7 Fair empl.prac.cas. 643, 7 Empl. Prac. Dec. P 9292 Phyllis Schlafly v. John A. Volpe, Secretary of Transportation

FAIRCHILD, Circuit Judge

(dissenting in part, concurring in part).

I believe that plaintiffs lack standing to challenge this suspension of federal highway funds, and that, on the allegations in the complaint, the relief sought would impinge on sovereign immunity. Therefore, I respectfully dissent from the reinstatement of the count against the federal defendants. As to the state defendants, I concur in the result.

Plaintiffs claim injury from an act of a federal official allegedly ultra vires his statutory power. With respect to standing, “[t]he first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.” Data Processing Service v. Camp, 397 U.S. *285 150, 152 , 90 S.Ct. 827, 829 , 25 L.Ed.2d 184 (1970). I do not agree that payment by plaintiffs of the federal motor fuel tax, proceeds of which support highway construction, amounts to an injury in fact. The tax is one of general applicability and not contingent on the expenditure of federal funds in the fuel purchaser’s locality. See 26 U.S.C. §§ 4041 , 4081. Plaintiffs aver that, in addition to being residents and taxpayers, one, an Association of Commerce, is a not-for-profit corporation, and one is a business manager of a union. They aver that the projects were “important” and “vitally needed.” Arguably, the delays in highway improvements in the vicinity of plaintiffs’ residences could constitute a type of noneconomic injury. The complaint, however, does not spell out any way in which the delay has actually harmed plaintiffs. The Supreme Court has indicated some strictness in requiring such allegations when standing depends on a claim of noneconomic injury. See Sierra Club v. Morton, 405 U.S. 727, 734-735 , 92 S.Ct. 1361 , 31 L. Ed.2d 636 (1972).

Moreover, even if the plaintiffs have standing, the averments of the complaint fall short of demonstrating that the relief they seek does not invade sovereign immunity. Federal officials set each state’s highway allocation and may refuse to authorize particular contracts. However, the power to channel federal funds to specific projects belongs to the state. See 23 U.S.C. §§ 104-105 . The plaintiffs have not alleged that the suspension of funds for Madison County construction resulted in any money being withheld in the federal treasury. Their complaint is consistent with the federal defendants’ position that they paid Illinois the full amount of its allocation, but refused to permit any .expenditure in Madison County. If that is the situation, plaintiffs’ claim is, in essence, that defendants must obtain a new, supplementary appropriation of federal money and must direct that it be spent in Madison County. The federal defendants lack the power to direct the expenditure in Madison County. See 23 U.S.C. § 105 . The appropriation of additional funds would require affirmative action and “disposition of property admittedly belonging to the United States.” Such relief is outside the exception to the sovereign immunity doctrine delineated in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949). See State of Hawaii v. Gordon, 373 U.S. 57 , 83 S.Ct. 1052 , 10 L.Ed.2d 191 (1963). As the plaintiffs have not alleged that the federal defendants control any specific funds which, but for the freeze, Illinois would have received, they have not avoided the bar of sovereign immunity.

I would affirm the district court’s dismissal of the complaint.