In essence, this action asks the court to supervise and direct the actions of the political branches of the Government on a matter clearly reserved to their judgment. 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. 305. 317 (1958).

Moreover, for the district court to do indirectly that which the Congrss has considered and rejected would be in patent contravention 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 res ognizes 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."

Because the relief sought by the Commission would require the courts to interfere in the relationship between the coordinate political branches, the case clearly involves a political question.

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. 187, 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 manageable standards for resolving it; or the impossibility of deciding without as 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 potentially of embarrassment from multifarious pronouncements by various departments on one question" [emphasis added].

There can be little doubt that the court is without any "judicially manageable” standards for determining whether apportioned highway funds should be expended.

The only other district court to consider this matter has squarely held that it had "no jurisdiction to consider such a claim [that impounded funds must be released] because it is a political question." Housing Authority of the City of San Francisco v. United States Department of Housing and Urban Development. N.D. Cal., No. C-71-1135, decided April 7, 1972 (Add. 36A, 40A).

That case involved the impoundment of appropriations made under the Housing Act of 1937 for urban renewal projects. The plaintiffs there contended, as does the Commission here, that "the result of withholding these funds injures and prejudices plaintiff *** from going forward with their total development programs ***" Id.. Add. 36A. The statute involved, also as here, containe! a section “describ[ing] the policy behind this Act [but] includ[ing] no mandate for HUD to use the full amount of authorized funds." Id., Add. 38A.

The district court, in dismissing the suit, first pointed out that "the nonmandatory language of this statutory scheme” precluded the plaintiff from showing that the Secretary exceeded his discretion in "not spending all the annex priated funds." Id.. Add. 37A. The Court then dismissed the action as involving a political question, holding:

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

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 judicially 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. McCormick, 395 U.S. 486 (1969)."

We submit that precisely the same situation is presented here, and requires the dismissal of the action.

While we believe that the grounds stated above clearly require reversal of the district court's judgment, we do not wish to be taken as conceding the correctness of the district court's jurisdictional rulings. The court held that jurisdiction over the complaint was provided by the mandamus statute, 28 U.S.C. 1361, and by the Administrative Procedure Act, 5 U.S.C. 701 et seq. (App. —). These holdings are not sustainable.

A. What we have shown as to the non-mandatory nature of the Federal-Aid Highway Act dispels, we believe, any basis for concluding that the mandamus statute provides a basis for jurisdiction over this action. 28 U.S.C. 1361 confers jurisdiction on the district court "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." It is only when that duty amounts to a "specific, unequivocable command," so "plainly prescribed as to be free from doubt," that mandamus is available. I.C.C. v. New York, New Haven and Hartford Railroad, 387 U.S. 178, 204 (1932). That plainly is not the case here, for the dicision as to the rate at which to expand the hundreds of millions of dollars apportioned under the highway act can hardly be characterized as a mere ministerial act.

b. The district court was apparently troubled by applying the mandamus statute to this situation, for at the conclusion of the trial it directed the Commission to amend its complaint to add the Administrative Procedure Act as a basis of jurisdiction (Transcript of Trial, p. 105). However, this statute does not provide any basis for jurisdiction over this complaint.

The Administrative Procedure Act provides that the "form of proceeding for judicial review is *** any applicable form of legal action *** in a court of competent jurisdiction." 5 U.S.C. 703, emphasis supplied. Thus, by its express language, the APA requires an independent grant of statutory jurisdiction. Cf. S. Rep. No. 752, 79th Cong., 1st Sess. As the Second Circuit earlier noted, the APA defines “the procedures and manner of judicial review of agency action, rather than * * * confer[ing] jurisdiction upon the courts." Ove Custavsson Congracting Co. v. Floete, 278 F. 2d 912, 914 (1960), certiorari denied, 364 U.S. 894 (1960).

This Court has squarely rejected the position taken by the district court, that the Administrative Procedure Act is an independent grant of jurisdiction. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F. 2d 529, 532 (1967). There this court held:

"This reliance on § 10 of the Administrative Procedure Act to establish jurisdiction below is misplaced. Section 10 of the Act does not confer jurisdiction upon the federal courts. Its purpose is to define the procedures and manner of judicial review of agency action rather than confer jurisdiction. Ove Gustavsson Contr. Co. v. Floete, 278 F. 2d 912, 914 (2nd Cir. 1960); Barnes v. United States, supra. Additionally, § 10 does not in itself amount to congressional consent to a suit against defendants whose right to assert the defense of sovereign immunity is discussed above, Chournos v. United States, 355 F. 2d 918 (10th Cir. 1964).”

The other circuits which have directly ruled on this point are generally in accord. Arizona State Dept. of Public Welfare v. Department of H.E.W., 449 F.2d 456, 464 (C.A. 9, 1971), certiorari denied, 405 U.S. 919 (1971); Zimmerman V. United States Government, 422 F. 2d 326, 330 (C.A. 3, 1970), certiorari denied, 399 U.S. 911 (1970); rehearing denied 400 T.S. 855 (1971) Pan American World Airways v. C.A.B, 392 F. 2d 483, 494 (C.A.D.C., 1968); Local 541 I.U.O.E. v. N.L.R.B. 328 F. 2d 850, 854 (C.A. 3, 1964), certiorari denied, 379 U.S. 826 (1964); Kansas City Power & Light Co. v. McKay, 225 F. 2d 924, 932 (C.A.D.C., 1955), certiorari denied, 350 U.S. 884 (1955); cf. Blackmar v. Guerre, 342 U.S. 512, 516 (1952). Since there is no other statute conferring jurisdiction, the APA does not provide a jurisdictional basis for this action.

The Supreme Court's decision in Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971), does not hold to the contrary. The Supreme Court's dis cussion of the Administrative Procedure Act, 401 U.S. at 410, is concerned solely with the reviewability of the Secretary's action, not the court's jurisdiction over the complaint. There is no discussion of the jurisdiction issue, either in the court's opinion or in the briefs of the parties. Certainly, had the Supreme Court intended to overrule the consistent line of authority cited above, it would have at least mentioned this issue. Overton Park, in short, does not support the district court's holding that it had jurisdiction under the Administrative Procedure Act.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

I hereby certify that on this 28th day of November, 1972, I served the foregoing Brief For The Appellants, by causing a copy to be mailed to counsel for the appellee, air mail, postage prepaid to:

Robert L. Hyder, Esquire

State Highway Building

Jefferson City, Missouri 65101

WILLIAM D. APPLER, Attorney.

Addendum

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 72-1512

STATE HIGHWAY COMMISSION OF MISSOURI, APPELLEE v. JOHN A. VOLPE, SECRETARY OF TRANSPORTATION, AND CASPAR W. WEINBERGER, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, APPELLANTS

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 am 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. I have personal knowledge of the facts in issue in this litigation.

2. By Instructional Memorandum 30-4-72 dated June 15, 1972 (see Exhibit 30), Federal Highway Administrator Turner advised Federal Highway Administration officials that obligation authority totaling $4.4 billion for the fiscal year 1973 was released effective July 1, 1972. Copies of the Instructional Memorandum were furnished to State highway departments. Missouri's share of the $4.4 billion distribution was $89,471,000. Therefore, effective July 1, 1972, all funds authorized and apportioned to Missouri for fiscal year 1973 and prior fiscal years were available to Missouri for obligation. In view of the fact that Missouri's balance of unobligated apportionments as of July 1, 1972, was approximately $80 million. the release also provided authority to obligate approximately $9 million from the fiscal year 1974 apportionment when made.

3. Although the Federal-Aid Highway Act of 1970 (P.L. 91-605) authorized appropriations for the Interstate System for fiscal year 1974, such funds cannot be apportioned until the Congress approves the Secretary of Transportation's estimate of the cost of completing the Interstate System in accordance with the provisions of 23 U.S.C. 104(b) (5). Congress has not yet approved the estimate.

The Congress has not authorized any funds for the other Federal-aid highway systems for fiscal year 1974. Bills which would have provided authorizations for fiscal year 1974 failed of enactment in the last session of Congress. Accordingly, no Federal-aid highway funds can yet be apportioned for fiscal year 1974.

DISTRICT OF COLUMBIA,
City of Washington, ss:

JOHN R. PROVAN.

The foregoing affidavit was subscribed and sworn to before me on this 22d day of November 1972.

JIM A. BLOON,

Notary Public.

My commission expires December 31, 1973.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNO. 72-1512

THE STATE HIGHWAY COMMISSION OF MISSOURI, PLAINTIFF-APPELLEE, V. JOHN VOLPE, Secretary of Transportation, and CASPAR A. WEINBERGER, Director of the Office of Management and Budget, DEFENDANT-APPELLANTS

MOTION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

Amici curiae Senator Samuel J. Ervin, Jr., et al., by their attorney G. Richard Fox, hereby move this Court pursuant to Rule 29 of the Federal Rules of Appellate Procedure for leave to file the brief amicus curiae submitted herewith. 1. Seventeen of the amici are United States Senators, and they include the Majority Leader and Assistant Majority Leader, thirteen of the sixteen standing committee chairman, both Senators from Missouri where the case arises, and the Chairman of the Joint Committee on Congressional Operations. Set forth on Appendix A hereto are their names and positions. The only three committee Chairmen who are not on the brief-Senator Russell B. Long, Senator John A. Stennis, and Senator Herman E. Talmadge could not be contacted in time to permit them to join the other chairmen. Because the argument is set for January 8, 1973, it was determined not to delay the filing of this motion any further. Thus, the absence of these three Senators signifies only a lack of opportunity to consider this matter, and not a rejection of the positions taken in the brief. 2. Senator Samuel J. Ervin, Jr., as Chairman of the Separation of Powers Subcommittee of the Senate Judiciary Committee, has held extensive hearings on the issue of executive refusal to spend appropriated funds, the legality of which is directly raised by this appeal. Thus his interests in this controversy, in addition to those which he has as a member of the Senate and as Chairman of the Government Operations Committee, are particularly great.

3. Three of the amici are members of the United States House of Representatives: J. J. Pickle, Benjamin Rosenthal, and Morris K. Udall. They have also exhibited particular concern over the practice of officials of the executive branch refusing to spend money appropriated by Congress. The final amicus is Public Citizen, Inc., a non-profit organization of which Ralph Nader is the founder and President. Public Citizen is supported by contributions from the general public, and its activities include efforts to insure that members of the executive branch faithfully carry out the laws as written by the Congress. It is a plaintiff in a number of lawsuits and has filed briefs amicus curiae in others where the actions of the executive branch under Federal statutes and the United States Construction have been challenged.

4. In recent years the executive branch has asserted a right, for antiinflationary reasons, to refuse to spend funds which Congress has authorized or appropriated, and this case, which challenges that practice, is the first to reach a Circuit Court. Other cases are in the lower courts, and within the last few weeks there have been a number of assertions by the executive branch of the right to withhold funds in situations similar to that involved here. Thus, the decision in this case will be of great significance not only to the Federal-Aid Highway program, but to many other Federal programs for which funds have been or will be withheld.

5. The amici who are members of Congress are deeply concerned about the attempted erosion of their power by the executive branch and have prepared this brief for the Court's consideration to demonstrate that such attempts are unlawful and should not be permitted to continue.

90-538-73-63

6. Because of their interests in and knowledge of these problems, the amici believe that their participation in this appeal would be of assistance to the Court. In addition, the defendants relied heavily on legislative history materials in their brief, and many of these are not readily available to counsel for the plaintiff, but are available to counsel for the amici.

7. Counsel for the amici curiae have been authorized to advise the Court that plaintiff consents to the filing of the accompanying brief. Counsel for the de fendants has stated that it will not consent to the filing thereof, and therefore amici are moving this Court for leave to file their brief.

8. There is no dispute that the issues raised on this appeal are of great inportance. The amici curiae have significant interests in them, and they are able to assist the Court in its resolution of them, and thus should be permitted to file their brief on this appeal.

9. Amici curiae do not ask permission to participate in oral argument on this appeal, but will do so should the Court so request.

Respectfully submitted,

Dated: January 2, 1973.

APPENDIX A

G. RICHARD Fox,
St. Louis, Missouri.

Senator Samuel J. Ervin, Jr., Chairman, Government Operations Committee Senator James O. Eastland, President Pro Tempore, Chairman, Judiciary Committee

Senator Michael J. Mansfield, Majority Leader

Senator Robert C. Byrd, Assistant Majority Leader

Senator Jennings Randolph, Chairman, Public Works Committee

Senator John L. McClellan, Chairman, Appropriations Committee

Senator Howard W. Cannon, Chairman, Aeronautical and Space Sciences Committee

Senator Thomas F. Eagleton, Chairman, District of Columbia Committee
Senator J. W. Fulbright, Chairman, Foreign Relations Committee
Senator Vance Hartke, Chairman, Veterans' Affairs Committee

Senator Henry M. Jackson, Chairman, Interior and Insular Affairs Committee
Senator Gale W. McGee, Chairman, Post Office and Civil Service Committee
Senator Warren G. Magnuson, Chairman, Commerce Committee

Senator Lee Metcalf, Chairman, Joint Committee on Congressional Organization Senator John Sparkman, Chairman, Banking, Housing and Urban Affairs Committee

Senator Stuart Symington

Senator Harrison A. Williams, Jr., Chairman, Labor and Public Welfare Committee

No. 72-1512

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

THE STATE HIGHWAY COMMISSION OF MISSOURI, PLAINTIFF-APPELLEE,

V.

JOHN A. VOLPE, SECRETARY OF TRANSPORTATION OF THE UNITED STATES, AND CASPER W. WEINBERGER, DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET OF THE UNITED STATES, DEFENDANTS-APPELLANTS.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION

Brief of Amici Curiae

Senator Samuel J. Ervin, Jr., Chairman, Government Operations Committee: Senator James 0. Eastland, President pro tempore, Chairman. Judiciary Committee; Senator Michael J. Mansfield, Majority Leader, Senator Robert C. Byrd. Assistant Majority Leader; Senator Jennings Randolph, Chairman. Public Works Committee; Senator John L. McClellan, Chairman, Appropriations Committee; Senator Howard W. Cannon, Chairman, Aeronautical & Space Sciences Committee; Senator Thomas F. Eagleton, Chairman. District of Columbia Committee; Senator J. W. Fulbright, Chairman, Foreign Relations Committee;