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 gov ernment'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 C-71-7735-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), ass đ 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 execu tive 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,

Housing and Urban Affairs, on Withholding of Funds for Housing and Urban Development Programs, Fiscal Year 1971, 92nd Cong., 1st Sess.; Hearings before Subcommittee of the House Committee on Appropriations, Department of Transportation, 92nd Cong., 1st Sess., pp. 437-45; Hearings before Subcommittee on Separation of Powers of the Committee on the Judiciary on Executive Impoundment of Appropriated Funds, 92nd Cong., 1st Sess. Regarding federal-aid highway funds, Congress has not purported to impose any mandatory spending requirements on the Executive. Although it has demonstrated in other provi sions of the Federal-Aid Highway Act of 1970 that it was well aware of the dif ference between hortatory and mandatory language, Congress has deliberately refrained from utilizing mandatory language. As there are available to the Court no judicially discoverable and manageable standards or guidelines regarding the Executive's discretion, and as the question presented is one for resolution by the executive and legislative branches, judicial intervention would be both inappro priate and unnecessary.

IV. SUMMARY JUDGMENT SHOULD BE GRANTED SINCE THERE ARE NO DISPUTED QUES TIONS OF FACT AND IT IS CLEAR THE DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW

Defendants have demonstrated above that the complaint fails to allege any facts to support the conclusory allegations that defendants have breached a statutory duty owed to the plaintiff. In fact, as has been more fully set forth above, defendants have established, as supported by the Affidavit of John R. Provan, that the imposition of limitations on the rate at which federal-aid highway funds are made available for obligation represents a reasoned and lawful exercise of the Executive's constitutional and statutory duties. There can be no dispute as to the material facts of this case, and accordingly, defendants are entitled to summary judgment.

CONCLUSION

For the foregoing reasons, the Court should enter a judgment dismissing this action or in the alternative granting defendants' motion for summary judgment. Respectfully submitted,

HARLINGTON WOOD, Jr. Assistant Attorney General. JOHN K. Grisso,

U.S. Attorney.

HARLAND F. LEATHERS,

CHARLES W. GAMBRELL

Assistant U.S. Attorney. DENNIS G. LINDER,

Attorneys, Department of Justice, Attorneys for Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

SOUTH CAROLINA COLUMBIA DIVISION

NO. 72-940

SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, PLAINTIFF,

v.

JOHN A. VOLPE, SECRETARY OF TRANSPORTATION, AND CASPAR W. WEINBERGER, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, DEFENDANTS

AFFIDAVIT OF JOHN R. PROVAN

John R. Provan, being duly sworn, deposes and says:

1. I am employed by the Department of Transportation, Federal Highway Administration (FHWA), as Associate Administrator for Administration. I a responsible for all administrative support functions within FHWA, including policies, procedures, and controls relating to budget and finance. I have been in charge of this office and predecessor offices since 1968.

2. I have personal knowledge of the facts in issue in this litigation. A statement of these facts follows:

3. Biennial Federal-aid Highway Acts provide annual authorizations of funds for each fiscal year which are apportioned to the States on or before January 1 next preceding the commencement of each fiscal year in accordance with 23 U.S.C. 104. Exhibit 1 lists Federal-aid highway funds authorized for the fiscal years 1967 through 1973, inclusive, and the amounts apportioned to South Carolina from these authorizations.

4. However, during the fiscal year the States can obligate only an amount for which project approval will be given by the Secretary. The obligation level for Federal-aid highways during a fiscal year is estimated in the President's Budget as submitted to the Congress in January of each year or as subsequently modified during the fiscal year. The Budget is submitted pursuant to the Budget and Accounting Act, 1921. (31 U.S.C. 1 et seq.). The statute requires the President to include in the Budget estimated expenditures and proposed appropriations necessary in his judgment for the support of the Government for the ensuing fiscal year, and such other financial statements and data as in his opinion are necessary or desirable in order to make known in all practicable detail the financial condition of the Government. The Budget estimates take into account the fiscal year apportionments authorized by Federal-aid highway legislation, the condition of the Highway Trust Fund, the status of the economy, the need for control of inflationary pressures (including construction cost increases), and any other budegtary considerations.

5. The amounts available for obligation during a fiscal year are apportioned initially by the Office of Management and Budget to the Federal Highway Administration, usually on a quarterly basis, as required by the so-called "AntiDeficiency Act" (31 U.S.C. 665). The apportionments by the Office of Management and Budget are then released to the States by the Federal Highway Administration on a proportional basis after taking into account the carryover balances of obligational authority from the prior year, if any. The distribution to the States, other than the carryover balances, is proportional to the original apportionment by the Secretary of funds authorized for the fiscal year. Balances of funds apportioned to the States and not included in releases remain available to the respective States for obligation later in accord with subsequent releases. 6. Exhibit 2 depicts the Federal-aid highway funds authorized and released for obligation from FY 1966 to FY 1973 in terms of National totals. Exhibit 3 provides similar data for South Carolina.

7. Highway Trust Fund balances are available, as provided by appropriation acts, for highway program expenditures as needed. Section 209(e) (2) of the Highway Revenue Act of 1956, 70 Stat. 399, provides that the Secretary of the Treasury shall invest any Highway Trust Fund balances not required to meet current expenditures. Such investments may be made only in interest bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. The balance in the Trust Fund as of June 30, 1972, totaled $4,496,237,973.42. This is documented by Treasury Department Statement BA-R 1008 entitled "Status of Highway Trust Fund," which is issued periodically by the Division of Deposits and Investments [Exhibit 4].

8. Following is a detailed analysis of the Federal-aid highway funds authorized, apportioned, and made available to the States for obligation for the period June 30, 1965, through July 1, 1972:

9. On June 30, 1965, unobligated balances of Federal-aid highway funds apportioned to States totaled $2,012,781,459.42 and were available for obligation in FY 1966. Funds authorized for FY 1967 totaled $4.0 billion and were apportioned on August 30, 1965 [Exhibit 5]. Obligation authority releases were made in the amount of $1 billion each effective October 8, 1965 (IM 30-5-65) [Exhibit 6], January 3, 1966 (IM 30–1–66) [Exhibit 7], and April 14, 1966 (IM 30-3-66) [Exhibit 8]. Apportioned funds available to States for obligation during FY 1966 totaled $5,004,294,025.82. Unreleased apportionments at June 30, 1966, were $978.899.622.34.

10. On June 30, 1966, unobligated obligation authority totaling $1,029,358,233.82 was carried over and available for obligation in FY 1967. Apportionments unreleased as of June 30, 1966, were released for obligation on July 11, 1966 (IM