a mere ministerial act which can be compelled by mandamus. The nature of the difficult problems encountered by the President in controlling expenditures in the face of congressional increases in appropriations requests was recently outlined by the President. See 6 Pres. Doc. 940 (July 20, 1970) (Provan Affidavit, Exh. 34). See also the President's Veto Message on the Water Pollution Control Act of 1972, 8 Pres. Doc. 1531, 1532 (October 17, 1972). In deciding whether to spend appropriated funds, consideration must be given by the Executive not only to legislative authorizations and appropriations, but also, as the affidavit of John R. Provan indicates, to such factors as the effect of the authorized expenditures on the national economy and their relation to other programs important to the national welfare. (Provan affidavit, para. 4).

The magnitude of the federal-aid highway program-and its consequent obvious effect on overall government spending and efforts to control inflationary pressures-has always required close scrutiny of expenditures for highway programs. One previous reduction in federal-aid highway fund obligations is discussed in 42 Op. Atty. Gen., No. 32 (1967).

The extent of the discretion required in examining federal programs to conform with such ceilings on spending is, thus, self-evident. See Fisher, Funds Impounded by the President: The Constitutional Issue, 38 Geo. Wash. L. Rev. 124, 128-29 (1969):

The expenditure of appropriations is often more than a mere ministerial act. such as paying a claim or entering the minutes of a court. The President has budgetary responsibilities to effect economies and avoid deficiencies, as well as far-reaching responsibilities under the Employment Act of 1946 for conditions in the national economy. Presidential judgment that a Nike-Zeus anti-missile system contains too many technical weaknesses to justify deployment, that additional funds appropriated for the Air Force would strain the economy, or that producing of B-70 bombers is unwarranted in view of existing missile capability is no mere ministerial act. Such divisions require discretion and judgment thus severely limiting the appropriateness of judicial intereference. Congressional deference to executive discretion was evident in the 1962 dispute concerning the RS-70 bomber. The House Armed Services Committee "directed" the Secretary of the Air Force to spend not less than $491 million toward production of the aircraft-a figure $320 million higher than the Administration's request. President Kennedy, insisting upon "the full powers and discretions essential to the faithful execution of [his] responsibilities as President and Commander-in-Chief," was successful in turning back this legislative challenge. The bill was changed so that the President was "authorized" to spend the funds, rather than directed. If Congress hesitates to push toward a confrontation with the President in this case, the Court would be no more combatant. This is clearly a question to be resolved by the political branches. [Footnotes omitted.]

See also Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 (1958) and Kendler v. Wirtz, 388 F. 2d 381 (3rd Cir. 1968), articulating the limitations on the authority of the judiciary to review the manner in which the Executive exercises its discretion as a means of achieving its lawful objectives.

B. This Action is an Unconsented Suit Against the United States Which Must Be Dismissed.

The instant action is also barred as an unconsented suit against the sovereign. Again, Massachusetts v. Connor, supra, is squarely in point. As here, plaintiff did not expressly seek a money judgment, but, instead, couched its suit as an action purporting to compel the Secretary to approve payment of a voucher. The court noted (248 F. Supp. at 660):

Existing doctrines of sovereign immunity from suit were not affected by the enactment of § 1361. What is in reality an action against the United States cannot be brought within this section by merely recasting it as an action against an officer, Rose v. McNamara, D.C., 225 F. Supp. 891. The action here is in substance one against the United States. What Massachusetts is really seeking is payment from the United States. It purports to seek relief from the named defendants only as a device for obtaining a decision that the United States owes or will owe it the full amount it claims. Any judgment in this case will ultimately expend itself on the public treasury. Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15; Maloney v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L. Ed. 2d 168. As has been pointed out, the United States has waived its immunity to suit on a contract claim, but only to the extent of consenting, so far as claims of the magnitude of the present one are concerned, to suit in the Court of Claims. It is there plaintiff belongs, and it cannot, "by the mystique of a different form of complaint," (Sprague Electric Company v. Tax Court of the United States, 1 Cir., 340 F. 2d 947, 948) confer jurisdiction on this court. This reasoning is, of course, wholly applicable to the instant case.

In Hawaii v. Gordon, 373 U.S. 57, 58 (1963), the Supreme Court succinctly held that a suit which nominally sought to compel action by a government officer was barred as an unconsented suit against the United States where it was apparent that the order requested would require the officer's official affirmative action, would "affect the public administration of government agencies and cause as well the disposition of property admittedly belonging to the United States." The Supreme Court's decision in Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945), also controls the instant case. There, plaintiff sought injunctive and declaratory relief to prevent the Under Secretary of the Navy from withholding payments due under government contracts to satisfy the government's claim for reimbursement of excessive profits realized on other government contracts. The Court found (326 U.S. at 375) that "the conclusion is inescapable that the suit is essentially one designed to reach money which the government owns." Stated in other terms (326 U.S. at 374–75) :

** The sole purpose of this proceeding is to prevent the Secretary from taking certain action which would stop payment by the government of money lawfully in the United States Treasury to satisfy the government's and not the Secretary's debt to the appellant. The assumption underlying this action is that if the relief prayed for is granted, the government will pay and thus relinquish ownership and possession of the money. In effect, therefore, this is an indirect effort to collect a debt allegedly owed by the government in a proceeding to which the government has not consented.

Since the sovereign was an indispensable party and had not consented to be sued, the action failed.

The Supreme Court in Dugan v. Rank, 372 U.S. 609, 620 (1963) stated the general rule regarding an unconsented suit against the sovereign as follows: The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," Land v. Dollar, 330 U.S. 731, 738 (1947), or if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act."

In McKay v. Central Electric Power Coop., 223 F.2d 623 (C.A. D.C. 1955), plaintiff sought review of the Secretary of Interior's decision that statements made by the House Managers of a Conference Committee barred the Secretary from allocating any part of an appropriation for the performance of contracts with the Cooperative. Relying on, inter alia, Mine Safety Appliances Co., supra, the Court of Appeals held that the action constituted an unconsented suit against the sovereign and ordered the action dismissed.

In an action raising questions similar to those raised in the instant action, the Court granted the Government's Motion to Dismiss. The Housing Authority of the City and County of San Francisco v. United States Department of Housing and

90-538-73-65

Urban Development, et al., N.D. Cal.; Civil Action C71-7735-OJC. The Housing Authority instituted the action to compel the release by the Executive of appropriated funds, alleging that such impoundment was unconstitutional. In an Order dated April 6, 1972 (a copy of which is attached hereto as Appendix C for the Courts' convenience), the Court held that the action was an unconsented suit against the sovereign, as "the remedy sought necessitates the expending of the public treasury. . . ." (Order, page 2). The Court further found that plaintiffs' allegations that the impoundment was without statutory authority and unconstitutional were without foundation. Finding no statutory mandate by Congress, the Court stated the following:

"[T]he executive is expected to make economies when possible in this legislatively created program. Given the non-mandatory language of this statutory scheme the Court finds that the plaintiffs cannot show that the executive exceeded his statutory discretion in not spending all the appropriated funds. [Order, pp. 3-4.]

The Court further found that plaintiffs' claim presented a nonjusticiable political question, and that it lacked jurisdiction. The Court stated the following at page 4 of its Order:

The issue as presented is one without justiciable standards or guidelines. Although the issue is identifiable there are no means by which the Court can determine when or whether a breach of executive duty has occurred. Given the legislature's intention of allowing spending discretion in the executive, it would appear to be left to the legislature to decide when such discretion as abused. The legislature appears to have created much of the executive's discretion to withold funds and would also appear to be able to limit that discretion if it so desired.

The action presently before the Court is even more clearly an example of an action against the Executive which cannot be maintained. As shown above, Congress has deliberately utilized hortatory language regarding federal-aid highway funds, and has rejected mandatory language seeking to prohibit impoundment. Further, unlike the situation presented in San Francisco Housing Authority. supra, only the rate of releasing apportioned funds for obligation by the States is at issue, not the withholding of appropriated money. As we have pointed out, supra, neither the authorization or apportionment of funds creates any enforceable obligation of the Federal Government to the States, but only upon approval of a specific project does such an obligation arise. 23 U.S.C. § 106. Until such time, the States have no legally enforceable rights whatsoever which may be judicially asserted. See Massachusetts v. Connor, 248 F. Supp. 656 (D. Mass. 1966), aff'd per curiam, 366 F.2d 778 (1st Cir. 1966).

Thus, it is clear that this action, seeking to restrain the Executive from exercising discretionary authority and the reach government funds in the Treasury, must be dismissed.

III. PLAINTIFF'S ACTION PRESENTS A POLITICAL QUESTION WHICH IS INAPPROPRIATE FOR JUDICIAL REVIEW AND DOES NOT PRESENT A JUSTIFIABLE CONTROVERSY

By the instant action plaintiff seeks to have this Court take action regarding the impoundment of funds which the Congress has considered and rejected. As we have shown above, Congress possesses the power to directly attempt to impose mandatory spending requirements on the Executive, but has refused to do so regarding federal-aid highway funds. Thus, the question raised is one between the coordinate political branches of the Federal Government, and does not present a justiciable controversy necessary to the exercise of judicial review. It is well established that federal courts will not adjudicate political questions presented by court actions. See Powell v. McCormack, 395 U.S. 486, 518 (1969); Epstein v. Resor, 421 F. 2d 930 (9th Cir. 1970), cert. denied 398 U.S. 965; Pauling v. MeNamara, 331 F. 2d 796 (D.C. Cir. 1963), cert, denied 377 U.S. 933. The Court is being asked to supervise and direct the actions of the political branches of the Government, the Legislative and the Executive. The Supreme Court has, from its earliest pronouncements, refrained from such an effort on the ground that the issue was not justiciable. See Marbury v. Madison, 1 Cranch 137, 170 (1803); Luther v. Borden, 7 How. (48 U.S.) 1, 46-7 (1849); Georgia v. Stanton, 6 Wall. 50. 71 (1868); Keim v. United States, 177 U.S. 290. 293 (1900); Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 317 (1958). For the Court to do indirectly that which Congress has considered and rejected would be in direct violation of the doctrine of separation of powers. In Humphrey's Executor v. United States, 295

U.S. 602, 629-30 (1935), the Supreme Court analyzed the importance of the doctrine as follows:

The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control on the house of another who is master there.

The relief sought by plaintiff would require the Court to interfere in the relationship between the executive and legislative branches. Rather, the subject matter of this suit should not be determined by the Court, but left to the coordinate political branches for resolution.

The basic issue of the Executive's power to control the rate of expenditure of funds is a question which is "essentially political in nature." In Baker v. Carr, 369 U.S. 186, 217 (1962), the Supreme Court enunciated the following test for the determination of political questions:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manage. able standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the im possibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on one question. [Emphasis added.]

As we have already shown above, the question has been held to be one "without justiciable standards or guidelines." Housing Authority of the City and County of San Francisco v. United States Department of Housing and Urban Development. et al., N.D. Cal.; Civil Action No. C-71-1135-OJC (copy of the Order attached hereto as Appendix C). Citing Baker v. Carr, supra, the Court stated the following regarding the executive's use of discretion in impounding funds: The issue as presented is one without justiciable standards or guidelines. Although the issue is identifiable there are no means by which the Court can determine when or whether a breach of executive duty has occurred. Given the legislature's intention of allowing spending discretion in the executive, it would appear to be left to the legislature to decide when such discretion is abused. The legislature appears to have created much of the executive's discretion to withhold funds and would also appear to be able to limit that discretion if it so desired. Whatever the legislature's intentions were, the Court finds itself in the position of adjudicating a dispute where it has no standards for determining which side is correct.

The Supreme Court in Baker v. Carr, 369 U.S. 186, 217 (1962), reviewed previous decisions involving political questions. It found that the lack of judically discoverable and manageable standards, when inextricable from the case, had been a basis for dismissal as a political question. The Court finds itself in such a position in this problem of the working relationship between the executive and Congress. Accordingly, the Court has no jurisdiction to consider such a claim because it is a political question. See Baker v. Carr, supra, and Powell v. McCormack, 395 U.S. 486 (1969). [Order, pp. 4-5].

The reasons why the judiciary should not become involved in controversies such as that presented by plaintiff's action is well stated in Colegrove v. Green, 328 U.S. 549, 556:

The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action. . . . The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights.

It is clear, as shown above, that Congress has long been fully aware of executive action regulating expenditures. In several areas relating to public works, the Executive has on occasion found it necessary to schedule the rate at which funds made available by Congress are to be spent, in order to meet budgetary requirements or to resist inflationary pressures. See, e.g., Hearings before Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking,