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a measure to require the Executive to release highway construction funds before foreign-aid funds could be expended, and that the Congress rejected the measure as to highway funds. Congress has deliberately chosen to use hortatory language and has declined to enact legislation seeking to impose mandatory spending requirements upon the Executive.

Individual Members of Congress have recognized that the legislation presentis in force is not mandatory in nature. In a colloquy between Secretary of Trans portation Volpe and members of the Senate Committee on Public Works during hearings on the Federal-Aid Highway Act of 1970, Committee Chairman Senatric Randolph stated that “tiere may be a desire within the Congress to write certain mandatory legislation in reference to the outbacks which occurred not only in this administration, but in at least one prior administration." Il carings brfire the Subcommittee on Roads of the Senate Committee on Public Torkx On Federal Highway Act of 1970, 91st Cong.. 2d Sess., p. 679. During Senate consideratios of S. 3939, the bill to provide for a Federal-Aid Highway Act of 1972. sveral members of the Senate addressed themselves to Section 133 of the bill, which provided for "alternative procedures" which were designed in part to prevent tbe withholding of apportioned highway funds" by the Executive. S. Rept. 92– Jox1. 92nd Cong., 2d Sess.. n. 18. Senator Buckley, a member of the Senate Committee on Public Works which issued S. Rept. 92–1081, stated in his Individual and Supplemental Views to the report the following:

Control over the rate of spending on the federal highway program is everrised through the level of authorization (and appropriation) established hr Code gress and through the rate at which these funds are released his the Executive Branch within the constraints of its budget and priorities.

... Although most of these issues did not come to a vote in Committre. I want to emphasize here that, to the extent we commit more funds to existing and nes highway programs, we diminish our resources for alternatives, both in trans portation and otherwise.

In this connection, I joined with Senator Cooper and others to strike sectina 133 ... I helieve such a provision unwisely restricts a President in his options for confining federal expenditures to the limits of his budget in any giren fixal year. (S. Rept. 92–1081, pp. 64–65). During debate on the Senate fioor regarding S. 3939, which was not enacted into law by the Ninety-Second Congress prior to its adjournment. it was . ognized that the language of the present legislation does not provide that States are entitled to the use of funds immediately upon apportionment, but that an amendment of the Federal-Aid Highway Art would be necessary. Senator Rondolph stated the following (118 Cong Rec. S. 14826):

The alternative procedure of section 133 also seeks to eliminate the witbholding of highways funds. It provides that once funds are apportioned to the States, the States have the authority to use them.

In offering an amendment to strike section 133, Senator Cooper stated that “[i]f a President were required to spend all of the money that Congress authorizes and appropriates, we would be in a worse fiscal situation than re are.” 118 Cong. Rec. S14848. Senator Bennett stated the following (118 Cong. Rec. S15328):

I firmly support the administration position in opposition to this new chapter [Chapter 1-A. proposed by section 133). Its effect unon the Federal-aid highway program. I believe, will be most unfortunate. And, in the broader scope of managing Federal expenditures, there is no question that it would attempt to deny to the erecutire branch the authority to withhold funding, even in the free of economic crisis where such withholding would be the most prudent war to proceed.

I believe that any President should have sufficient management flexibility to determine program funding levels within the overall constraints of fisal responsibility. As the distinguished Senior Senator from Kentucky states last week in his discussion of this section of the bill —

"If a President were required to spend all of the money that Congress author. izes and appropriates, we would be in a worse fiscal situation than we are."

In a House debate on the conference report to S. 2770, the Water Pollution Control Act. the question of the rate of obligation of highway trust funds arose. Representative Harsha. who was at that time the ranking minority member of the Subcommittee on Roads of the House Public Works Committee, discussed lap

uage included in the Water Pollution Control Act to "emphasize the President's lexibility to control the rate of spending," and stated the following:

Expenditures from the highway trust fund are made in accordance with simlar contract authority provisions to those in this bill. Obviously expenditures and appropriations in the water pollution control bill could also be controlled, However, there is even more flexibility in this water pollution control bill be. ause we have added “not to exceed" in section 207, as I indicated before.

Surely, if the administration can impound monies from the highway trust und which does not have the flexibility of the language of the water pollution control bill, it can just as rightly control expenditures from the contract authorty produced in this legislation by the same means.

118 Cong. Rec. H9122. Representatives Jones of Alabama and Ford of Michi. zan agreed with and supported Representative Harsha's acknowledgement of he Executive's power to control the expenditure rate of authorized funds in che absence of mandatory language by Congress. Id. at H9123. Thus, it has been indicated by Members of Congress who recognize and support the Execuire's authority to regulate spending of authorized funds, and by those Con

ressmen who favor restrictions on such power that, with regard to the Federal-aid highways program, no restriction or mandatory language is presantly imposed upon the Executive, and additional legislation to amend, supersede, or delete the hortatory language of 23 U.S.C. $ 101(c) will be necessary of Congress is to seek to impose a mandatory duty upon the Executive.

Congress is, of course, also fully aware of the rule that an appropriation iction in itself does not constitute a mandate to spend. See 42 Op. Atty Gen. 32 (1967). Similarly, legislation granting contract authority is a permissive grant, and not an attempt to require the Executive to expend funds. The classic exposition on this characteristic of appropriations legislation is contained in the House Appropriations Committee report on the General Appropriation Bill, 1951, submitted by the late Chairman Clarence Cannon:

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Economy neither begins nor ends in the Halls of Congress. * * * The Congress * decides the maximum amounts which must be appropriated for * * * various activities, and the annual appropriation bill provides the sums so determined by the Congress.

Appropriation of a given amount for a particular activity constitutes only I ceiling upon the amount which should be expended for that activity. * * * [it is the) responsibility [of every Government official] to so control and administer the activities under his jurisdiction as to expend as little as possible out of the funds appropriated. [H1 Rept. 1797, 81st Cong., 2d Sess., p. 9.]

Or, as the then-Senator Harry S. Truman observed in 1943 :

When the Congress appropriates funds it gives the executive branch an authority to incur obligations. Certainly none of us hold that we give a mandate to expend the funds appropriated. We expect the funds to be used only where needed, and not in excess of the amount appropriated, to carry out some phase of law. [89 Cong. Rec. 10362].

An appropriation act thus places an upper and not a lower limit on expenditures. The duty of the President pursuant to Article II, Section 3 of the Constitution, to see that the laws are faithfully executed does not require that funds made available must be fully expended. See Opinion of the Comptroller General B-160891 (February 24, 1967), attached hereto as Appendix B for the Court's convenience. This principle has received statutory recognition in the Anti-Deficiency Act, 31 U.S.C. § 665 (c), which authorizes the executive branch to effectuate savings of appropriated funds, and in 31 U.S.C. $ 701, which provides that unexpended appropriated funds shall revert to the Treasury.

Congress enacted, in 1970, a ceiling on Federal Government expenditures for Fiscal Years 1970 and 1971. P.L. 91-305, titles IV, V; 84 Stat. 376, 405-07. In order to conform to such limitations, the obligational level of federal-aid highway funds was reduced. (See Provan affidavit, paragraph 16, and Exhibits 32–34 thereto). An analogous situation arose in the early 1940's when the Aronomy of the United States shifted first to defense and later to war production. At that time the President directed that projects having a lower priority would have to be postponed or even cancelled notwithstanding the availability of appropriated funds. In response to complaints about the cur

tailment by the Bureau of the Budget of certain programs of the Agricultura Marketing Administration, President Roosevelt set forth the powers ar? responsibilities of the executive branch in this area :

It should, of course, be clearly understood that what you refer to as “the pian tice of the Bureau [of the Budget] of impounding funds duly appropriated by the Congress' is in fact action by the Chief Executive, and has two purposes. The first purpose is compliance with the Anti-Deficiency Act, which requires tha appropriated funds be so apportioned over the fiscal year as to insure again deficiency spending. * * * Secondly, the apportionment procedure is used as a positive means of reducing expenditures and saving money wherever such sarins appear possible.

While our statutory system of fund apportionment is not a substitute for iter, or blanket veto power, and should not be used to set aside or nullify the ti pressed will of Congress, I cannot believe that Congress as a whole would take exception to either of these purposes which are common to sound business máragement everywhere. In other words, the mere fact that Congress, by the appropriation process, has made available specified sums for the various pro grams and functions of the Government is not a mandate that such funds mis be fully expended. Such a premise would take from the Chief Executive erers in centive for good management and the practice of common sense economy. This is particularly true in times of rapid change in general economic conditions an! with respect to programs and activities in which exact standards or lerels of operation are not and cannot well be prescribed by statute.

In summary, the very use of hortatory language by Congress reflects Congren sional understanding that, during the course of a long-range program, sitak: tions may arise in which the stated considerations of policy might hare to gir way to more compelling considerations. It was in this spirit that Presiden Johnson signed into law the Federal-Aid Ilighway Act of 1968, which included the “sense of Congress" language now contained in 23 U.S.C. $ 101 (C1, Voting his appreciation of the sense of Congress as expressed in the bill, the President also emphasized his responsibilities to scrutinize all government programa including highway programs-to gauge their impact on the general federal sjer.}ing limitations imposed by Congress (P.L. 90–364 of June 28, 1968). See 4 Pra Doc. 1277, 1278 (1968). On the face of the complaint and the statutes involved the complaint fails to set forth a claim upon which this Court can grant relie! B. All Funds Authorized and Apportioned to South Carolina for Fiscal Tear

1972 and Prior Years Have Been Alade Available to South Carolina Plaintiff generally maintains that it has not been permitted to obligate the full amount of funds apportioned to it. Plaintiff's complaint also fails to state i claim upon which relief can be granted in this regard, for the affidarit of Joto R. Provan and exhibits thereto clearly establish that South Carolina had. 981 June 30, 1972, obligated all of its funds authorized and apportioned for lies Year 1972 and prior years, and had also obligated over $4 million of the Fim... Year 1973 funds apportioned to it. (Provan affidavit, para. 30). 23 U.S.C. $11 (a) provides that upon certification by the Secretary of Transportation of the various apportionments, “such sums shall be available for expenditure under th provisions of this title.” Further, such sims continue to be available for Stat: expenditure for a period of two years after the fiscal year in which ther there authorized. 23 U.S.C. $ 118(b). With respect to the availability of funds fine expenditure, 23 U.S.C. $ 118(1) provides that “[s]uch sums for any fiscal prêt shall be deemed to be expended if a sum equal to the total of the summO?" portioned to the State for such fiscal year and previous fiscal years is coreres! formal project agreements providing for the expenditure of funds autborizių

[Emphasis adderl]. As discussed abore, expenditure of such funds hit the States is contingent upon project approvals by the Secretary. 23 U.S.C. $10313 It is only after such approval by the Secretary that the United States incurs at obligation to the State. Thus, the language of 23 U.S.C. $ 118 (a), when viewed in the context of the entire Federal-Aid Highway Act, does not mean that the States acquire the right to obligate federal funds immediately upon apportica ment. Rather, such funds are available during the period prescribed br 3 U.S.C. $ 118 for obligation by the Secretary's discretionary act of project al

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1 This letter is reproduced in part in Supplemental National Defense Appropriaties 1941. Hearings before a Subcommittee of the Senate Committee on Appropriatinos, : Cong., 1st Sess., on H.R. 3598 (P.L. 78-216), p. 739.

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

4. 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. SS 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 listrict 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 :hanges in the law, and did not enlarge the scope of mandamus relief. See VcEachern v. United States, 212 F. Supp. 706, 712 (W.D. S. Car. 1963), affirmed n part, vacated in part on other grounds and remanded. 321 F. 2d 31 (4th Cir. 1963); Prairie Band of Pottauatomie Tribe of Indians v. Udall, 355 F. 2d 364, 367 (10th Cir. 1966), cert. denied 385 U.S. 831; Carter v. Scamans, 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, 112 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 Longshorcmen's : Inion v. Boyd, 347 U.S. 222 (1954); Public Service Comm'n v. Wycoff Co., 344

C.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 er 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 er rel. JcLennan 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 (1810). 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.

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 couli not be controlled by mandamus, the Court noted that "interference of the courts with the performance of the ordinary duties of the executive departments a the government, would be productive of nothing but mischief * * *.” 39 U.S. & 516.

Massachusetts v. Connor, 248 F.Supp. 656 (D. Mass. 1966), aff'd per carica, 366 F.2d 778 (1st Cir. 1966), is also markedly apposite to the instant cat There, the State sought to compel the Secretary of Commerce to approre i voucher for payment representing federal participation in right-of-was cali with respect to an approved interstate highway system project. The disoite 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 jurisdictie 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 is appropriations requests was recently outlined by the President. See 6 Pres. Doc. 940 (July 20, 1970) (Provan Affidavit, Exh. 34). See also the President: Veto Message on the Water Pollution Control Act of 1972, 8 Pres. Doc. 1531, 1.1. (October 17, 1972). In deciding whether to spend appropriated funds, considera: tion must be given by the Executive not only to legislative authorizations am appropriations, but also, as the affidavit of John R. Provan indicates, to smo factors as the effect of the authorized expenditures on the national como and their relation to other programs important to the national welfare. (Prural affidavit, pa ra. 4).

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

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

The expenditure of appropriations is often more than a mere ministerial ac such as paying a claim or entering the minutes of a court. The President des budgetary responsibilities to effect economies and avoid deficiencies, as well 3: far-reaching responsibilities under the Employment Act of 1946 for condition

: in the national economy. Presidential judgment that a Nike-Zeus anti-missisystem contains too many technical weaknesses to justify deployment, i additional funds appropriated for the Air Force would strain the economy, that producing of B-70 bombers is unwarranted in view of existing missi. capability is no mere ministerial act. Such divisions require discretion ari judgment thus severely limiting the appropriateness of judicial intereferent

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 $191 millio toward production of the aircraft-a figure $320 million higher than the dd ministration's request. President Kennedy, insisting upon “the full power and discretions essential to the faithful execution of [his] responsibilities as President and Commander-in-Chief," was successful in turning back this legie

. lative challenge. The bill was changed so that the President was "authorized" (1 spend the funds, rather than directed. If Congress hesitates to push toward ! 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.

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