denied, 393 U.S. 1000 (1968); see REA v. Central Louisiana Elec. Co., 354 F.2d 859, 865 (5th Cir.), cert. denied, 385 U.S. 815 (1966); Attorney General's Manual on the Administrative Procedure Act at 94-95 (1947). But, this case does not involve such an exercise of discre tion; it involves a wholly unauthorized and therefore unlawful action beyond the discretion of the Department. The Department has gone "beyond the outer perimeter of the authority vested in [it] by the statute [and] 'outside the range of permissible choices contemplated by the statute.'" Alabama Power Co. v. Alabama Elec. Cooperative, Inc., supra, 394 F.2d at 675. C. Sovereign Immunity As a general principle, the sovereign, i.e., the United States, cannot be sued without its consent. Con sent may be given both explicitly and implicitly, however, and the general rule immunizing the sovereign from suit is not without several broad exceptions. At least two United States Courts of Appeals (see Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 873-74 (D.C. Cir. 1970)) take the position that if the More action complained of meets the tests of reviewability Administrator. 416 F.2d at 651. Perhaps, the clearest statement of this exception can be found in Knox Hill Tenant Council v. Washington, 448 F.2d 1045, 1052 (D.C. Cir. 1971), where the United States Court of Appeals for the District of Columbia Circuit noted: "There is noth ing new about judicial entertainment of suits which or in conflict with, the responsibilities laid upon them In the present case, the gravamen of any complaint would be that the Department has acted beyond its constitutional and statutory authority and has taken steps inconsistent with Congress' mandate under the RE Act by terminating the section 4 loan program. Under these circumstances, we are of the view that sovereign immunity would not constitute a bar to the action. - D. Justiciability The "Political In the San Francisco Housing Authority case, discussed earlier, the plaintiff contended that the President's action impounding part of the funds appropriated for urban renewal projects constituted "an unconstitutional item veto." 340 F. Supp. at 656. The court characterized this argument as a request for a determination "of when the executive's use of his admitted dis cretion goes too far and becomes an abusive item veto." As thus presented, the court held the issue to be "one without justiciable standards or guidelines." Ibid. Relying on the Supreme Court's decision in Baker v. Carr, 369 U.S. 186 (1962), the court refused to consider the argument "because it is a political ques tion." Id. at 657. While the action of the Department in our case may also be characterized as an "item veto," we believe substantially different issues are presented here, and in our view the questions raised in this case would be considered justiciable. The issue of justiciability has two components: First, the plaintiff must demonstrate that the duty allegedly owed to him by the defendant can be defined and determined and that the issue being raised is subject to judicial resolution and judicial relief. See Powell v. McCormack, 395 U.S. 486, 516-17 (1969). In the present case, we think there is little difficulty in defining the duty being breached it is the duty of REA to comply with Congress' mandate under the RE Act to implement a program of two percent loans. Nor do we believe that there would be difficulty in framing appropriate relief; both mandatory or prohibitory injunctive relief or a declaratory judgment could be " ARNOLD & PORTER - 71 22/ fashioned in quite conventional terms. Second, the plaintiff must also satisfy the court that the issue presented does not constitute a "politi- "Prominent on the surface of any case held 22/ The Administrative Procedure Act expressly permits § 2201, and § 1361 of the Judicial Code, 28 U.S.C. § 1361, agency thereof to perform a duty owed to the plaintiff." 90-538 073 44 |