Petition for Writ of Certiorari — Train v. Campaign Clean Water, Inc.

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INDEX

Page

Ce es cans wi cinta 1

ees adhe wauoees 2

CLG ei tice uke aca cnnenn 2

tL idk wena amore 3

PERN S. ctuaneco een TAS ca hy mR ee ep 5

I Cr oes ane ee cen S

Argument:

NN SER eh ER SIE OE el ae 11

I. Sections 205(a) and 207 of the Act au-

thorize the Administrator to control

the rate of spending under the Act by

allotting less than the full amounts au-

thorized to be appropriated________ —- 14

A. The language of Sections 205(a)

and 207 does not require the

Administrator to allot all the

amounts authorized______-___- 14

B. The legislative history of the

“Water Pollution Control Act

Amendments of 1972 shows that

Congress intended to give the

President, acting through the

Administrator, authority to con-

trol the rate of spending_--_-_- 15

C. The authority to control the rate of

spending may be exercised by

allotting less than the amounts

authorized to be appropriated __

(1)

te

to

552-253—74——-1

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2

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3

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4

4

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II

Argument—Continued

II. In Campaign Clean Water the Court of

Appeals should have directed dismissal

Se, py ee AC NCAR eels

A. Sovereign immunity bars this suit_

1. The suit is against the

sovereign because it

seeks to compel a gov-

ernment official to take

affirmative action look-

ing toward the spending

of government funds____

2. The case is not within the

exception to sovereign

immunity for situations

where the government

official acts beyond his

statutory authority or

unconstitutionally ______

3. The Administrative Pro-

cedure Act does not

waive the United States’

sovereign immunity _____

B. The only basis upon which the

district court might have au-

thority to hear this suit—the

Administrative Procedure Act—

is inapplicable because the chal-

lenged action involves s matter

committed to agency discretion_

RI asa pease til cMteuman inn © lebieaieica shox

NE, wi vadadcbankdadiakaeeunnehcewacne«

Page

30

31

31

J+

29

48

49

lil

CITATIONS

Cases: nai

Baker v. Carr, 369 U.S. 186_--------------- 47

Blackmar v. Guerre, 342 U.S. 512_---------- 11, 39

Brown v. Ruckelshaus, 364 ¥. Supp. 258 - - - - - 23

Citizens to Preserve Overton Park v. Volpe,

Te a sad paki a dee wose ene~ee 11, 47

Colegrove v. Green, 328 U.S. 549- - - -------- 47

Coleman v. Miller, 307 U.S. 483 - - - --------- 47 ;

Colson v. Hickel, 498 F. 2d 1046_----------- 39

Cyrus v. United States, 226 F. 2d 416_------- 38

Dugan v. Rank, 372 U.S. 609--- ------------ 32

Estrada v. Ahrens, 296 ¥’. 2d 690---- -------- 38

Hawaii v. Gordon, 373 U.S. 57__ 10, 32, 33, 34, 35, 37 :

Johnson v. Robison, No. 72-1297, decided

Marek 4, 1974... ...0--. 24-45 == 42 :

Kendall v. United States ex. rel. Stokes, 12 4

AE Pilecah ate oes alae > Re RPPEr eee mena Rees 37 :

Kletschka v. Driver, 411 VF. 2d 436_---------- 39 ;

Larson v. Domestic & Foreign Commerce Hi

Corp., 337 U.S. 682-_----- 10-11, 32, 34-35, 37 3

Littell v. Morton, 445 F. 2d 1207..---------- 38 ;

Malone v. Bowdoin, 369 U.S. 643----------- 32, 37 J

Martin-Trigona v. Ruckelshaus, N.D. Ill. FE

No. 72-C-3044, June 29, 1973_----------- 22 b

Motah v. United States, 402 F. 2d 1_-------- 38

Panama Canal Co. v. Grace Line, Inc., 356 :

oo ea ete taney 11, 40, 42 F

Scanwell Laboratories, Inc. v. Shaffer, 424 F. E

OE RAR etree nn aEr aye 38 :

Secretary of Agriculture v. Central Roig Re- e

fining Co., 338 U.S. 604_----------------- 43 :

Soriano v. United States, 352 U.S. 270_------ 41 '

Peers pss

Beenie

IV

Cases—Continued

State Highway Commission of Missouri v.

Page

Volpe, 479 I’. 2d 1099, affirming, as modified,

Re er a 17, 45

State of Florida v. Train, N. D. Fla., Civ. No.

73-156, February 25, 1974. __- Lie emesis 22

State of Maine v. Train, D. Maine, Civ. No.

Lee, PUN OE MUN ELY dun nsbdudacenca 22

State of Minnesota y. Fri, D. Minn., No. 4-73,

Civ. 188, June.36, 1078......... 2.0.6... 22

State of Ohio v. Environmental Protection

Agency, et al., N. D, Ohio, Nos. C. 73-1061

and C, 74-104, June 26, 1974_......_.___- 22

State of Texas v. Ruckelshaus, W. D. 'Tex.,

C. A. No. A-73-CA-38, October 2, 1973__- 22

State of Washington v. Udall, 417 V. 2d 1310... 38

Twin Cities Chippewa Tribal Council v. Min-

nesota Chippewa Tribe, 370 VW, 2d 529. __- 38

United States v. Sherwood, 312 U.S. 584_____. 41

United States v. Tucker Truck Lines, 344 U.S.

i Swans & Geica bun tebdenvie ck Ma codaua 4]

United States ex rel. Girard Trust Company v.

EEG. OE IED, Dg icnoickaknwaapeda 40

United States ex rel. McLennan vy. Wilbur,

ie SR tidan: bon che ea oka cuore 40

Wore? V, Cog, 457 Bs Oe 1k sé oc ctnnocuwn 38

Wilbur v. United States ex rel. Kadrie, 281

FI SR dvs nina as a hain eee aera 40

Work v. Louisiana, 269 U.S. 250......_----- 25, 37

Constitution and statutes:

Constitution of the United States, Fifth

I acu cnabdbacdielokicn vais 36

V

Constitution and statutes—Continued

Administrative Procedure Act, Section 10, 60

Stat. 243-244, now 5 U.S.C. 701-706:

Page

Bik ae Sf ea Lt A 41

hoe eh TO eer hy) kk

ee ee OS ole Sig FS a a earn 39

ER Ry TERI eA oe es eat ae 39

Federal Water Pollution Control Act Amend-

ments of 1972, 86 Stat. 816, 33 U.S.C.

(Supp. 11) 1251, et seq.:

i RR eg ons con dk come aes 5

Section 203... —-. Fo OR Oe are 6

Section 203(a)...----- iN 28

i Pt: a carenansetseneue 6

Raction Boe... ..-- nn. 6

Section 205 ee A 9, 10, HI, 21, 23, 29, 44

Section 205(a)- - bs 2.

3, 7, 14, 15, 16, 18, 19, 21, 99, 25, 29

Section 205(b)_......--------- 4, 18, 26, 27, 28

ee emer

etiam cee nkewen nn ees 2,

5, 7, 8, 9, 11, 14, 15, 16, 18, 21, 25, 26, 29,

43

rt 3 ome Sa ea. pacman 41

RE INS oc oics pan edees eam nan 40, 41

ES es ee a mise mee 27

ik ee Sener pled ese Ne art heat WMA ap oe 41

ates, Be. oo da cue see hate e me eee Rea 40

Oe A en ee eae cake henewae 27

Oe a we 27

OE TE BIN. So cv nnkoestccancaenee 42

VI

Miscellaneous:

118 Cong. Ree. (daily ed.): Pase

IE Ne ag ne 9, 16

DME Cains, kan sw ccemers peel arti ts bias ihe to Is

SS Ee ran ie sae ay ee 19

3h RR rere ak ee 20

“ly. See Mbsiwaunienas : 21

> sdb eik ae aes 16

p. S 16871 Slate oh rade Se 83 19

p. 8 1688] : 19

p. S 16888 ndueus 19

p. S 18547 pketsdlesird initia eee ries 20

pp. S 18550-18551. 20)

Costs of Construction of Publicly Owned Waste

Treatment Works, H. Pub. Works Comm.

Print 93-28, 93d Cong., Ist Sess. i. 27

invironmental Protection Agency, Costs of

Construction of Publicly Owned Waste

Water Treatment Works: 1973 Needs Sur-

WO Ne Bek wetted hacks legit eS . 27

H.R. 11896, 92d Cong., 2d Sess... 15

H. Rep. No. 92-911, 92d Cong., 2d Sess... _ 26

Joint Hearings before the Ad Hoe Subecom-

mittee on Impoundment of Funds of the

Senate Committee on Government Oper-

ations and the Subcommittee on Separation

of Powers of the Senate Judiciary Com-

mittee, on Impoundment of Appropriated

Funds by the President, 8. 373, 93d Cong.,

Gn the Supreme Court of the Cited States

Ocroper Term, 1973

Russert. FE. Train, Apministrator, UNirep STATES

ENVIRONMENTAL PROTECTION AGENCY, PETELIONER

v’,

Tue Crry or New York on Bevaur or Lrsene ANb

ALL OTHER StMILARLY Srruarep MUNICIPALITIES

Wiruixy tHe Stare or New York, ev AL.

No. 73-1378

Russett BE. Train, Ap ministrator, UNitep STATES

ENVIRONMENTAL Prorection AGENCY, PETITIONER

v.

Campaign CLEAN Water, INC.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF

APPEALS FOR THE DISTRICT OF COLUMBIA AND THE FOURTH

CIRCUITS

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals in City of New

York, No. 73-1377 (Pet. App. A, pp. LA-o4A), Is

(1)

CRE TLL LEG ES RON ACE IRS

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$8 ee

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9

reported at 494 F.2d 1033. The opinion of the district

court (Pet. App. BE, pp. 59A-78A4) is reported at 358 F.

Supp. 669,

The opinion of the court of appeals in Campaign

Clean Water, No. 73-1378 (Pet. App. B, pp. 35A-

I3N), is reported at 489 F, 2d 492. The opinion of the

district court (Pet. App. F, pp. 79A-100A) is re-

ported at 361 F. Supp, 689.

JURISDICTION

The judgment of the Court of Appeals for the Dis-

trict of Columbia Cirenit in City of New York was

entered on January 23, 1974 (App. C. yp. 55A-56A).

The judgment of the Court of Appeals for the Fourth

Cireuit in Campaign Clean Water (Pet. App. D, pp.

VTA-SRA) was entered on December 10, 1973.

The petitions for writs of certiorari were filed on

March 11, i974, and were granted on April 29, 1974.

The jurisdiction of this Court is conferred by 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1, The question presented in City of New York is

whether Sections 205(a) and 207 of the Water Pollu-

tion Control Act Amendments of 1972 authorize the

Administrator, acting at the direction of the Presi-

dent, to control the rate of spending under the pro-

gram by alloting Jess than the full amounts authorized

by the Congress,

2. The question presented in Campaign Clean

Water is whether the court of appeals, upon recog-

nizing that the question whether the Administrator

nas discretion to allot less than the amounts author-

3

ized was no longer an issue in the case, should have

directed the district court to dismiss the complaint

instead of remanding the case for a hearing de nove

to determine whether the Administrator abused his

discretion in making the particular allotments.

STATUTES INVOLVED

The Administrative Procedure Act, in the introdue-

tory clause to Section 10, 60 Stat. 245, now 5 U.S.C. 701

(a) (2), provides:

This chapter applies, accerdiix te the pro-

visions thereof, except to the extent that * * *

agency action is committed to agency discretion

by law.

The pertinent portions of the Federal Water Pollu-

tion Control Act Amendments of 1972, 86 Stat. 816

(33 U.S.C. (Supp. ID) 1251 ef seq.) provide:

Sec. 205. (a) Sums authorized, to be appro-

priated pursuant to section 207 for each fiseal

year beginning after June 30, 1972, shall be

allotted by the Administrator not later than

the January Ist immediately preceding the

beginning of the fiscal year for which author-

ized, except that the allotment for fiseal year

1973 shall be made not later than 30 days after

the date of enactment of the Federal Water

Pollution Control Act Amendments of 1972.

Such sums shall be allotted among the States

hy the Administrator in accordance with regu-

lations promulgated by him, in the ratio that

the estimated cost of constructing all needed

publicly owned treatment works in each State

bears to the estimated cost of construction of

552 -254—74-——-2

4

all needed publicly owned treatment works in

all of the States. For the fiseal years ending

June 30, 1973, and June 30, 1974, such ratio

shall be determined on the basis of table IIT of

House Publie Works Committee Print No,

92-0). Allotments for fiseal years which begin

after the fiseal year ending June JO, 1974, shall

be made only in accordance with a revised cost

estimate made and submitted to Congress in

accordance with section 516(b) of this Act and

only after such revised cost estimate shall have

been approved by law specifically enacted here-

after.

(b) (1) Any sums allotted to a State under

subsection (a) shall be available for obligation

under section 203 on and after the date of such

allotment. Such sums shall continue available

for obligation in such State for a period of one

year after the close of the fiseal year for whieh

such sums are authorized, Any amounts so al-

lotted which are not obligated by the end of

such one-year period shall be immediately re-

allotted by the Administrator, in accordance

with regulations promulgated by him, generally

on the basis of the ratio used in making the

last allotment of sums under thi section. Such

reallotted sums shall be added to the last allot-

ments made to the States. Any sum made avail-

able to a State by reallotment under this sub-

section shall be in addition to any funds

otherwise allotted to such State for grants

under this title during any fiseal Year.

(2) Any sums which have been obligated

under section 203 and which are released by

the payment of the final voucher for the project

shall be immediately eredited to the State to

a

which such sums were last allotted. Such re-

leased sums shall be added to the amounts last

allotted to such State and shall be immediately

available for obligation in the same manner

and to the same extent as such last allotment.

* * * + ca

Sec. 207. There is authorized to be appro-

priated to carry out this title, other than sections

208 and 209, for the fiscal vear ending June 50,

1973, not to exceed ¥5,000,000,000, for the fiscal

year ending June 30, 1974, not to exceed $6,000,-

000,000, and for the fiscal vear ending June 50,

1975, not to exceed ¥7,000,000,000,

STATEMENT

These actions seek to compel the Administrator of

the Environmental Protection Agency to increase al-

lotments he has made under Title IT of the Water Pol-

lution Control Act Amendments of 1972 (“the Act’).

Allotment is a process under the statute by which the

Administrator allocates from the sams authorized par-

ticular amounts to the eligible jurisdictions ’ pursuant

to a percentage formula specified hy Congress.

1. THE STATUTORY SCHEME

Tithe IL creates a federal grant program under

which the federal governn«nt pays 75 percent (Section

202 (a)) of the cost of building approved sewage treat-

ment facilities. The granting of such funds takes place

in several stages. First, the Congress authorizes ap-

propriations for such grants (Section 207). Then the

'These are the states. the District of Columbia. and certain

territories. See Table I. infra. p. 49.

Rese te Sy |

alg

[ er a WROTE ¥

6

Administrator makes allotments from the authorized

amounts among the siates pursuant to specified per-

centage formulas (Section 205). The Administrator

then may approve qualified projects within the state out

of cach state’s allotment (Sections 203. 204). Approval

of a project constitutes an obligation of the U nited

States. Finally, as grantees make expenditures on the

approved projects, the sums due under the obligations

are appropriated by the Congress and paid (Section

205(b)).

Sections 205 and 207 of the Act are directly involved

in these cases, Section 207 authorizes appropriations

“not to exceed” &) billion for fiscal year 1973, $6 billion

for fiseal year 1974 and $7 billion for fiseal year 1975.

Section 205 provides that the sums authorized by See-

tion 207 “shall be allotted’’ by the Administrator

among the states. The Administrator has const rued the

statutes as empowering him to control the rate of

spending by making allotments of less than the full

amonnts authorized by Section 207,

On November 28, 1972, the Administrator, acting

pursuant to the direction of the Pre sident, allotted 2

billion for fiscal year 1973 and 83 billion for fiseal year

I9t4 (Pet. App. A, p. 7A). These actions are ¢hal-

lenged in this tice seoe, On January 15, 1974, the Ad-

Ininistrater, in an action not directly challenged here,

allotted $4 billion out of the $7 billion authorized for

fiscal vear L975,

As of May 31, 1974, not all of the sums allotted in

November, 1972 had been obligated: substantially all

of the #4 billion allotted in January, 1974 remained

‘

available (see Table I, iufra, p. 49). Only after the

wlotinents already made have been fully obligated, and

only if the President then decides not to authorize

mediately further allotments, will the allotments

here involved have any substantial effeet on the rate

of obligation and subsequent expenditure under the

program.

Thus, the reduction in allotments here challenged

has not in fact significantly reduced the rate of obliga-

tion and subsequent expenditure under this program,

Rather, it has acted as a pre-set limit on obligation

under the program, always subject to subsequent up-

ward adjustment in response to later developments.

2. THE VARTICULAR CASES

A. CITY OF NEW york ~

On December 12, 1972, the City of New York filed a

complaint in the United States District Court for the

District of Columbia alleging that under Section 205

of the Act the Administrator was required to ‘allot all

sums authorized by Section 207—an additional ¥8

billion for 1973 and #5 billion for 1974 (App. 6-14).

The district court held that the Act imposed a

mandatory duty to allot (Pet. App. Ey p. 77A) and

that control over the rate of spending should be

exercised at the obligation, not the allotment stage

(Pet. App. FE, p. 724). The court of appeals affirmed,

holding that Section 205(a) imposes a mandatory duty

on the Administrator to allot all sums authorized by

Section 207 (Pet. App. A, p. 344).

8

B CAMPAIGN CLEAN WATER

On January 15, 1973, the plaintiff, an organization

of Virginia ecologists, filed a complaint in the United

States District Court for the Eastern District of

Virginia alleging that the defendant Administrator

had a duty to allot all sums authorized by Section

207 or, alternatively, that his failure to allot more

than 45 percent of the funds authorized was an abuse

of discretion (App. 36-37). The district court held

that the Administrator had discretion under the statute

to allot less than the full amount authorized (Pet. App.

F, pp. 95A-96A), but that his decision to allot only

45 percent violated the Act (Pet. App. F, p. 994).

On appeal, the court of appeals, noting that the

plaintiff conceded that the Administrator had discre-

tion to allot less than the amounts authorized by

Congress (Pet. App B, p. 39..), reversed the holding

of violation of the Act on the ground that the record

does not support this finding of “fact” (Pet. App B,

pp. 47A-224A). The court of appeals held, however,

that the exercise of the Administrator’s discretion is

subject to judicial review by a hearing de novo in the

district court and remanded the case to that court for

proceedings to d&ermine whether there had been ap

abuse of discretion (Pet. App. B, p. 53A).

SUMMARY O° ARGUMENT

I

The Administrator’s interpretation of Sections 205

and 207 as authorizing him to allot less than the

9

total sums authorized to be appre priated is supported

by the language of the statute and its legislative his-

tory. These sections reflect two initial changes made

by the conference committee: It eliminated the word

“all” before the words **sums authorized to be appro-

priated pursuant to Section 207,” which the Adminis-

trator is directed to allot; and it added the words “not

to exceed” before the specific amounts authorized to

he appropriated in Section 207.

Congressman Harsha, the floor manager of the bill,

explained that these changes were intended to em-

phasize “the President’s flexibility to control the rate

of spending”. 118 Cong. Ree. (daily ed.) H 9122. Simi-

lar explanations of the changes were given by the Senate

floor managers. After the President vetoed the bill,

Congress overrode the veto. In the debates on such

overriding, the President’s authority *to control the

rate of spending was again stressed. The legislative

history thus shows that both the House and the Sen-

ate, on the original enactment of the bill and in over-

riding the Presidential veto, were fully aware that the

Act gave the President authority to control the rate

of spending because of the discretionary language

employed in Sections 205 and 207,

The court of appeals failed to recognize that the

rate of spending may be controlled through the allot-

ment process as well as through the obligation process,

and that there is no practical difference between exer-

cising such control at the two stages. The court of

appeals believed that control of the rate of spending

Pr an

yO

Re ae

Beever

10

at the allotment stage could thwart the congressional

intent that $18 billion be expended for water pollution

control construction projects (Pet. App. A, pp. 19A-

25A). The court unwarrantedly assumed that sums

not allotted initially under Section 205 would “lapse”

and be irretrievably lost to the States. There is noth-

ing in the statute, however, which indicates any con-

gressional intention to preclude the Administrator

from making subsequent allotments until the entire

*18 billion has heen spent. The discretion that Cor-

eress gave the President acting through the Adminis-

trator, to control the rate of spending, may be exer-

cised at the allotment stage. Such control may be exer-

cised in the interest of overall government fiscal

policies that are not related to the particular program

involved.

II

In Campaign Clean Water, Ine., the court of ap-

peals should have directed the district court to dismiss

the complaint onee the plaintiffs had conceded that

the Administrator has discretion in making allot-

ments. The district court has no jurisdiction to deter-

mine upon remand whether the Administrator had

abused his discretion in allotting only 45 percent of

the funds authorized. Sovereign immunity bars liti-

gation of the claim because the ultimate effect of the

relief sought—the allotment of additional sums to the

states—would require the expenditure of the funds of

the United States. Hawaii v. Gordon, 373 U.S. 57;

Larson V. Domestic & Fore:gn Commerce Corp., 33

11

U.S. 682. The Administrative Procedure Act does not

Waive sovereign immunity, and does not of itself con-

fer jurisdiction. Blackmar v. Guerre, 342 U.S. 512,

515-516.

The Administrative Procedure Act is inapplicable be-

cause the Aduiinistrator’s action was committed to

agency discretion by law. 5 U.S.C. 701(a); Panama

Canal Co. v. Grace Line, Inc., 356 U.S. 309, 317-319.

The Water Pollution Control Amendments contain no

criteria or standards governing the Administrator’s

exercise of his discretion. This is one of the rave In-

stances where administrative action is precluded from

judicial review because ‘there is no law to apply.”

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 410. The inquiry which the court of appeals

directed the district court to make would require the

court to decide a political question, involving mana-

gerial judgments by the President, which is not meet

for judicial resolution,

ARGUMENT

INTRODUCTION

The Administrator interprets Sections 205 and 207

together as authorizing him to allot less than the

total sums authorized to be appropriated. In his view,

those sections impose a limit upon the amount he

can allot—it cannot exceed the amount authorized—

but do not require him to allot immediately all that

has been authorized.

By allotting less than the full amounts authorized,

the Administrator is able to reduce the funds avail-

552-253-—74——_-3

12

able during a particular time period, 7.e., to reduce

the rate of spending. This action was taken pursuant

to a direction of the President, who, acting with the

advice of the Office of Management and Budget, las

the responsibility to evaluate the competing needs

of this program and other claims on the limited total

federal financial resources from which all expendi-

tures are made.

At the time the original aliotments were made, the

Executive Branch had not considered whether further

allotments could be made at later times until the full

$18 billion was exhausted, i.e., whether the allotment

authority continued after the particular specific vear

for which the appropriation was authorized. Since

it was assumed that Congress would be willing to

authorize additional sums, the question whether such

authorization was required before additional allot-

ments could be made appeared to be of little practical

significance. However, in response to a question from

Senator Muskie to the Deputy Attorney General

during hearings of the Ad Hoc Subcommittee on

Tmpoundment of Funds on February 6, 1973, the

Department of Justice studied this issue.

The Department concluded that the proper con-

struction of the statute—the one which best accom-

modates its language and its legislative historv—is

that additional allotments may be made without fur-

ther congressional authorization, at least until the

time when rveallotment of funds not utilized was re-

13

quired under Section 205(b).2 The Department. re-

ported its conclusion to the Senate Committee on Feb-

ruary 26, 1973,’ but did not so inform the district

courts in this. litigation. The Department subse-

quently advised the Court of Appeals for the Eighth

Circuit, in a supplemental brief filed in State of Min-

nesota V. United States Environmental Protection

Aycney, No. 73-1446, that the power to allot continues

until the full $18 billion has been exhausted. The

Executive Branch is now administering the statute

under that construction of these sections.

Although the district court and the court of appeals

in the City of New York case imply that the Adminis-

trator has authority to control the rate of spending at

the obligation stage of this program (Pet. App. E,

p. T2A; Pet. App. A, p. 23A), the government’s pres-

ent plan is to exercise that control only at the allot-

“Under Section 205(b) funds allotted but not obligated are

to be reallotted one year after the end of the fiscal year for

which authorized pursuant to the most recent allotment formula.

That means authorized sums not obligated are withdrawn

from all jurisdictions and the total then reallotted. This has

two functions: (1) it ensures that the relative share of each

jurisdiction is determined by more recent information on need:

and (2) it. to some extent, transfers unused authorization from

jurisdictions that have not made full use of their allotments to

those that have. It is the position of the government that

supplemental allotments made after the date for reallotment

should be allotted according to the reallotment formula.

*Joimt Hearings before the Ad Hoe Subcommittee on Im-

poundment of Funds of the Senate Committee on Government

Operations and the Subcommittee on Separation of Powers of the

Senate Judiciary Committee, on Impoundment of Appropriated

Funds by the President, S. 373, 93rd Cong., Ist Sess., 840-841.

pict eS ee ee | ee Te ee ee

erg

CM ea eee oe ae tae ties

Bere tenon: «

14

ment stage. This procedure enables the states in their

planning to rely on allotments once they have been

made. However, if this Court should hold that the en-

tire amount authorized must be allotted at the outset,

the Administrator, in consultation with the President,

will then have to decide whether to exercise his au-

thority to impose comparable obligation controls for

the same purpose.

In this consolidated brief we will first argue the

question presented in City of New York: Does Section

205(a) require allotment of the full amounts author-

ized? In our view, if it does, then allotment is a minis-

terial act and the district courts have jurisdiction to

order that it be done.

We will then argue the question presented in Cam-

paign Clean Water: Tf discretion to allot less than the

full amounts authorized exists, as was coneeded by the

plaintiffs and accepted by the court in that case, do

the district courts have jurisdiction to review the exer-

cise of that discretion ?

I

SECTIONS 205(A) AND 207 OF THE ACT AUTHORIZE THE

ADMINISTRATOR TO CONTROL THE RATE OF SPENDING

UNDER THE ACT BY ALLOTTING LESS THAN THE FULL

AMOUNTS AUTHORIZED TO BE APPROPRIATED

A. THE LANGUAGE OF SECTIONS 205(A) AND 207 DOFS NOT REQUIRE

THE ADMINISTRATOR TO ALLOT ALL THE AMOUNTS AUTILTORIZED

Section 205(a) of the Act provides that “Sums

euthainel to be appropriated pursuant to section 207

for each fiscal year * * * shall be allotted by the

15

Administrator.” Section 207 provides that, with re-

spect to the years involved in this litigation, “There

is authorized to be appropriated * * * not to exceed”

&5 billion for 1973 and “not to exceed” $6 billion for

1974. The obligation to allot in Section 205(a) thus is

defined by the appropriation authorization in Section

207, and the latter does not specify a specific amount

but merely sets a maximum limit.

Section 205(a) does not require the Administrator

initially to allot all the moneys authorized to be

appropriated by Section 207; it merely directs him to

allot “sums” so authorized, Section 207 provides broad

discretion with respect to the amount authorized to

be appropriated. In view of the interrelationship and

parallel thrust of the two sections, we submit that

Section 205(a) similarly gives the Administrator

broad discretion to determine how much of the

amounts authorized to be appropriated he will initially

allot.

ib. THE LEGISLATIVE HISTORY OF TILE WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972 SHOWS THAT CONGRESS INTENDED TO GIVE

THE PRESIDENT, ACTING THROUGH THE ADMINISTRATOR, AU THOR-

IrY TO CONTROL THE RATE OF SPENDING

The House bill (H.R. 11896, 92d Cong., 2d Sess.) pro-

vided in Seetion 205(a) that “all sums authorized * * *

pursuant to section 207” shall be allotted by the Admin-

istrator, and in Section 207 specitied the exact duiiar

amounts authorized to be appropriated—$5 billion for

fiscal year 1973, $6 billion for fiscal year 1974 and $7 bil-

lion for fiscal year 1975. The Senate bill (S. 2770, 92d

Cong., Ist Sess.) also provided in Section 205(a) that

“all sums * * * authorized * * * shall be allocated

f

.

a

SSE Log TL EIEIO LL:

FOAOTION

Were

Bosses ters ee erremere

16

{allotted]” and Section 207(b)(1) authorized “not to

exceed” an “aggregate of #12 billion” prior to July 1,

1976. Beeause of these and other differences in the

two bills, the legislation was sent to conference on

March 29, 1972, after passage of the House bill. After

extensive deliberation, the conference committee re-

ported an amended bill six months later on September

28, 1972.*

The Committee made two changes, the so-called

“Harsha Amendments,” which are eritical to the ques-

tion before the Court. First, it eliminated the word

“ali” from the requirement in Section 205(a) that

the Administrator allot ‘tall sums authorized” by See-

tion 207, Second, it adopted the phrase “not to exceed”

from the Senate bill as a qualification upon the amounts

authorized to be appropriated by Section 207.

Congressman Harsha, the House floor manager of

the bill and the author of the amendments, explained

that **the elimination of the word ‘all’ before the word

‘sums’ in section 205(a) and insertion of the phrase

‘not to exceed’ in section 207 was intended by the man-

agers of the bill to emphasize the President's flexibility

te control the rate of spending.” 118 Cong, Ree. (daily

ed.) H 9122. He continued (ibid.):

‘Senator Muskie, a Member of the Conference Committee,

sated “I have been a Member of the Senate for 15 years, and

I have newer before participated in a conference which has

consumed so many hours, been #0 arduous in its deliberations, or

demanded so much attention to detail from the members. The

difficulty in reaching agreement on this legislation hae been

matched only by the gravity of the problems with which it

works to cope.” 118 Cong. Ree. (daily ed.) S 16869,

17

Furthermore, let me point out, the Committee

on Publie Works is acutely aware that moneys

from the highway trust fund have been im-

pounded by the Executive. Expenditures from

the highway trust fund are made in accordance

with similar 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 because we have added **not te ex-

coed” in section 207, as L indicated before.

Surely, if the administration can impound

monies from the highway trust fund which

does not have the flexibility of the lancuage of

the water pollution control bill, it can just as

rightly coutrol expenditures from the contract

authority produced in this legislation by that

same means,”

The same view was expressed in the subsequent

colloquy among Representative Harsha, Representa-

tive Jones, the Chairman of the House Conferees, and

Representative Ford, In response to a statement from

*The fact that the Court of Appeals for the Bighth Cirenit

in State Highway Commission of Missouri v. Volpe, V9 ¥, 24

10), subsequently held that the highway statute does not au-

thorize the obligation of lesser amounts than those allotted does

not undermine the significance of the references to highway

impounding in the legislative history. The Members of Con-

gree who referred to highway impounding were referring to

the pereticn (which, in spite of an adverse district court deci-

sion, 34+ F. Supp. 050 (WUD. Mo. 1972)). they apparently till

assumed te be proper as an example of the type of control the

Executive Branch could exercise over spending under the Water

Pollution Contro: Act Amendments,

en eee Se eee ee

ee

= ——

es ous

18

Representative Ford that it was ‘vitally important

that the intent and purpose of section 207 is spelled

out in the legislative history here in the discussion on

this conference report,’ Mr. Harsha stated:

I do not see how reasonable minds could come

to any other conclusion than that the language

means we can obligate or expend up to that

sim—anything up to that sum but not to exceed

that amount, Surely, if the Executive can im-

pound moneys under the contract authority

provision in the highway trust fund, which

does not have the tlexible language in this bill,

they could obviously do it in this instance.

Mr. Jones stated that he agreed with Mr. Harsha,

pointing out that the latter “offered this amendment

which we have now under discussion in the committee

of conference, so there is no doubt in anybody's mind

of the intent of the language. It is reflected in the

language just explained by the gentleman from Ohio

(Mr. Harsha).*’

Mr. Ford then stated:

Mr. Speaker, this clarifies and certainly

ought to wipe away any doubts anyone has, The

language is not a mandatory requirement for

full obligation and expenditure up to the au-

thorization figure in each of the 3 fiscal years.

[118 Cong. Ree, (daily ed.) H 9123. ]

The disenssion of the conference bill in the Senate

similarly shows a recognition that the changes made

in Sections 205(a) and 207 were intended to give the

Executive Branch power to control the rate of spend-

ing. In explaining these two changes Senator Muskie,

19

although describ ng the change in Section 205(a) as

providing that ** ‘all’ sums authorized to be obligated

need not be committed, though they must be allocated,”

stated that the changes in the two sections “were

suggested to give the administration some flexibility

concerning the obligation of construction grant funds”

(118 Cong. Rec. (daily ed.) 8 16871). Senator Cooper, a

Senate conferee, noted that the funding of the legisla-

tion would total “over $24 billion—subject to the usual

presidential responsibility for evaluating these needs in

relation to other national priorities.” 118 Cong. Ree.

(daily ed.) S 16881. Senator Nelson stated, with respect

to expenditure controls: “Only if the President’s Office

of Management and Budget or the Congress specifically

directed otherwise would the money not be available at

the levels in the legislation, according to my understand-

ing.”’ 118 Cong. Rec. (daily ed.) S 16888.

The President vetoed the bill, stating in his veto

message that it would lead to excessive spending.’ 118

Cong. Ree. (daily ed.) H 10266. The Congress then

passed the bill over the veto.

In the Senate debates on overriding the veto, Sen-

ator Muskie challenged the President’s view that the

bill would lead to excessive spending, stating:

[T]he President is in a position to control the

amount of such authority that is used by the

Administrator of EPA, and probably the Office

of Management and Budget as well.

*The Administration had recommended expenditures of 6

billion. The Bill provided for an $18 billion grant program

as well as $6 billion in other expenditures, a total of $24

billion.

562-253—74—_4

ron gaeney

Las te vy Fif Cgmeenne PODIUM

OEY UT

2g

raves: IONE EEE ae

20

May [| point out to the Senator that im the

language of the authorization are the words

“not to exceed.” Obviously, those are words of

control [LIS Con. Ree. (daily ed.) S 18550-

18551. |

Senator Cooper reviewed the history of the legisla-

tion at some Jength and explained that the conference

amendments had been expressly itended to offset the

#18 billion figure adopted in the final bill by giving

the President the “option of impoundment” (118

Cong. Ree. (daily ed.) S 18551). Likewise, the following

statement of Senator Baker, also a conferee, was read to

the Senate by Senator Muskie (118 Cong. Ree. (daily

ed.) S 18547):

[Thhe Congress has gone out of its way to

make it clear to the President that the funds

authorized by the water pollution bill did not

have to be spent in their entirety.

It was on the basis of these statements of the Presi-

dent’s authority to control spending that the Senate

overruled the veto.

In the House debates on overriding the veto the

same point was made. Representative Harsha stated

(118 Cong. Ree. (daily ed.) TE 10268) :

[Wile have emphasized over and over again

that if Federal spending must be curtailed, and

if such spending cuts must affect water pol-

lution control authorizations, the administra-

tion can impound the money,

I want to point out that the elimination of

the word “all” before the word “sums” in see-

tion 205(a) and insertion of the phrase

“not to exceed” in section 207 was intended

21

to emphasize the President's flexibility te con-

trol the ro’ + of spending.

Similarly, wepresentative Clausen, also a conferee,

stated that it was “unfortunate that the President

felt that he had to veto this bill” because of “his con-

cern for the task he has of holding the reins on the

Federal budget,” since the effect of the Marsha amend-

ments in eliminating the word “all” in Section 205(a)

and the addition of the words “not to exceed” in See-

tion 207 “gave the President the authority and the

flexibility he needs to control the rate of spending”

(118 Cong. Ree. (daily ed.) TE 10272), In his closing re-

marks, just before the House voted to override the veto,

Representative Clausen stated:

It [should] have been abundantly clear that

the President has the authority to control the

rate of spending. This was the clear intent of

the managers. [Tbid.]

This legislative history shows that both the House

and the Senate, on the original enactment of the bill

and in overriding the Presidential veto, were fully

aware that the bill that was enacted gave the Presi-

dent full authority to control the rate of spending. The

elimination of the word “all” from Seetion 205 and

the addition of the words “not to exceed” in Section

207 were frequently described together as the means

by which authority to exercise that control was as-

sured, As we now show, such control may be exercised

by allotting less than the total amounts authorized to

he appropriated.

5 Ae Oe LER GLAVIN E PTE OSES

PIE POS LRT ONES TA re >

22

( THE AUTHORITY TO CONTROL THE RATE OF SPENDING MAY BE

EXERCISED BY ALLOTTING LESS THAN THE AMOUNTS AUTHORIZED

TO BE APPROPRIATED

The court of appeals in City of New York coneluded

(Pet. App. A, pp. LA, 23.4), on the basis of its reading

of the legislative history, that *‘while the Administra-

tor might control the timing of future spending

through delay of obligation, he must fully allot” and

that “the amendments were intended to grant the

executive discretion in the obligation phase, not in the

allotment phase” (emphasis in original). As shown

above, however, the legislative }'story does not sup-

port this conclusion. Indeed, the action of the confer-

ence committee, discussed above (pp. 15-16), in delet-

ing the word “all” from the requirement in Section

205(a) for allotment of “sums authorized” by Section

207, supports the contrary conclusion, Virtually all

of the discussion upon which the court of appeals

relied was directed to the question whether the Execu-

tive Branch could control the rate of spending, and

did not focus upon the stage at which such control

would be exercised.

It is significant that those courts that have rejected

the government's position in this case—following the

opinion of the district court in City of New York ‘—

"City of New York in the court of appeals (Pet. App. A):

State of Minnesota v. Fri, D. Minn., No. 4-75, Civ. 133, June 25,

1973: Martin-Triqona v. Ruckelshaus, N. VD. Ul... No. 72-C-30H4,

June 20. 1973: State of Teras v. Ruckelshaus. W.VD. Tex..C. A. No.

A-75-CA-38, October 2, 1973: State of Flovida y. Train, N. D.

Fla. Civ. No. 73-156, February 25, 1974: State of Maine v.

Vrain. D. Maine. Civ. No. 14-51, June 21, 1974: State of Ohio

v. Environmental Protection Agency, cf al.. N. D. Ohio, Nos.

C. 75-1061 and C. 74-104, June 26, 1974.

23

have offered no explanation for the deletion of the

word “all” from Seetion 205, But the two courts that

attached any meaning to this change found that the.

power to control the rate of spending could properly

be exercised at the allotment stage.

We submit that the selection of the method by

which the control of spending should be exercised—

through restrictions upon allotment or upon obliga-

tion—lies within the sound discretion of the Presi-

dent and the Administrator. The issue is basically one

of timing—at what stage in the administrative process

are the controls upon the rate of spending to be im-

posed. If the Act gives the Administrator ‘*control

over the ‘rate of spending,’ as the eourt of appeals

recognized ( Pet. App. A, pp. 25A-26A ), there is no prac-

tical difference in result between exercising such con-

trol at the allotment or at the obligation stage (see

infra, pp. 25-29).

The court of appeals, however, stressed the alleged

distinction between control of spending at the obliga-

" Cam paigu Clean Water in the district court (Pet. App. I. })-

MA): “[T his interpretation * * * appears to de-emphiasize

the syntactical history of Section 205 which shows the purpose-

ful removal of the word ‘all’ from §205.° Brown ve Ruchels-

haus, 364 F. Supp. 258, 269 (C.D. Calif.): “With all due

respect to the judges who wrote those opinions. we believe that

they are not correct. Neither the amendments nor the sponsors”

statements received proper attention in any of the decisions.

No one has convinced us that when a legislature removes the

word ‘all’ from the phrase, *All sums authorized to be appro-

priated shall be allotted’ they mean that every penny must be

spent. Nor has anybody argued successfully that adding the

phrase ‘not to exceed” before a sum means anything more than

that an upper limit must be imposed.”

24

tion stage and control at the allotment. stage. The

court eoneluded (1) that the controls at the two stages

are very different and that (2) control at the allot-

ment stage interferes with the legislative objective of

committing $18 billion to the program. In response to

the Administrator’s argument that ‘tin terms of the

impact on potential recipients, control over allotments

and control over obligations would have the same

effect’ (Brief for appellant Administrator, p. 21,

Reply Brief, p.5), the court said (Pet. App. A, p. 314) :

We disagree emphatically. Discretion over

allotments necessarily confers discretion over

the amount available to be spent and thus

grants the executive the power to contravene the

oft-stated legislative purpose to make federal

money available. Could the Administrator allot

802 Happily, this is not the case, but the Ad-

ministrator suggests no limit on his alleged dis-

cretion not to allot. Such authority would be

ereater than the power to control the rate of

expenditures to which the sponsors repeatedly

referred. Further, diseretionary — allotment

would not be consonant with the overall eon-

cern, clearly expressed, of providing a total of

£18 billion to combat water pollution. We find

that discretion in obligation is distinctly differ-

ent than discretion in allotment, and that. it

was only the former which this legislation was

intended to confer.

A plausible but erroneous assumption underlies this

reasoning: that control over the rate of spending and

control over the amount of spending are very differ-

ent things. This is not se. Control over the rate of

spending is necessarily control over the amount to be

spent during a particular time period. A rate is de-

fined as an amount of something during a given period

of time. A rate can be reduced cither by reducing the

amount or extending the time period.

The court of appeals believed that control of the

rate of spending at the allotment stage should not be

permitted because such control could thwart the con-

gressional intent to require that a total of $18 billion

be expended on this program, @.e., the amount author-

ized to be appropriated in Section 207 (Pet. App. A,

pp. 19A-25A ). Implicit in this conclusion is the apparent

assumption that sums not allotted imitially are there-

after lost to the program, “e., that the authorizations

for the particular vears provided in Section 207 lapse

unless the funds therefor are allotted before the year

expires. The assumption is unsound; the President

and the Administrator have authority to continue to

make allotments for as long as necessary, until the

total amount authorized has been allotted.”

Although Congress provided in Section 205(a) that

“[s]ums authorized” in Section 207 “shall be allotted

*Even if allotments not made did lapse, the only difference

would be that Congress would have another occasion to examine

the issues related to amounts and rate of spending under this

program. Lapse is a doctrine which preserves continuing con-

gressional authority over executive spending. Only if one as-

sumes that the plaintiffs have some sort of entitlement to the

1972 authorizations of Section 207 apart from and in addition

to any subsequent authorization by Congress, does the fear of

lapse make any difference. Such an assumption is m error. This

is not a case like Work v. Louisiana, 269 US. 250. where Con-

gress had granted specific. unique property to the plaintiffs.

ERR EPA PR MRL LIE TE ELI I RLS TTI TE ER: IT NRT WREST

26

by the Administrator tet later than the January Ist

immediately preceding the beginning of the fiscal year

for which authorized,” this provision, as we have ex-

plained, supra, pp. 14-15, does not require him initially

to allot all sums so authorized. With respect to the

sums allotted, Congress provided in Section 205(b) (1)

that they “tshall continue available for obligation im

such State for a period of one vear after the close

of the fiscal vear for which such surus are authorized,”

and that “[a]ny amounts so allotted which are not

obligated by the end of such one-year period shall be

immediately reallotted by the Administrator.” Con-

gress thus provided that even with respect to sums

initially allotted, they are te continue to be available

indefinitely, subject only to reallotment."

There is nothing in the statute which indicates any

congressional intention to preclude the Administrator

from subsequently allotting sums not initially allotted

during the vear for which the sums were authorized.

To the contrary, it would further the congressional

intent that the full $18 billion authorized be expended on

the program, to permit the Administrator, if he initially

allots less than the full amount authorized, to allot the

balance at some future time when he considers it ap-

propriate to channel further amounts into the pro-

"TL. Rep. No. 92-911. 92d Cong... 2d Sess.. p. 93, states:

“|with a periodic reallotment of unused allotments, the Com-

mittee expects each of the authorizations provided in section

207 to be ultimately used and las accordingly provided tndef-

nite appropriation authority to permit the payment of the

obligations regardless of the year in which this may occur.”

(Emphasis added.)

27

gram." It was presumably for these reasons that the

Fourth Cireuit in Campaign Clean Water was

“strongly pursuaded” that the Administrator has that

authority (Pet. App. B, p.51A).

Once it is recognized that the Administrator has

authority to allot funds beyond the authorized years,

then there is no practical difference in result whether

the controls upon spending are exercised at the allot-

ment or at the commitment stage. If the Administra-

tor were required to allot all the sums authorized, he

would then. control spending by restricting the rate

of obligation. Such controls upon obligations would be

modeled on the spending controls used under the High-

way Act, which were referred to in the legislative

history (supra, pp. 17-18). After all the sums were

allotted, the portion of them equivalent to the amounts

that were originally allotted would be made available

for obligation. The balance of the allotted funds would

" The concept of continued authority to commit government

funds is not novel. Cf. 381 U.S.C. 706, which provides for the

withdrawal of “[t]he unobligated balances of appropriations * * *

not limited to a definite period of time™ only “whenever the

head of the ageney concerned shall determine that the purposes

for which the appropriation was made has been fulfilled:

or * * * whenever disbursements have not been made against

the apprepriation for two full consecutive fiscal years.” Appro-

priations are defined to include contract authority. 31 U.S.C. 2.

The determination that ihe purpose has been fulfilled is unlikely

to be made here, since the 1975 needs survey made pursuant to

Sections 205(b) and 516 showed total needs of 860 billion. See

Costs of Construction of Publicly Owned Waste Treatment

Works, H. Pub. Works Comm, Print 93-28, 93d Cong., 1st

Sess... p. 2; Environmental Protection Agency, Costs of Con-

struction of Publicly Owned Waste Water Treatment Works:

1973 Needs Survey, Table II, p. 12.

g

rye

POET

oy

~:

FO EEE OT OAR NT Eats OPIN Foy

eg

| 2 NESTS SOT RSG ORR Ra He cag Sy

28

be placed in “reserve” accounts, which the Adminis-

trator could not commit until the accounts were

released.

An ilustration may clarify the point. For fiscal

vear 19723 New York was allotted $221,156,000 under

the Water Pollution Control Amendments. If the full

$5 billion authorized had been allotted instead of the

&2 billion actually allotted, New York would have been

allotted $552,890,000 under the 1973 allotment formula,

an inerease of $331,734,000. If full allotments had been

made, and obligation controls imposed, New York’s

total allotment of $552,890,000 would have been divided

into two accounts. The amount of $221,156,000 would

have been placed in one account, which the Admin-

istrator could have immediately obligated for qualified

projects. The balance of $331,734,000 would have been

placed in a reserve account, which the Administrator

could not obligate until the funds were released.”

The court of appeals also relied on the provision of

Section 206(f)(1) permitting the Administrator to

* This arrangement would not contravene the provision of

Section 205(b) (1) that “Any sums allotted * * * shall be available

for obligation * * * on and after the date of such allotment.”

because the sums in the reserve account would continue avail-

able until released. The Administrator's duty to act on applica-

tions “as soon as practicable” under Section 203(a) would not be

violated because the obligation of funds by the Administrator

from reserve accounts is not “practicable” if he has not been

authorized to release them. Sums held in a reserve account more

than one year after the close of the fiscal year would be re-

allotted under Section 205(b) (1). along with similar funds allot-

ted to all other states, pursuant to the allotment formula dictated

by the most recent needs survey. Likewise sums allotted after

the time for reallotment should be allotted according to the

reallotment formula.

29

obligate from future *texpected”’ allotments. That sec-

tion permits such obligation where allotments already

made have been fully obligated, if a congressional au-

thorization is in effect, and if the obligation will not

exceed the expected allotment from that authoriza-

tion. The court concluded that this section ‘would

have scant operative effect if the ‘state’s expected

allotment’ could not be known because the Adminis-

trator had discretion to allot only a portion of such

authorization’? (Pet. App. A, pp. 33A-34A). This

overlooks, however, an important fact. The ‘ex-

pected”? allotment is the same as the state's likely

percentage share of the total authorization because the

expectation is not limited in time and the Adminis-

trator expects ultimately to release the full $18 billion.

Section 206(f) is part of the overall scheme of the

statute which gives the Administrator power te con-

trol the rate of obligation under the program. Sections

205 and 207 give him power to slow the rate of obliga-

tion by deferring allocations. Section 206(f) gives

him power to accelerate the rate of obligation beyond

that dictated by the initial allotment dates of Section

205(a). Section 206(1) is consistent with the statutory

plan conferring discretion on the Administrator to

allot, and, the covet of appeals suggested (Pet. App. A,

p. 344A), with a mandatory duty to do so.

In sum, the Executive Branch did not abuse its discre-

tion in making the judgment that the allotment stage is

the proper occasion to exercise control over spending.

There is nothing in the Act or its legislative history

reflecting any clear congressional intent to bar the

Executive Branch from exercising contro! at this

NSAI ENA NIES OLLI ND DE

TR ONPG, FRO RA EOP IL > AP ME MENTS

WS GDN Drees

&

Peer ete

stage. In the absence of such congressionally shown

intent, the courts should respect the expert judgment

of the officials to whom Congress committed the ad-

ministration of the program.

Il

IN CAMPAIGN CLEAN WATER THE COURT OF APPEALS SHOULD

HAVE DIRECTED DISMISSAL OF THE SUIT

In its complaint, Campaign Clean Water alleged

that the Administrator had acted unlawfully because

(1) he “lacks the discretion to refuse to allot among

the states the full sums authorized by Congress”

amd (2) he abused his discretion ‘by withholding a

creater amount of funds than contemplated by the Con-

gress under the Act” (App. 36-37). During the litiga-

tin, however, the plaintiff abandoned the first claisas,

amd when the case reached the court of appeals it

invelved only the second theory of illegality. As the

court of appeals stated (Pet. App. B, pp. 39A-40A) ;

The plaintiff concedes the Congress intended

to give the executive certain discretion in mak-

ing allotments under Section 205; the defendant

Administrato: asserts the existence of such dis-

cretion; and the District Court found that there

was such discretion, The existence of discretion,

therefore, is not in issue on this appeal. [Foot-

note omitted. ]

Thus, the only portion of the complaint now rele-

vant is the allegation that the Administrator abused

hix discretion by alloting less than Congress intended.

nee the court of appeals recognized that there is

no issue in this case whether the Administrator has

41

discretion to allot less than the sums authorized, it

should have directed the district court to dismiss the

complaint. The district court had no jurisdiction to

determine, as the court of appeals directed it to do on

remand, whether the Administrator abused his discre-

tion in alloting only 45 percent of the funds author-

ized, This is so for two reasons: (a) Sovereign

immunity bars litigation of that claim, and (b) the

only statutory basis the district court had for enter-

taining the claim—the Administrative Procedure

Act—is unavailable because the elaim involves a

matter committed to agency discretion, so that the

Act cannot apply.

A. MIVVEREIGNTY IMMUNITY BARS THIS stIT

1, The suit is against the soverciqn because it secks

fo compel a government official to take affirmative

action looking toward the spending of government

funds, The complaint in this ease sought to compel

action by the Administrator that would have the ulti-

mate effect of requiving the expenditure of funds

by the United States. The relief sought, in addition

to a declaratory judgement, was an order directing the

Administrator to inerease the allotments he had pre-

viously made, and granting any other appropriate re-

lief, including retaining jurisdiction to insure that the

defendant does not by cther unauthorized means

“defer the obligation by states, municipalities, and

other authorized agencies of allotted sums” (App. 37).

The allotments, as explained above (pp. 5-6), constitute

32

the first step in the administrative process by which

federal funds are provided to the states.

Since the allotments provide a ceiling upon the

amounts which the states can receive, the increase in

the allotments sought necessarily was intended to and

ultimately would increase the funds the United States

will furnish to the states. Indeed, the complaint recog-

nized this by its request for possible other relief to

prevent the Administrator from deferring the obliga-

tion of authorized funds. Obligation of funds is the

mechanism by which the government actually commits

funds to particular projects. Once the funds have

heen obligated, the state is entitled to receive them.

Such an attempt to compel a government official

to take affirmative action that will result in the disposi-

tion of government property is an unconsented suit

against the sovereign that is barred by sovereign im-

munity. See, eg. Hawaii vy. Gordon, 373 US, 97;

Dugan ¥. Rank, 372 US. 609; Malone v. Bowdoin,

369 U.S. 643; Larson ¥. Domestic & Forcign Commerce

Corp., 337 US, 682,

Hawaii ¥. Gordon, supra, involved a similar situa-

tion. That was an original action by the State of

Hawaii against the Director of the Burean of the

Budget challenging his interpretation of the Hawaii

Statehood Act. The Aet provided for the transfer by

the United States to Hawaii of lands there that the

United States no longer needed. The Director held

that this provision applied only to lands originally

ceded by Hawaii to the United States o: tands ob

33

tained for exchange of such lands, and not to lands

obtained by the United States by purchase, gift or

condemnation, and so advised other federal agencies.

Hawaii's suit sought an order requiring the Director

“to withdraw this advice to the federal agencies, de-

termine whether a certain 203 acres of land in Hawaii

acquired by the United States through condemnation

was land or properties ‘needed by the United States’

and, if not needed, to convey this land to Hawaii”

(p.373 U.S. at 58).

This Court held that the suit was barred by sov-

ercign immunity. It stated (7bid.) :

Here the order requested would require the

Director’s official affirmative action, affect the

public administration of governr nt agencies

and cause as well the disposition of property

admittedly belonging to the United States.

The Campaign Clean Water challenge to the Ad-

intinistrator’s discretion is subject to the same infir-

nities. It seeks to ‘require the [Administrator’s] of-

ficial affirmative action” of increasing the allotments:

it would ‘affect the public administration of govern-

ment agencies” by forcing the Administrator to

change the bass upon which he is operating the pro-

gram pursuant to the direction of the President; and

it would cause “the disposition of property admittedly

belonging to the United States,”’ namely, a portion of

the authorized funds that the Administrator had not

vet allotted. Like the complaint that this Court dis-

missed in Hawaii vy. Gordon because it was an uncon-

sented “suit against the United States’ ibid.), this ac-

TCR WRENN RUT PRONE MN tT RR, EN A eT

Edt We

Pore Pra

34

tion also is harred by sovereign immunity.

2. The case is not within the exception to sovereign

immunity for situations where the government official

acts beyond his statutory authority or unconstitution-

ally. An exception to sovereign mununity is recognized

“if the offieer’s action is ‘not Within the officer's

statutory powers or, if within those powers * * * if

the powers, or their exercise in the particular case,

are constitutionally void.’ ” Malone y. Bowdoin, supra,

369 U.S. at 647, quoting from Larson vy. Domestic &

Foreign Commerce Corp., supra, 337 U.S. at 702.

Neither exception applies here,

a. Although the complaint alleged that the Admin-

istrator’s action in allotting only 45 percent of the

sums authorized was “unlawful” and “outside the scope

of his diseretion and authority” (App. 36), this claim

does not establish that his action Was not “within the

officer’s statutory powers.” Larson, supra, 337 US.

at 691-692, 702, discussed below. For, once it is ae-

knowledged that the Administrator has discretion to

allot less than the full amounts authorized, his disere-

tionary act of determining the total amount to be

initially allotted cannot be beyond his “statutory pow-

ers.” Even assuming arguendo that it may involve

error in exercising those powers, it is still within

them and not beyond them, It is necessarily an exer-

cise of thos powers.

Larson and Hawaii, supra, both support this con-

clusion. Larson was a suit against the Administrator

of the War Assets Administration to prevent him

from disposing of coal that the Administration alleg-

35

edly had sold to the plaintiff. The plaintiff's right to

the coal depended upon the interpretation of the sales

contract between itself and the Administration. As in

the present case, the complaint alleged that the Ad-

ministrator “was acting ‘illegally,’ and that the re-

fusal to deliver was ‘unauthorized’ (337 US. at

691). The Court held that this allegation was insuf-

ficient to show that the Administrator was acting

beyond his “statutory powers,” since—

There is no allegation of any statutory limita-

tion o@ his powers as a sales agent. In the ab-

sence ef such a limitation he, like any other

sales agent, had the power and the duty to

construe such contracts and to refuse delivery

in cases in which he believed that the contract

terms had not been complied with. His action

in so doing in this case was, therefore, within

his authority even if, for purposes of decision

here, we assume that his construction Was

Wrong and that title to the coal had, in facet,

passed to the respondent under the contract.

[337 US. at 703; see also, id. at 691-692. |

Similarly, in the present case the Adininistrator’s

statutory authority to allot Jess than the total amounts

authorized includes the right ts determine the amount

to be initially allotted,

In Hawaii y. Gordon, the claim was that the Diree-

tor of the Bureau of the Budget was acting on the

basis of an erroneous interpretation of the Hawaii

Statehood Act, Despite this claim of illegal action, the

Court held that sovereign immunity barred the suit.

indeed, the present case is an even stronger one for

Yo Vea wee ETN REP ETS eee

R re ay

36

application of the doctrine. There the claim was that

the government officer had misinterpreted an Act of

Congress; here it is only that he abused his discretion

in administering the Act.

». The complaint does not allege that the Adminis-

trator acted unconstitutionally in alloting only 45

percent of the sums authorized, and it is difficult to

see how any substantial constitutional challenge could

be made to that action. The state’s claim to the allot-

ment of funds under the Federal Water Pollution

Control Act Amendments rests wholly upon those

Amendments, not upon any constitutional provision.

There is not and could not be any valid claim that the Ad-

ministrator’s allotment action violated any rights of

the State or its residents under the Fifth Amendment.

The court of appeals stated (Pet. App. B, pp. 46.A-

47.\) that when the executive withholds from spending

“so substantial an amount of the appropriation as to

make impossible the attainment of the legislative goals,

the executive trespasses beyond the range of its legal dis-

cretion and presents an issue of constitutional dimen-

sions which is obviously open to judicial review.’ But

the court’s characterization of the validity of the Ad-

ministrator’s refusal initially to allot more than 45

percent of the amounts authorized as presenting “an

issue of constitutional dimensions’’ does not bring this

‘ase within the “unconstitutional action” exception to

sovereign immunity. The theory of that exception is

that when a government official acts unconstitutionally,

it is not the action of the sovereign at all but the per-

sonal act of the official, since the latter cannot be

acting for the sovereign when he exceeds the sovereign’s

37

constitutional power. The validity of the amount of

the initial allotments the Administrator made in the

exercise of his statutory discretion does not even re-

motely approach an unconstitutional exercise of gov-

ernment authority.

¢. Most cases in which the government official alleg-

edly has acted beyond his statutory authority or un-

constitutionally were situations where the plaintiff

claimed that the property being held by the sovereign

was his property. Cf. Larson and Malone, supra. In

this case, however, as in Hawaii vy, Gordon, the prop-

erty which the plaintiff secks to obtain is admittedly

property of the sovereign, and the claim is that he is

entitled to receive the property from the sovereign

under a statutory right to entitlement. This Court

recognized in Larson, supra, that such a claim is one

against the sovereign and not subject to the exceptions

for unauthorized or unconstitutional action:

Of course, a suit may fail, as one against the

sovereign, even if it is claimed that the officer

being sued has acted unconstitutionally or

beyond his statutory powers, if the relief

requested can not be granted by merely order-

ing the cessation of the conduct complained of

but will require affirmative action by the sov-

ereign ov the disposition of unquestionably sov-

ereign property. [337 U.S. at 691, n.11.]

Only where the official’s duty to dispose of the

sovereign’s property is ministerial have the courts

permitted suit to be maintained to compel its disposi-

tion. Work v. Louisiana, 269 U.S. 250; Kendall vy.

United States cx rel. Stokes, 12 Pet. 524. The present

ease, in which the plaintiff is seeking to compel a

crn ene |

4 SAS

ae

38

government official to furnish him with greater gov-

ernment funds than the official believes is appropriate,

is a suit against the sovereign.

3. The Administrative Procedure Act does not waive

the United States’ sovereign timunity. The cirenits

are divided over whether the sovereign immunity of

the United States has been waived by the Administra-

tive Procedure Act. Five courts of appeals have held

that it has not been waived. Littell vy. Morton, 445 F.

2d 1207, 1212 (CLA. 4); State of Washington v. Udall,

417 F. 2d 1310, 1320 (CLA. 9); Motah v. United States,

402 F. 2d 1,2 (C.A. 10): Twin Cities Chippewa Tribal

Council v. Minnesota Chippewa Tribe, 870 FB. 2d 529, 532

(CLA. 8): Cyrus v. United States, 226 F.2d 416 (CLA.

1). Three circuits have taken the contrary view.

Scanwell Laboratorics, Tne. v. Shaffer, 424 VF. 2d 859,

8735-874 (C.A.D.C.); Estrada vy. Ahrens, 296 FF. 2d

H90 (CLA. 5); Compare Warner v. Cor, 487 BF. 2d 1301

“In Littell and State of Washington, however, the courts

held sovereign immunity inapplicable because they concluded

that the interests served by judicial review in the particular

case outweighed the interests served by sovereign immunity.

even though both actions sought to effect a disposition of sov-

ereign property. See 445 F. 2d at 1215-1214. 417 PF. 2d at 1520.

Littell involved a claim for legal fees for services rendered.

State of Washington involved a claim that certain water should

be made available to the State without legal restrictions thought

controlling by the agency. If the suit is against the sovereign,

however, only Congress can waive immunity, and the courts

cannot. dec'de whether to entertain such suits based upon their

evaluation of the relative interests to be served by judicial

review in the particular case. In any event, the present action,

involving an administrative process central to the operation of

the entire executive branch (see ‘nfra, pp. 4446), involves

wholly different considerations.

39

(CLA. 5) and Colson v. Hichkel, 428 F. 2d 1046 (CLA.

5); Kletschka v. Driver, 411 BF. 2d 486, 445 (CLA, 2

(alternative ground for decision).

The cases holding that the Administrative Proce-

dure Act waived sovereign immunity rely upon Section

10(a) of that Act (60 Stat. 243), now 5 U.S.C. 702,

which provides: **A person * * * adversely affected or

aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”

This section does not deal with jurisdiction, however,

but only with standing. The provision dealing with

jurisdiction, Section LO0(b), now 5 U.S.C. 703, states

that the “form of proceeding for judicial review

is * * * any applicable form of legal action * * * in

a court of competent jurisdiction” — Cemphasis

supplied).

The Administrative Procedure Act does not of it-

self confer jurisdiction, but only prescribes the pro-

cedures for administrative review in courts having

jurisdiction. Since sovereign immunity is a jurisdic-

tional issue, the Administrative Procedure Act did not

waive it. As this Court said of that Act in Blackmar

v. Guerre, 342 U.S. 512, 515-516, “Still less is the Act

to be deemed an implied waiver of all governmental

immunity from suit.”

b&b THE ONLY BASIS UPON WHICH THE DISTRICT COURT MIGHT HAVE

AUTHORITY TO HEAR THIS SUIT—THE ADMINISTRATIVE PROCEDURE

ACT—IS INAPPLICABLE BECAUSE THE CHALLENGED ACTION

INVOLVES A MATTER COMMITTED TO AGENCY DISCRETION

A district court may review an administrative order

only if (1) the governing statute itself provides for

review and the plaintiff has followed the statutory

procedures, or (2) the Administrative Procedure Act

25 RAIN ARLENE GAN TET EE IS LIRA PP

oe

*

yee, en

40

permits review. Neither basis is present here, and the

court of appeals accordingly should have directed the

district court to dismiss the complaint.”

1. The Federal Water Pollution Control Act Amend-

ments authorize any citizen to file a civil action

“against the Administrator where there is alleged a

failure of the Administrator to perferm any act or

duty under this Act which is not discretionary with the

Administrator” and give the district courts “jurisdie-

tion * * * to order the Administrator to perform such act

or duty * * *” (Section 505(a)). This authority, how-

ever, is specifically subject to the requirement in sub-

paragraph ()) that “No [such] action may he com-

meneed * * * prior to sixty days after the plaintiff has

given notice of such action to the Administrator.”

The complaint in this case does not allege that snb-

paragraph (b) was complied with, and the Admin-

eects

“Campaign Clean Water also invoked the jurisdiction of the

district. court under the federal mandamus statute, 28 U.S.C.

1361, Since petitioner recognizes that the Administrator has

discretion to allot less than the amount authorized, however,

mandamus would not lie, That writ may issue only to compel

performance of a ministerial act, but not to control the exer-

cise of discretion. Wilhur ve United States cr re 1. Nadrie, 231

U.S. 206, 218: United States er pel. McLennan vy. Wilbur, 285

US. 414. 420: United States er yel. Girard Trust Company N.

Helrvering, 301 U.S. 540, 43: Panama Canal Company VN. Grace

Line. Ine.. 356 U.S. 309, 315. Section 1361 recognizes that limi-

tation upon the use of mandamus, since it gives the district

courts jurisdiction “of any action in the nature of mandamus to

compel an officer er employee of the United States or any

agency thereof to perform «a duty owed to the plaintif!™

(emphasis added).

41

istrator has advised us that he was not given such

rotice. Indeed, the complaint on its face shows that

tie 60-day statutory notice could not have been given

before it was filed. The action of the Administrator in

allotting less than the total amounts authorized was

announced on November 28, 1972 and the complaint

was filed on January 15, 1973, only 48 days later (App.

33, 36, 37). Moreover, the plaintiff did not invoke the

jurisdiction of the district court under this provision,

but only under 28 U.S.C. 155 and 1361 (App. 39).

Since Congress required, as a condition of invoking

the jurisdiction of the district court under Section

505, that 60 days’ notice be given to the Adminis-

trator prior to the filing of the suit, the failure to give

such notice resulted in the district court having no

jurisdiction under that Section. Since that section con-

stituted a waiver of sovereign imnimunity, the terms

upon which Congress consented to suit must be ob-

served. Soriano v. United States, 352 U.S. 270, 276;

United States v. Sherwood, 312 U.S. 584, 590-591. The

fact that had the plaintiff given such notice, it was

unlikely that the Administrator would have changed

his action, is immaterial. Cf. United States v. Tucker

Truck Lines, 344 U.S. 33, 37.

Finally, for the reasons we now discuss, the action

of the Administrator here challenged was diseretion-

ary, and hence not cover ed by Section 505(a).

29, The judicial review provisions of the Adminis-

trative Procedure Act (5 U.S.C. 701-706) are appli-

cable “except to the extent that—(1) statutes preclude

judicial review; or (2) ageney action is committed to

scones te ese teat ee

42

ageney discretion by law’ (5 U.S.C. TOL(a)). These

two exceptions must be read together. The exception

for matters “committed to agency discretion by law”

covers more than the situation where the statute pro-

vides that the administrative action is not subject to

judicial review, such as 388 U.S.C. 211 (a), “which

prohibits judicial review of decisions of the Adminis-

trator [of Veterans Affairs] (Johnson v. Robison, No.

72-1297, decided March 4, 1974 (slip op. p.3)). Rather,

it retlects the congressional judgment that administra-

tive determinations that turn upon the exercise of

discretion are not to be judicially reviewed under the

Administrative Procedure Act. Panama Canal Co. Vv.

Grace Line, Inc., supra, 356 U.S. at 317-319.

In the Panama Canal case, the court held that a

suit to compel the Canal Company to preseribe new

tolls for the use of the Canal and to refund tolls

allegedly illegally collected raised issues that were

“by law committed to ageney discretion” within the

meaning of Administrative Procedure Act (356 U.S.

at 317). Noting that determining the proper level of

tolls for the Canal ‘involve[s] mice issues of judg-

ment and choice * * *

Which require the exercise of

informed discretion” and requires the Canal Company

to make ‘questions of judgment requiring close anal-

ysis and nice choices”? (356 U.S. at 317, 318), the

Court concluded: “*the initiation of a proceeding for

readjustment of the tolls of the Panama Canal is a

matter that Congress has left to the discretion of the

Panama Canal Co.” (id. at 317).

Similarly, the action of the President, acting

through the Administrator, in setting the levels of

Le)

43

allotment is committed to agency discretion by law.

The words in the Administrative Procedure Act **by

law’? are not limited te a statute that specifically

commits the matter to the agency, since that inter-

pretation would render superthious the other exception

for situations where “statutes preclude judicial re-

view.” Rather, the determination whether a matter is

committed to agency discretion depends upon the

entire statutory scheme. Here, as we have shown above,

the Water Pollution Control Act Amendments leave

the making of the allocation to the discretion of the

Executive Branch.

Tndeed, unlike some statutes which provide guide-

lines for officials to consider in exercising their dis-

cretion (see, e.g., Secretary of Agriculture Vv. Central

Roiy Refining Co., 338 U.S. 604), here the governing

statute does not announce any specific precepts that

are to guide the President in determining allottments.

On the contrary, the legislative history discussed above

shows that Congress recognized that under the Act

the President would have discretionary authority to

control the rate of spending by initially committing

less to the program than the total amounts authorized

in Section 207.

The determination of the amount of funds to be

ulotted at a particular time is the essence of discre-

tionary action, and is not subject to judicial revision

upon the claim shat the allottment actually made con-

stituted an abuse of discretion. Indeed, it is difficult

to formulete an appropriate basis upon which a court

properly could review the validity of the President's

SRP ROTORS ODI IL LRM NERC A 4

44

discretionary determination in setting the particular

level selected.

The court of appeals suggested that on the remand

the district court should consider whether there has

been “a withholding of so substantial an amount of

the appropriation as to make impossible the attain-

ment of the legislative goals” (Pet. App. B, p. 46A),

whether “the Administrator, in exercising his discre-

tion under Section 205, acted so arbitrarily as to

frustrate the attainment of the legislative goals’? (id.

DOA), and “whether the factors used by the defendant

| Administrator] in fixing the allotments were the

ones that were ‘relevant’ under a proper construction

of the discretionary power found to exist in the exee-

utive’ (id. SBA). In his letter directing the Adminis-

trator to allot not more than #2 billion for fiscal year

1973 and not more than *3 billion for the following

fixeal year, however, the President stated that his deci-

sion, while “providfing] for improving water qual-

ity.” “recognizes the highest national priority, the

neal to protect the working men and women of

America against tax increases and renewed inflation”

(App. 16).

In other words, the President ordered these par-

ticular limits upon the amounts to be allocated pri-

marily to avoid a tax inerease and inflation. It was

because Congress recognized that the President should

have discretion to control the rate of spending in

order to further these interests that it authorized him,

acting through the Administrator, to commit less to

this program initially than the total amounts an-

thorized.

4

In these circumstances, it was inappropriate for

the court of appeals to direct the district court to

conduct the freewheeling inquiry that would neces-

sarily be involved in deciding such questions as

whether the amount withheld through allotment would

“frustrate” or “make impossible’ the ‘‘attainment

of the legislative goals.” Such an inquiry Yaixes @X-

tremely complex and difficult issues relating to the

proper effectuation of legislative policies by the Ex-

ecutive Branch that the courts are ill suited to resolve.

They involve determinations that Congress has com-

mitted to the executive branch of government, not to

the judicial branch.”

The court of appeals may have been questioning

whether the President properly could reduce allott-

ments in order to further broad national fiseal policies

not directly related to the Water Pollution Control

Program itself. In State Highway Commission of

Missouri v. Volpe, 479 F. 2d 1099 (CLA, 8), the court

adopted that limited view of the scope of the Seeretary

of Transportation's discretionary authority to obligate

*As the Administrator testified :

If fixcal responsibility is to be achieved. as the President

has resolved it will be. hard decisions to fund Federal pro-

grams at lew than their maximums may be necessary. The

inevitable eriticiam and controversy should not deter those

decisions.

“As I mentioned earlier, the responsibility to make the

decision on funding was placed on the President's shoulders

by the legislation itself. It is a difficult and complex re-

sponsibility and it has been carried out in the full context

of a comprehensive and long-range policy directed toward

the health and prosperity of the Nation.

Joint Hearings. supra. p. 405.

CS LOC 8 OC ee ee

or

B- ee

46

less than the total amounts authorized under the Fed-

erval-Aid Highway Act of 1956. There the court relied

upon what it deemed to be indications that Congress did

not intend to sanction withholding of funds under that

statute as an anti-inflation measure (479 F. 2d at 1115-

1116) and it interpreted the statute itself as providing

that apportioned funds are not to be withheld from

obligation for purposes totally unrelated to the high-

way program’ (id. 1116, footnote omitted ).”°

The statute involved in this case, however, contains no

such indication. To the contrary, av we hove shown,

the legislative history indicates that Congress recog-

nized that the Executive could control the rate of spend-

ing because of general fiseal considerations unrelated to

the program.”

In holding that the discretionary action of the

Administrator in this ease was not excepted from

judicial examination by the Administrative Procedure

Act’s exemption for “matters committed to agency

discretion,” the court of appeals relied (Pet. App. 1, p.

45A) upon this Court's statement in Citizens to Pre-

We submit that the court in State [ghiray misconstrued the

statute there at issue.

* The question whether Congress's use of mandatory language

can subsequently prevent the President from spending les than

the total amount appropriated for a particular program, when

the reduction is necessary to protect the financial integrity of

the government, presents difficult and complex constitutional

issues involving the allocation of powers. Since the legislative

history shows that Congress recognized in the Water Pollution

Control Act Amendments that the President would and should

have discretion to control the rate of spending because of general

fiseal considerations, there is no occasion for the Court here to

reach the broad constitutional issues, and accordingly we do not

discuss them.

47

serve Overton Park v. Volpe, 401 U.S, 402, 410 that

“[t]his is a very narrow exception * * * that it is ap-

plicable in those rare instances where ‘statutes are

drawn in such broad terms that in a given case there

ix no law to apply.’” The present case is one of those

“rare instances” since here, unlike the situation in

Overton Park, Congress has not prescribed the stand-

ards the President is to apply in deciding how much

of the amounts authorized are to be initially allocated.

Although the Water Pollution Control Act Amendments

specify in detail the criteria for determining whether

a particular project should be authorized, they do not

provide standards by which the discretionary allot-

ment authority is to be exercised.

The inquiry which the court of appeals directed the

district court to make would thrust the courts into the

area of political judgments by requiring managerial!

decisions. Criteria fitted for judicial decision-making

are absent. The district court would thus be asked to

make a decision that courts have always eschewed as

political questions. Such issues are not justiciable in

the federal courts. Colegrove v. Green, 328 U.S. 549;

Baker v. Carr, 369 U.S. 186, 208-237. “In determining

whether a question falls within that [political ques-

tion] category, the appropriateness under our system

of government of attributing finality to the action of

the political departments and also the lack of satis-

factory criteria for a judicial determination are domi-

nant considerations” (Coleman v. Miller, 307 U.S.

433, 454-455, footnote omitted). Both of these con-

siderations show that the propriety of the amounts

s

;

*

7

ik

:

F

R

E

b

48

the Administrator has initially allotted, pursuant to

the direction of the President, presents an unstruc-

tured managerial issue or political question that is not

for judicial resolution.

CONCLUSION

The judgments of the court of appeals in both cases

should be reversed and the cases remanded to the dis

trict court with instructions to dismiss the complaints.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Carta Hits,

‘Assistant Attorney General.

Dante. M. FriepMan,

Deputy Solicitor General.

tpmMuND W. Kitcu,

"Assistant to the Solicitor General.

Rovert E. Korr,

Evowe EF. Davies,

Attorneys.

Jury 1974.

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