plans because of failure of the Administrator to allot. And in Campaign Clear Water, Inc. v. Train,176 suit was brought by a corporation presenting claims particular to certain of its members pursuant to Sierra Club v. Morton.177 The corporation is "... organized to promote ecological and environmental advancement in Virginia. Its officers, directors, and financial contributors include Virginia residents who use the nation's waters for both sport and commercial fishing and for other recreational purposes." They alleged that their interests are impaired by discharge of untreated waste treatment plants into Virginia waters. They allegedly have suffered economic injury from contaminated waters from plants operated by certain sanitation districts, which have ruined shellfish beds. Finally they alleged that the withholding of funds would have a disastrous effect upon future plans for water treatment facilities, and would allow injuries to plaintiffs to continue. The court found that the injuries alleged were to interests protected by legal rights assertedly violated by defendant's acts.

The case of Brown v. Ruckelshaus 178 was brought by a private citizen on behalf of himself and all other California citizens and residents. However, section 505 was held not to authorize class actions.

2. Real Interest, and Ripeness of Injury

Closely related to the requirements of adverse litigants and substantial interest for standing in Federal court is the requirement that the interest in litigation be "real," as opposed to speculative, abstract, hypothetical, or moot. It is the Federal courts' "considered practice not to decide abstract, hypothetical or contingent questions." 179

Numerous cases affecting the right of plaintiffs to full implementation of statutory programs have come to a decision over objections by defendant that plaintiffs have not been directly aggrieved by defendant's actions and that damages are merely speculative. Some cases have been dismissed as moot because the funds in question were either allocated or released.180 But nearly all others have found plaintiff's alleged damages to be real. For example, defendants argued in Pennsylvania v. Lynn,181 that damages to plaintiff arising out of retardation of housing subsidy, mortgage loan insurance, and rent supplement programs were merely speculative because the Department of Housing and Urban Development had not made any final commitment of funds to any plaintiff, and because the programs were merely being suspended, rather than terminated.

The court found, however, that plaintiffs had a direct stake in the outcome of the litigation. Plaintiffs had expended time, money, and effort in submitting or preparing applications for subsidies under the programs, and under the status quo, would receive no assistance at all, so all preparations and money would be wasted. Plaintiffs therefore had a real interest in seeing that applications were received, processed, and evaluated as the act required.'

182

The refusal of the Administrator of the Environmental Protection Agency to allocate funds under the Water Pollution Control Act

176 Supra.

177 Supra. 178 Supra.

179 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).

180 Nat's Ass'n of State Universities and Land Grant Colleges v. Weinberger, C.A. No. 1014-73 (D.D.C., June 29, 1973); Ohio v. Weinberger, C.A. No. 73-313 (S.D. Ohio, Jan. 31, 1974).

181 Supra.

182 See also, State Highway Comm. of Missouri v. Volpe, supra.

Amendments of 1972 has been held to present legal issues of "sufficient immediacy and reality" to invoke the jurisdiction of the court,183 but plaintiffs have been denied standing for failure to submit affidavits averring that refusal to allot has injured or would injure plaintiffs. Such failure defeats the plaintiffs' allegation of a ". . . personal stake in the outcome of the controversy.' "" 184

Whether the injury complained of is "ripe" for adjudication is a question of jurisdication of the court almost indistinguishable from whether the injury is "real," except that "ripeness" is an issue that concerns the maturity of an alleged injury rather than the genuineness. 185

The issue of ripeness arose in the impoundment context in State Highway Comm. of Missouri v. Volpe,186 wherein it was questioned whether the plaintiff was entitled to a declaratory judgment regarding future withholdings of obligational authority by defendant when such authority had been granted for the current fiscal year. The court held that when the actions questioned are those of the Government, a declaratory judgment is appropriate if it would have significant consequences in determining the extent of any further relief deemed necessary, if the illegal conduct should be expected to resume in the future, and if there is a certainty that the impact will fall on the same objecting litigants. A similar question was raised in Local 2677, A.F.G.E. v. Phillips,187 in which defendants alleged that because funds appropriated under OEO authorizations for community action agencies were not to be terminated until June 30, 1973, any suit prior to that time would not be ripe for determination. However, the court found that there was sufficient injury, ripe for determination, from a finding that notices of termination had sufficiently disrupted the dayto-day operation of the agencies because of unwillingness of third parties to deal with them.

Finally, the issue of ripeness appeared often in suits concerning the Water Pollution Control Act funds. The Administrator of the EPA contended that the cases were not ripe for determination because plaintiffs seeking full allotment of authorized funds under the act had no guarantee that projects for which they seek funding will be approved. Because specific proposals had been neither submitted by plaintiffs nor rejected by defendants, it was argued that refusal to allot full amounts authorized does not constitute action adverse to any real or immediate interests of plaintiffs.

The court found from the legislative history of the act that the major purpose of the appropriations scheme enacted was to facilitate long-range planning and discourage hurried wasteful spending. Moreover, the act provides that funds not allotted could not be obligated, and funds not obligated in the fiscal year for which allotted would be forever lost to the States at the end of the fiscal year during which they should have been obligated.188 The court consistently held that the disruption of long-range planning and the permanent

183 Martin-Trigona v. Ruckelshaus, supra.

184 Brown v. Ruckelshaus, supra.

185 See, e.g., Adler v. Board of Education, 342 U.S. 485 (1952); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961); but see, e.g., United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 Ú.S. 497 (1961).

186 Supra.

187 Supra.

188 Pub. L. 92-500, § 205(b) (1).

loss of funds not allotted gave rise to an injury sufficiently ripe for judicial determinations of the issues.189

3. The Doctrine of Sovereign Immunity

The doctrine of sovereign immunity, barring unconsented suits against the Government, first emerged as a viable doctrine in the United States in the case of Chisolm v. Georgia,190 in which Chief Justice Jay opined that a suit would not lie against the United States because "there is no power which the courts can call to their aid." As presently viewed by the courts, any suit in which the judgment sought would "expend itself on the public treasury or domain, or interfere with the public administration," is brought against the sovereign.191 Such a suit would be barred by the doctrine of sovereign immunity unless specifically permitted by an act of Congress, or certain other common law exceptions.

Most well-known examples' of statutory exceptions to sovereign immunity include the Mandamus Act, 192 the Federal Tort Claims Act, 193 and the Administrative Procedure Act.194 A fuller discussion of the latter is included below. At this time, suffice it to mention that only a few of the cases presently under discussion came to a decision over the bar of sovereign immunity on the grounds that they concerned violations of the procedures enumerated in the Administrative Procedure Act.195

Nearly every one of the so-called impoundment suits is regarded as a suit against the United States, because they were brought against officers, agencies, or corporations of the United States, even though the United States has not been named as party defendant.196 It has been suggested by one judge that a decision mandating the execution of a congressionally legislated program would not "expend itself upon the public treasury" because the money had already been appropriated by Congress.197 Even so, any decision which mandates activity on the part of an officer or agency of the United States must be considered as an interference with the public administration. The first two "impoundment" cases were dismissed as being unconsented suits against the sovereign,198 but the remainder of the decisions have found the doctrine of sovereign immunity no bar, largely because of the Mandamus Act and partly because of two commonly accepted common law exceptions to the doctrine.

The Mandamus Act has been the basis of a great number of suits in the impoundment area. The act gives the district courts original jurisdiction over any action to compel an officer or employee of the United States to perform any duty owed to the plaintiff.

Two common law exceptions to sovereign immunity have found currency following the case of Dugan v. Rank,199 which has been accepted by many of the district courts as holding that (1) actions by officers in excess of statutory authority, or (2) actions performed

189 See, e.g., City of New York v. Ruckelshaus, supra; Texas v. Fri, supra; Campaign Clean Water v. Ruckelshaus, supra.

190 2 Dall. 419, 478 (1793).

191 Land v. Dollar, 330 U.S. 731, 738 (1947).

192 28 U.S.C. § 1361 (1970).

193 28 U.S.C. § § 2617-2680 (1970).

194 5 U.S.C. §§ 551-559, 701-706 (1970).

195 See, e.g., Berends v. Butz, supra; Local 2677, A.F.G.E. v. Phillips, supra.

196 See Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).

197 See Minnesota v. Fri, supra.

193 San Francisco Redevelopment Agency v. Nixon, 329 F. Supp. 672 (N.D. Cal. 1971); Housing Auth. of City and County of San Francisco v. H. U.D., 340 F. Supp. 654 (N.D. Cal. 1972)

199 372 U.S. 609, 620-22 (1963).

pursuant to an unconstitutional power may be made subject to suit. Therefore, before making a determination as to whether a particular suit is barred, the court may at least look to the act which is the subject of the litigation to see whether that act is in excess of statutory authority or pursuant to an unconstitutional power.200 A decision that the actions by an administrative official in withholding appropriated funds or retarding a congressionally mandated program exceed statutory authority would arguably move the court around the question of sovereign immunity.201 On the other hand, a decision that the action was neither in excess of statutory authority nor unconstitutional could be expressed simply by a determination that a suit challenging such action was barred by sovereign immunity.202

Nevertheless, having the court decide merely that it will not shut the door in the plaintiff's face does not answer some critical questions concerning whether the remedy would lie against the United States, through the officer in his official capacity, or against the officer alone as a private individual. The case of Malone v. Bowdoin,203 seems to stand for the proposition that when action by an officer goes beyond his statutory authority, or his powers or the manner in which they are exercised are constitutionally void, the officer's action "can be made the basis of a suit for specific relief against the officer as an individual." 264 But where the remedy against the officer would expend itself upon the public treasury or interfere with the public administration, the suit is in fact against the sovereign.205 The courts have stated that requiring the Administrator of the Environmental Protection Agency to allot the full amount appropriated for water pollution control-the first stage of the two-stage appropriations processwould not create a drain on the public treasury, because allotment is not the same as obligation. 206 But it has been argued, on the other hand, that the ultimate effect of allotment is the expenditure of the funds.207 The unanswered question regarding sovereign immunity, whether the remedy available is real-requiring a Federal officer to act in his official capacity to effectuate a congressionally mandated program-or illusory-against the officer personally as a private individual— remains to be decided by the Supreme Court. It may be generally stated, however, that because nearly every recent impoundment case has sought a statutory construction of the amount of discretion granted a Federal officer or employee, such litigation is not barred by sovereign immunity.

4. The Political Question Doctrine

Another bar to court consideration of these cases is the "political question" doctrine, whereby the judicial branch abstains from deciding issues more appropriately dealt with by the "political" branches of the U.S. Government: The Congress and the executive.

For example, the President enjoys a constitutional grant of power in the conduct of foreign relations. 208 Elaborating on the necessity for

200 See c.g., New York v. Ruckelshaus, supra; Campaign Clean Water, Inc. v. Ruckelshaus, supra.

201 Id.

202 See, e.g., San Francisco Redevelopment Agency v. Nixon, supra; Housing Auth. of City and County of San Francisco v. H. U.D., supra.

203 369 U.S. 643 (1962).

204 369 U.S. at 647.

205 Land v. Dollar, supra.

206 See, New York v. Ruckelshaus, supra.

207 See Brief of Appellant Acting Administrator of the United States Environmental Protection Agency, New York v. Ruckelshaus, No. 71-1705 (D.C. Cir.) at 31.

208 Art. II, §§ 2, 3.

judicial abstinence in the conduct of foreign relations, the Supreme Court has said:

The president, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.209

The Court has likewise abstained from intruding upon powers properly exercised by the Congress, e.g., the decision as to what government is the established one in a State and whether or not it is republican in form,210 and the control over the promulgation and adoption of constitutional amendments.211

The case of Baker v. Carr, 212 in which the Supreme Court held that the equal protection clause of the 14th amendment grants the Court the power to compel reapportionment in State legislatures, sets forth the modern criteria for determining what is, or is not, a "political question":

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 manageable standards. for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility 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 embarrassment from multifarious pronouncements by various departments on one question.213 Judge Oliver J. Carter of the U.S. District Court for the Northern District of California has held that a suit against the President to compel him to go forward with a congressionally mandated housing program may not be brought because it is an "intragovernmental confrontation." 214 He referred to the proposition that a U.S. district

209 C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1948).

210 Luther v. Borden, 7 How. 1, 42 (1849).

211 Coleman v. Miller, 307 U.S. 433, 456 (1938).

212 369 U.S. 186 (1962).

213 Id., at 217.

214 San Francisco Redevelopment Agency v. Nixon, supra.