Amicus Curiae Brief — Train v. City of New York

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WUPREME COURT, U. B

In the Supreme Court of the

October Term 1973.

Nos. 73-1377 and 73-1378

On Writs of Certiovart to the

Sor the District of C D

Pan DIB OA A ROBE a NaS A A ELLE LED PE CREDIT!

CUAL IOMNS ycaereeeeeccsnceaes couseeusatwe stead vi

STATEMENT OF INTEREST OF AMICUS

ANION a cee a neice seeenetetees nes 444 aueeeeen wuss \N

STATEMENT OF FACTS ....................005. y 2

SUMMARY OF ARGUMENT .................... 3

PAI cexus eagen so ctaacae ner ceo one ne- +)

1 THE PLAIN MEANING AND LEGIS-

LATIVE HISTORY OF THE ALLOTMENT

PROVISIONS OF THE WATER POLLUTION

CONTROL ACT, TOGETHER WITH THE

OVERALL STRUCTURE OF THE ACT,

DEMONSTRATE THAT THE ADMINIS-

TRATOR HAS NO DISCRETION TO

REFUSE TO ALLOT

A. THE HISTORY AND PLAIN MEANING

OF THE AUTHORIZATION AND

ALLOTMENT PROVISIONS (SECTION

205 AND SECTION 207) SHOW THAT

ALLOTMENT IS MANDATORY. ....... 6

1. THE PLAIN MEANING OF THE

ALLOTMENT PROVISION RE-

QUIRES ALLOTMENT OF THE

FULL SUMS LISTED IN SECTION

ile seve wan shed ascscuedueses Aesee Oke 7

2. THE LEGISLATIVE HISTORY OF

SECTIONS 205 AND 207 SUPPORTS

THE CONCLUSION THAT WHILE

THERE IS DISCRETION WITHIN

THE ACT TO CONTROL OBLIGA-

tea PPO APG ABDI ie i oe

TIONS, THERE IS NO DISCRETION

AT THE ALLOTMENT PHASE. .... 9

3. STATEMENTS IN LEGISLATIVE

HISTORY REFERRING TO AU-

THORITY TO “IMPOUND” CON-

FER NO AUTHORITY TO REDUCE

ALLOTMENTS.

: B. EXPRESS GOALS AND OVERALL

FUNDING STRUCTURE OF THE ACT

DEMONSTRATE THAT ALLOTMENT

OF AUTHORIZED SUMS IS MANDA-

TORY. ......c cece eeeeee eee ceveeeseee 18

|. GOALS OF THE ACT EXPRESS A

NATIONAL COMMITMENT OF

FUN DS TO RESTORE THE WATERS

OF THE UNITED STATES ......... 20

2. PERMISSIVE OR MULTIPLE AL-

LOTMENTS WOULD FRUSTRATE

THE INTENT OF THE ACT TO EN-

COURAGE LONG RANGE PLAN- |

ht fen uke ease ee eas 23

3. THE INTERNAL LOGIC OF THE

ACT READ WITH THE REALLOT-

MENT PROVISION, SECTION 205

(b), INDICATES ALLOTMENT TO

BE MANDATORY. 2.265000 00000008 25

4. SECTION 206 (f) (1), WHICH PRO-

VIDES FOR ADVANCE OBLIGA-

TION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS

MEANINGLESS UNLESS_ AL-

LOTMENT IS MANDATORY. ...... 27

NAGLE it DOLD May CA te Wi I.

iii Page

5S. THE OBLIGATION PROVISION

AS WRITTEN INDICATES THAT

THE OBLIGATIONAL PHASE

RATHER THAN THE ALLOTMENT

PHASE IS DISCRETIONARY ....... 28

C. ALLOTMENT IS A BUDGETARY

MECHANISM WHICH IS BOTH GEN-

ERALLY MANDATORY AND SPE-

CIFICALLY MANDATORY IN THE

CONTEXT OF THE ACT................ 28

D. EVEN IF DISCRETION IS FOUND. THE

ADMINISTRATOR'S ACTION IN WITH-

HOLDING FIFTY-FIVE PERCENT OF

AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE

EXPRESSED GOALSOF THE ACT _..... 32

REFUSAL TO ALLOT FIFTY-FIVE PER-

CENT OF THE AUTHORIZED FUNDS IS

OUTSIDE THE CONSTITUTIONAL AUTHOR-

ITY OF THE EXECUTIVE BRANCH...... 35

A. THE “FAITHFULLY EXECUTE”

CLAUSE OF THE CONSTITUTION

DOES NOT ACCORD DISCRETION TO

REFUSE TO IMPLEMENT CONGRES-

SIONAL ENACTMENTS. ............ ... 36

B. THE EXECUTIVE DOES NOT HAVE

INHERENT AUTHORITY TO REFUSE

TO CARRY OUT THE PURPOSES AND

PROVISIONS OF CONGRESSIONAL

PROGRAMS DULY ENACTED INTO

I SFE RS ARR Oa Ne NS PE aR RERUN ARENT Nt INS IRE BEBE LON ION EN EN PIG ELE ME ME CoN

BR MMRBK Sa lyie anced paaribs

iW ANSE Eee este Re

DRAM ies ae

1) iS Tae

BER AER i RAL FQ

RANA ey aor ert eee

ie at ky

THE EXECUTIVE’S REFUSAL TO IM-

PLEMENT THE WATER POLLUTION

CONTROL ACT, EVEN AFTER PAS-

SAGE OVER AN EXECUTIVE VETO,

REPRESENTS AN UNCONSTITU-

TIONAL EXPANSION OF THE VETO

POW CR ova wee tien pee nt ne ebh es ce6 aes che ws

Ill. THE SOVEREIGN IMMUNITY DOCTRINE

IS NO BAR WHEN THE ADMINISTRATOR

FAILS TO PERFORM A STATUTORY DUTY

OR EXCEEDS HIS DISCRETION............

IV.

Cc.

THE ADMINISTRATOR’S ACTIONS

ARE IN VIOLATION OF HIS LEGAL

DUTIES UNDER THE ACT AND CON-

SEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN “OFFICER SUIT,”

A WELL ESTABLISHED EXCEPTION

TO SOVEREIGN IMMUNITY ...........

THE ADMINISTRATIVE PROCEDURE

ACT OPERATES AS A WAIVER OF

SOVEREIGN IMMUNITY AND

PERMITS REVIEW OF THE ADMINIS-

TRATOR’S REFUSAL TO ALLOT ......

SOVEREIGN IMMUNITY IS SPECIFI-

CALLY WAIVED BY SECTION 505 OF

THE WATER POLLUTION CONTROL

DETERMINING THE ADMINISTRATOR'S

AUTHORITY TO ALLOT LESS THAN AU-

THORIZEDAMOUNTSISJUSTICIABLEAN D

NOT BARRED FROM REVIEW BY THE PO-

LITICAL QUESTION DOCTRINE OR THE

ADMINISTRATIVE PROCEDURE ACT

eh SPL Sl OSA S56 GN ee ERP LESLIE LIONEL 8 OPT HT OG BEATE TE EE

A. REVIEW OF THE ADMINISTRATOR'S

FAILURE TO COMPLY WITH THE AL-

LOTMENT PROVISION OF THE

WATER POLLUTION CONTROL ACT

IS JUSTICIABLE AND NOT A **POLITI-

CAL QUESTION.” ....:.....<.. AT eTTe Tes 63

B. THE ADMINISTRATIVE PROCEDURE

. ACT DOES ‘NOT BAR REVIEW.AS A

MATTER COMMITTED TO.AGENCY

&- NX DISCRETION. ....00...0002 00 cee ceeeeee: 66

SY CONCLUSION ......... cece cece cee ccccceuw sees 68

APPENDIX ............. eeuen seus oeeeeeeeee. 69

seaiaienian —_

Sides SNS Oc

~~ 196 able Me PAA ANS GM PEA VEO i Sent

CITATIONS

CASES | Page

American Ass'n of Colleges of Podiatric Medicine v.

Ash. Civil No. 1139-73 (D.D.C.. Oct 26. 1973). .... 44

Arp v. United oO 244 F.2d S71 (10th Cir.). cert.

denied, 355 U. tare ied eeewepespbseeseeeus . 58

Baker v. Garr, 369 U.S. 186 (1962) ..00.0..0.... 63 - 65

Blackmar v. Guerre. pe U.S. 512 (1982) ...4.....% . 55

Boyden vy. Comm’r of Patents. 441 F.2d LOFT ( D.C. Cir.).

cert. denied, 404 U.S. 842 (A971) ooo ee. 7

Brown v. Ruckelshaus. 364 F. Supp. 258 (C.D. Cal.

pik) DEReeree CEPT ee eee eee eee ee 14, 49, 51, 53, 58, 64

SN ee ee

Tee oes 7

Campaign Clean Water. Inc. v. Ruckelshaus, 361 F. Supp.

689 (E.D.- Va.). remanded with directions sub nom.

Campaign, Clean Water. Inc. v. Train, 489 F.2d 492

(4th Cir. 1973) .0.0.00.00.0.020000. 14, 32, 49, 51, 64, 65

Church/of the Holy Trinity v. United States. 143 U.S.457

Es foe bala ce hie ous deh aes eins 8552499447 4409 509 7

Clakamas County v. McKay, 219 F.2d 479 (D.C. Cir.

1954), vacated us moot, 349 U.S. 909 (1958) 00000... 55

Citizens to Preserve Overton Park. Inc. v. Volpe. 401

. U.S. 402 (1971) 0.2... TLE TTT PETE TTT 33, 66, 67

City-wide Coalition v. Philadelphia Housing Auth.. 356

F. Supp. 123 (E.D:. Penn. 1973) ..........2........ 60

Community Action Programs Executive Directors Ass'n

of New Jersey. Inc. v. Ash. 365 F. Supp. 1355

CED, TRE, TR cee ois bee ede aen cebu wee eeendas 44

Constructores Civiles de Centrouamerica, S.A. v.

Hannah, 489 F.2d 1183 (D.C. Cir. 1972) ........... 56

Dugan v. Rank. 372 U.S. 609 (1963) 0000000000000.... 50

Estrada v. Ahrens. 296 F.2d 690 (Sth Cir. 1961)....... 56

Florida v. Train, No. 73156 (N.D. Fla.. Feb. 25. 1974).

appeal argued, Civil No. 73-3968, Sth Cir.. Apr. 29,

iL Eee Tee Se TTC eee SET ee eer eee TT Teer e $1

A OL Nea Re GE Bat et

" g vi

Cases - Continued Page

The Floyd Acceptances. 74 U.S. (7 Wall.) 666 (1868). . 50

Fong Yue Ting v. United States. 149 U.S. 698 (1893) . 43

Guadamuz v. Ash. 368 F. Supp. 1233 (D.D.C. 1973).. 7

by eeu HAAR MEOH AE EERE ee ee ee be daeee 8, 41, 44, 47, 49, 64

Hamilton v. Rathbone, 178 U.S. 414 (1899) .......... 8

Highland Park v. Train. 374 F. Supp. 758 (N.D. HL

TAY: pric ae eee na neces eeeense ns eeebhensneesa 60

Housing Authority of San Francisco v. HUD.

340 F. Supp. 654 (N.D Cal. 1972) 0000000000000... 49, 52.

In Re Neagle. 135 U.S. 1 (1890) .................... 46

Iselin.v. United States. 270 U.S. 245 (1925). .0........ 9

Kendall v. United States ev rel. Stokes. 37 U.S. (12 Pet.)

DEM CONE 5555 6 oxo 6404 apes en er eeenenssaeess 41

Kietschka v. Driver. 411 F.2d 436 (2d Cir. 1969) ...... 56

Land v. Dollar. 330 U.S. 731 (1947) ...0..0.2........ 49, 52

Larson v. Domestic & Foreign Commerce Corp.. 337

U.S. 682 (1949) 00 ccc ce cece 50, 52

Lee Fook Chuey v. Immigration & Naturalization

Serv., 439 F.2d 244 (Mh Cir. (1970) ...............-. 19

Legal Tender Cases. 79 U.S. (12 Wall.) 4571871)... 43

Liverpool Borough Bank v. Turner. 45 Eng. Repr. 715

(1860). aff'd. 70 Eng. Repr. 703 .................. 19, 20

Local 2677. AFGE v. Phillips. 358 F. Supp. 60(D.D.C.

ES) ena 41, 44, 49, 54, 56, 64

Louisiana v. Weinberger. 369 F. Supp. 856 (E.D. La.

SGTS) prec pxsnenev here beens eudeessns 40, 44, 49, 51, 64

Marbury v. Madison. § U.S. (1 Cranch) $37 (1803).... 63

Martin-Trigona v. Ruckelshaus. No. 72-3044(N.D. IIL.

June 29, 1973) 20000 ccc cc cee eens 14

Massechusetts v. Weinberger. Civil No. 1308-73

(D.D.C.. July 26. 1973). reprinted in 119 CONG. REC.

$15044 (daily ed. July 30. 1973) 22.02.0200... 40, 44, 64

Miller v. Amusement Enterprises. Inc.. 394 F.2d 342 (Sth

Ci, I9OB) ccc cece ce eee eee 19

Minnesota v. USEPA. No. 4-73 Civ. 133 (D. Minn..

June 25. 1973). appeal argued, Civil No. 73-1446.

Sth Cir.. Feb. 13. 1974 ....... 0. cee eee 31

viii

Cases - Continued

Montgomery Environmental Coalition v.— Fri,

366 F. Supp. 261 (D.D.C. 1973)... 2.0.0.0 6 eee. 60, 61

National Council of Community Mental Health Centers,

Inc. v. Weinberger, 361 F. Supp. 897 (D. D.C. 1973)

pees scenes shee eaNe ees Eee eaeee ee 41, 44, 47, 49, 53, 63, 64

NLRB v. Fruit & Veg. Packers, Local 760, 377 U.S. 58

CTDOR) 5.055.555 0405 cose eno Keke Renee aA a pe eewades 15

National League for Nursing v. Ash, Civil No. 1316-73

(D.D.C.. July 10, 1973) 20... ee eee 44

National Treasury ener Union v. Nixon, 492 F.2d

S87 (1974) Pence eee ees 41, 52, 64, 65

New York v. Ruckelshaus, 358 F.Supp. 669 (D.D.C.

1973). aff'd sub nom.New York v. Train, 494 F.2d

1033 (D0. Cr 1978) occ ccs cuvesecccewess 31, 51, 53, 64

New York v. Train, 494 F.2d 1033 (D.C. Cir. 1974)...

ee ere ee ere eee 12, 14, 22, 24 - 27, 30, 31, 49, 51

Oklahoma v. Weinberger, 360 F. Supp. 724 (W.D. Okla

OTD). 4c i ngabast Oe a weenie tee exe ede wenn ee s 44

Pealo v. Farmers Home Administration, 361 F. Supp.

Se IPT Bhs 505 555d eae oes e oa bee eed Veer aeeeses 65

Richards v. United States, 369 U.S. 1 (1962) ......... 19

Riverside v. Ruckelshaus, 4 ERC 1728 (C.D. Cal 1972) 59 - 61

Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971) 50, 53, 54

San Francisco Redevelopment Agency v. Nixon, 329

F. Supp. 672. (N. D. Cak. 1971) 5 sop weswensceees es 49, 52

Scanwell Labs... Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir.

di) ET CT Serer er ee en lees - 56

Seafarers Intl Union of N. America v.

Weinberger. 363 F.Supp. 1053 (D.D.C. 1973)....... 64, 65

Shapiro v. United States, 335 U.S. (1948)

Stanfield v. Swenson, 381 F.2d 755 (8th Cir. 1967) .... 7

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819). 8

State Highway Comm'n v. Volpe, 479+F.2d 1099 (8th

CP ST oe aren adoeme 16, 18, 19, 26, 30, 34, 39, 49, 54, 64

Texas v. Fri. No. A-73-CA-38(W. D. Tex., Oct. 2, 1973),

appeal argued, No. 73-3965, Sth Cir.. April 29, 1974 .

ee ee Ee eT eT eR ee 14, 24, 31, 53

Cases= Continued Page

Udall v. Wisconsin, 306 F.2d 790 (D.C. Cir. 1962), cert.

denied, 371 U.S. 969 (1963) 2... ee eee 29

United States v. Curtiss-Wright Export Corp., 299

OR | ee 44, 47

United States v. Great N. Ry. Co., 343 U.S. 562

(94 paar ea 13

United States v. Menasche,. 348 U.S. 528 (1955) ...... 27

United States v. Midwest Oil Co.,236 U.S. 459 (1915). 44, 46

United States v. Shreveport Grain & Elevator Co., 287

oe TT Tek 0s Bex oP xn es Koh esos oe 0k naee ness 8

United States v. Spreckels, 50 F. Supp. 789 (N.D. Cal.

SHOE oc Gas 5 ote a ew S PORES OK 4a BAR ea eee as DR as 59

Warner v. Cox, 487 F.2d 1310 (Sth Cir. 1974) ......... 56

Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969) ... 52

Weinberger v. Hynson, Westcott & Dunning, Inc.. 412

U.S. 609 (1973)........ Smee SR a Poa a ease oe eee eM 27

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

DIANE) velo ase s ssa exes FECES ONE 38, 39, 42, 43, 46

Constitution and Statutes

A) eee MN, BR. Bote aria sascha eanereseee es 43, 45

EOE es, 2) ee err ee 42

Administrative Procedure Act. Section 10. 60 Stat. 243-

he RE ES BEE e Oat ale pen vouy Sheen 55, 66

12-°U.S.C. $1094 (Supp. 111972) 20... 0. cece eee 40

Be Ge ae So en er On ano tre ee 39, 40

oY BS es aE SOE i aS ae eae ee 2y

DN ee a EEA Aes OU Bas Daa 59

Cea el. SPOOR LOR i fic oues Shaan ees eteiee- cathe 49

a Eee Gis eG mem ees pea beau ome 59

UIP sa. re ari RI SDR CAHOR TRE HA GEE oe

. :

CNS SiR AIK cp GAS.

gOS SNOB AIOE NE BL RRP IRM IS DOE GEE T Ne

Constitution and Statutes - Continued Page

Oe Nisha WUMEE 254 oe vec eee cede ee eben dees eee tees 49

BT U.S.C. 813 0c eee eee eee eee eens 36 - 39

31 U.S.C.A. §581e-1 (Supp. 1974) 0000.0 16

BA SG... SOR UG) 65-050 sano hes v2 6a sabe ek ees ead yg

BET A STL. sede wis 666505 06 eRe nee eee ene eans 25

31 U.S.C.A. §757 (b). note (Supp. 1974) ............. 37

AT USCA, BAST USO. FRG ore nc Ns ce vesnees 38

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500 (Oct. 18, 1972),86 Stat. 816,

33 U.S.C.A. §§1251 et seg. (Supp. 1974) :

RAGE CB) ic wae tcc cee pia concdsaeteeasceiwnsdeveass 20

$201 (a) occ cc lec ccc ccc cece eee vee sees cnnee ‘20

WS hon ca tue Hens sates sno eneoeae ee tne etanuee’ 24, 28

a ee cre eee aera erect, Sree 28

Be ch 4 ee caee ee ha ones an ews 6 - 9, 13, 23, 25, 26, 29

TED cvs ode wea sees ansecaneestenss: 27

BOF cb ects eh eager sees esas eee 6 - 10, 31, 62

ON i ine we ce kbes ee sheeyet ees caus 57

ON has dry Hie hep seeebeconte Cae anes 57, 58, 60, 62

42 U.S.C §§1401-35............ De atesans webasteene 49

BS UT ee sn ines hb Sos KOH re ees 59

Pub. L.. No. 92-336 (July 1. 1972), 86 Stat. 406........ 37

Pub. L. No. 92-599 (Oct. 27, 1972), 86 Stat. 1324 .... 37, 38

Pub. L. No. 93-53 (July 1, 1973), 87 Stat. 134......... 37

Pub. L. No. 93-173 (Dec. 1, 1973), 87 Stat. 691........ 37

Pub. L. Ne

SSO ty Fao Te) oa ee aA PS 65

a poomaersur ORS i

Oe a ne ee ea Mee SOLS ya BSE ee FS MATADOR at SR

MISCELLANEOUS

ADVISORY COMM'N ON INTERGOVERNMENTAL

RELATIONS, THE GAP BETWEEN FEDERAL AID

AUTHORIZATIONS AND APPROPRIATIONS.

FISCAL YEARS 1966-1970 (1970). 2.2. 000.0.0.......... 292

THE BUDGET OF THE UNITED STATES GOVERN-

MENT -- APPENDIX (1973) ........0. 02.2000 e eee 38

S. BAILEY, CONGRESS MAKES A LAW: THE STORY

BEHIND THE EMPLOYMENT ACT OF 1946 (1950)... 40

WOT PR 954 FIST?) vac cccc ce dsusencacutceds 60, 61

BO CR S155. 3 (Oy) 25 ence dacs cae eantias 61

Comment, Presidential impoundment of Funds: The

Judicial Response, 40 U. CHI. L. REV. 328 (1973) 2. 55

93 CONG: -REC; SOST-45 (19ST) ove chee ee RG eee ae 38

IG ICONG,. REC TAO 119) oie ee 20

117 CONG. REC. (daily ed. Nov. 2. 1971) ......... 22 - 24

118 CONG. REC. (daily ed. Mar. 29, 1972) ......... 24

118 CONG. REC. (daily ed. Oct. 4. 1972) .......... 10, 11,

ee rer er le rere Tee 16, 18, 20, 21, 33

118 CONG. REC. (daily ed. Oct. 10, 1972) ........... 38

118 CONG. REC. (daily ed. Oct. 17, 1972) ...13, 20 - 22, 38

118 CONG. REC. (daily ed. Oct. 18, 1972) ........... 38

119CONG. REC. (daily ed. July 30, 1973) ........ 40, 44, 64

119 CONG. REC. (daily ed. Nov. 27, 1973) ...)....... 40, 45

120 CONG. REC. (daily ed. Mar. 28, 1974) ........... 39

120 CONG. REC. (daily ed. June 21, 1974) .......... 66

120 CONG. REC. (daily ed. July 15, 1974) ..... See shoes 65.

E. CORWIN. THE PRESIDENT: OFFICE AND POWERS

RET yr i ae etre eng Cig hoe 48

5 J. ELLIOT, DEBATES ON THE ADOPTION OF THE

FEDERAL CONSTITUTION (ed. 1941) .............. 48

Fisher, Presidential Spending Discretion and C€ ‘oneress-

jonal Controls, 37 LAW & CONTEMP. PROB. 135

(1972)

Miscellaneous - Continued Page

Fisher, Jmpoundment of Funds: Uses and Abuses,

23 BUFFALO L. REV. 141 (1973). ................ 44. 46

L. FISHER, COURT CASES ON IMPOUNDMENT OF

FUNDS: A PUBLIC POLICY ANALYSIS. (Congress-

ional Research Service, Library of Congress. multilith,

BUPA oa 5s oe os ec xe eee 6040485994845 51

Hearings on Executive Impoundment of Appropriated

Funds Before the Subcomm. on Separation of Powers

of the Senate Comm. on the Judiciary, 92d Cong., Ist

Ae Ld | ee ree aa ne ee 30, 39, 46

Hearings on “Sovereign Immunity’? Before the Sub-

comm, on Administrative Practice and Procedure of

the Senate Comm. on the Judiciary, 91st Cong., 2d

WE CUEUE os bacdva nancies dae snenoxbeaeencnxeeds 49

H. R. Doc. No. 398, 69th Cong. Ist Sess. (1927) ..... 42

H. R. REP. NO. 1797, 81st Cong., 2d Sess. (1951) ..... 17

H. R. REP. NO. 1465, 92d Cong.. 2d Sess. (1972) ...12, 29

H. R. REP. NO. 1606. 92d Cong., 2d Sess. (1972)..... 38

H. R. REP. NO. 1614, 92d Cong., 2d Sess. (1972)..... 38

H. R. REP. No. 1101, 93d Cong., 2d Sess. (1974) . 65

Joint Hearings on §. 373 Before the Ad Hoc Subcomm.

on Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm., on Separa-

tion of Powers of the Senate Comm. on the Judiciary,

93d Cong., Ist Sess. (1973) .............. 17, 44, 46, 48

Letter from President Nixon to William D. Ruckelshaus,

EPA Administrator, November 22, 1972, reproduced

in Hearings on Federal Budget for 1974 Before the

House Comm, on Appropriations, 93d Cong., Ist

eas Tee TT so cus 065k nea oe es Or 34

Letter from Franklin Delano Roosevelt reproduced in

part in Hearings on H.R. 3598 Before a Subcomm., of

the Senate Comm. on Appropriations, 78th Cong.. Ist

SOGS, Fee a oo kala peas A eee eee 45

Levinson & Mills, /mpoundment: A Search for Legal

Principles, 26 U. FLA. L.REV. 191 (1974)5, 40, 43, 44, 46

Miscellaneous - Continued Page

Levinson & Mills, Budget Reform and Impoundment

Control, 27 VAND. L. REV. 615 (1974) 2... .0000.020.. 46

Library of Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972 (1973)... 12

Findings of McIntosh Foundation Executive Impound-

ment Project, 119 CONG. REC. $21120 (daily ed. Nov.

fly ROE s cant pad baedeenn yas ashen eee eu deor das v0 40, 45

Memo from William Rehnquist reproduced inJoint Hear-

ings on §..373 Before the Ad Hoc Subcomm. on

Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm. on Separa-

tion of Powers of the Senate Comm. on the Judiciary,

93d Cong., Ist Sess. 390, 394 (1973) 2.00.00 00, 41

Miller, J/mpoundment: The New Constitutional Crises,

THE PROGRESSIVE, March, 1973................... 44

N.Y. Times, April 20, 1973, at I1,col.5.......0.......... 4

Note. /mpoundment of Funds, 86 HARV. L. REV. 1505

CUGTSY os deci ai eeneduae eke csaagn eggs e eure 37, 38, 45

Note, The Item Veto in the American Constitutional

Svetem, 25 GEO: LL. J. FOG (ISSG)) 22. es ceese css: 48

Note, Protecting the Fisc: Executive Impoundment

and Congressional Power, 82 YALE L. J. 1636

Ey 5) Se ees, Oe re es ere aera ee ae 65

OMB Report Under Federal Impoundment & Informa-

tion Act:

38-Fed. Reg. 19,581-82 ‘(1973) .........60cceeeee. 40,47

oe ae RS ae ke: ee en erie 16, 39

PUBLIC PAPERS OF THE PRESIDENT. State of the Union

ES SUMS TE OT se Oe is cee ea ba aes 5

P. ROBERTS. MODERN GRAMMAR (1968).........--- 13

S. REP. No. 414, 92d Cong.. Ist Sess.(1971) .......-. 59

S. REP. No. 1292, 92d Cong. 2d Sess. (1972) ......... 37, 38

S. REP. No: 249, 93d Cong., Ist Sess. (1973) ......... 37

Shinn, The Federal Grant Program to Aid Construction of

Municipal Sewage Treatment Plants: A Survey of

the 1972 FWPCA Amendments, 48 TUL. L. REV. 85

EN a | Cr errs a erin ren 29

SENS Senne

SO EROS ae aaa tee

FS AD ed

Nap eA ee ee Cee

UNa ee ey

ihe

Pee tater

NIN

Miscellaneous - Continued

Stanton. The Presidency and the Purse: Impoundment

1803 - 1973, 45 U. COLO. L. REV. 25 (1973) ........

Student Project. Federal Administrative Law Develop-

ments - 1971, 1972 DUKE L. REV. TIS) ........ jas

U.S. BUREAU OF THE BUDGET. EXAMINER'S

HANDBOOK (1952) (quoted by J. Williams. The Im-

poundment of Funds by the Bureau of the Bidget

(1955) cited in Joint Hearings on §. 373 Before the Ad

Hoc Subcomm. on Impoundment of Funds of the

Senate Comm. on Government Operations and the

Subcomm. on Separation of Powers of the Senate

Page

Comm. on the Judiciary, 93d Cong. Ist Sess. (1973),17, 18

1972 U. S. CODE CONG. & ADM. NEWS

USEPA, Report to the Congress: Costs of Construction

of Publicly-Owned Wastewater Treatment Works A-2,

B-1. (1973)

U. S. OFFICE OF MANAGEMENT & BUDGET. CIR-

CULAR NO. A-34, INSTRUCTIONS ON BUDGET

REC CUI EIST tis wo orien cok nee eee pee oe

R. WALLACE. CONGRESSIONAL CONFROL OF

FEDERAL SPENDING (1960) ... 07... .e eee eee.

9 WEEKLY COMPILATION OF PRESIDENTIAL DOC-

RET ie 00 ets 4 eed ones keh ssawrsoeens

Williams. The impounding of Funds by the Bureau of the

Budget, reprinted in Joint Hearings on §. 373 Before

i 2

the Ad Hoc Subcomm. on tmpoundment of Funds of

the Senate Comm, on Government Operations and the

Subcomm. on Separation of Powers of the Senate

Comm, on the Judiciary, 93d Cong... Ist Sess. (1973)

CF See CLES 26 LO) we Oe BONO e 8) 28. 8 blip pte Ss ene. CR C050 Be 8. woe dos: Bek

AP MIP SB ALGO PO NH

STATEMENT OF INTEREST OF AMICUS CURIAE

The Center for Governmental Responsibility files this brief

as amicus curiae under rule 42 (2) with the consent of both Re-

spondents and Petitioner.

The Center is a privately funded non-partisan.

non-profit organization housed at the University of Florida

College of Law committed to the goal of promoting the ac-

countability of government officials and institutions to the

public. Its interest in this case emanates from its detailed

study of the impoundment controversy and its effort to imple-

ment its scholarly conclusions. The year and one-half study

>. was conducted by the Center's predecessor. the McIntosh

Foundation Executive Impoundment Project.* whose sum-

mary findings have been. reproduced at 119 CONG. REC.

$21120 (daily ed. Nov. 27. 1973). Tk@ Center has continued

the study of the impoundment issue to date. The study has pro-

duced, among other things, two law review articles: Levinson

& Mills. Jmpoundment: A Search for Legal Principles, 26 U.

FLA. L. REV. 191 (1974): Levinson & Mills. Budget Reform

and Impoundment Control, 27 VAND. L. REV. 618 (1974).

Further, the Center has acted as amicus curiae on the issue in

the instant case in three courts: Minnesota v.Train, No.

73-1446 (8th Cir., argued Feb. 13. 1974): Texas v. Train, No.

73-3965 (Sth Cir., argued Apr. 29. 1974): and Florida v. Train,

No. 73-156 (N.D. Fla. Feb. 25. 1974). appeal argued, Civil

No. 73-3965, Sth Cir.. Apr. 29, 1974. The Center's special

interest is in the legal development and resolution of federal

impoundment issues.

*This project is further described in Joint Hearings on §$.373

Before the Ad Hoc Subcomm. on Impoundment of Funds of the

Senate Comm. on Government Operations and the Subcomim. on

Separation of Powers of the Senate Comm, on the Judiciary, 93d

Cong.. Ist Sess. 22 (1973).

In the Supreme Court of the United States

October Term. 1973

Nos. 75-1377 and 73-1378

RUSSELL E. TRAIN, ADMINISTRATOR.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY.

J Petitioner

" ’.

THE CITY OF NEW YORK

ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY

SITUATED MUNICIPALITIES WITHIN

THE STATE OF NEW YORK. ET AL..

RUSSELL E. TRAIN, ADMINISTRATOR.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY.

Petitioner

‘

CAMPAIGN CLEAN WATER. INC..

On Writs of Certiorari to the United

States Court of Appeals for the

District of Columbia and the Fourth Circuits

BRIEF OF THE CENTER

FOR GOVERNMENTAL RESPONSIBILITY

AS AMICUS CURIAE

IN SUPPORT OF

THE CITY OF NEW YORK

—JSHj

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STATEMENT OF THE FACTS

In 1972, Congress passed the most extensive program for

cleaning the nation’s waters in history. The Federal Water

Pollution Control Act Amendments of 1972 [hereinafter cited

as the **Water Pollution Control Act’ or the **Act™’)

established ‘as a national goal the achievement of clean

waters in America by 1985. Congressional hearings on the

proposed legislation were extensive. The bill passed the

Senate by a vote of 74 to 0 and the House by 336 to II.

On October 17. 1972. the President vetoed the bill because

of what he termed “‘inflationary considerations.’’ Congress

considered the veto message and overwhelmingly overrode

the veto. In the House, the vote was 247 to 23: in the

Senate, 52 to 12.

Subsequently. on November 22, 1972, President Nixon

ordered the Administrator of the Environmental Protection

Agency not to allot the full amount provided in the final bill.

Nixon ordered allotment of two billion dollars in fiscal year

1973 and three billion dollars in fiscal 1974. The amounts

established in the bill were five billion dollars for fiscal 1973

and six billion dollars for fiscal 1974. The result was a cut-

back of fifty-five percent of the funding provided by Congress.

SUMMARY OF ARGUMENT

The principal question posited by the instant case is whether

the Administrator of the Environmental Protection Agency

has discretion to refuse to allot the full amounts author-

ized by the Water Pollution Control Act. The statutory

history and the overall structure of the statute demonstrate

that the allotment provision is mandatory. There is no state-

ment in legislative history stating that allotment is discre-

tionary, while one of the principal sponsors of the bill directly

stated that allotment is mandatory. Spending discretion

exists, but at the obligation phase rather than at allotment.

Additionally, the overall scheme of the statute demonstratés_

the desire of Congress to provide long range planning certainty

to achieve total restoration of the nation’s waters by 1985.

This purpose is best accomplished through a mandatory

allotment schedule coupled with some discretion in the

obligation phase. There is a substantial negative impact on

long range state planning when there is an exercise of discre-

tion at allotment as distinguished from exercise of discretion

at obligation. While the statute will operate well with manda-

tory allotment, insertion of discretionary allotment would

cause illogical results. Refusal to allot in full will cause perma-

net loss of funds for obligation.

At whatever stage of the funding process. refusal to allot

or expend fifty-five percent of the Water Pollution Control Act

funds would be an abuse of discretion. Congress intended to

provide funding for the solution of water pollution problems

which would be available to the states. Fifty-five percent

impoundment, substantially curtailing implementation of the

program, is beyond the discretion of the Administrator. Fur-

ther, justifications given as the basis for the refusal to allot were

improper reasons outside the realm of relevant considerations;

therefore. any exercise of discretion on this basis is improper.

ARR late

Siew.

Fee

Cle aR

‘ 4 . ; J

Actions by the Administrator were not only outside his

statutory authority but also beyond his constitutional

authority. Neither the ‘faithfully execute™” clause nor

“inherent authority’’ support executive action in refusing to

allot. Cases considering constitutional authority of the

executive branch have consistently held it to be limited

when impinging upon the intent of Congress. especially

in the domestic area. Further. the refusal to allot after a veto

of the Act had been overriden operated as an unconstitu-

tional absolute veto. .

Sovereign immunity is no bar to the suit against the

Administrator; first. because of the well established exception

of “officer suit’ and. second. because the Administrative

Procedure Act waives sovereign immunity. Similarly.

political question is no bar to justiciability in the instant case

since clear standards exist for judicial review and there is no

absolute Commitment to a coordinate branch of the absolute

power to spend or not to spend.

In sum, there is no bar to judicial review of the action of

the Administrator in refusing to allot. Further. these

actions were in contravention of the explicit provisions and

purposes of the Act and the Constitution.

ARGUMENT

THE PLAIN MEANING AND LEGISLATIVE HIS-

TORY OF THE ALLOTMENT PROVISIONS OF THE

WATER POLLUTION CONTROL ACT. TOGETHER

WITH THE OVERALL STRUCTURE OF THE ACT.

DEMONSTRATE THAT THE ADMINISTRATOR

HAS NO DISCRETION TO REFUSE TO ALLOT.

The issue in the instant case is the meaning of the allot-

ment phase of the Water Pollution Control Act = not the

academic issue of the mandatory or permissive nature of

appropriations generally.’ The precise question before the

Court is whether the allotment provision is mandatory

and requires the Administrator to allot the full sums

authorized by Congress. To determine whether an action

within the funding process is mandatory. it is imperative

‘to analyze not only that particular provision. but all relevant

'For discussion of the general issue. see Levinson & Mills. Jaipoind-

ment: A Search for Legal Principles, 26 U. FLA LL. Rev. I9D. 214 1974).

No generalization can be made about the mandatory nature of sarious phases

of the spending process. There must however be reference to the particular

budgetary provision with the otherrelevant provisions of the appropriations

act. In fact. President Nixon. in vetoing an HEW-OEFO appropriation.

recognized the possible effect of statutory danguage:

{Nearly nine tenths of these increases are for mandatory programs

which leave the executive branch no discretion whatever as to the level

or the purpose of the added expenditures.

- PUBLIC PAPERS OF THE PRESIDENT. State of the Union Address.

Jan. 27. 1970. at 22.

se bed Sti RY Cilla:

NL iis RAID ica AAR tte rpes

Bicent ise

SC Poe So PARNER RO Stet on STEER ort SE

poruions of the funding process of that statute.2, When. the

allotment phase is read as mandatory, the expenditure scheme

of the Act is logical and internally consistent. Further,

mandatory allotment best implements the goals of the Act.

In contrast.if the allotment provision is read as dis-

cretionary, the funding procedure becomes speculative and

the Act is effectively crippled.

This is not to say the Administrator has no discretion

in the implementation of the Act. In fact, discretion is

apparently accorded at the obligation phase. However, the

plain meaning and the history of the relewant provisions

Show that the allotment phase is mandatory.

A. THE HISTORY AND PLAIN MEANING OF THE

AUTHORIZATION AND ALLOTMENT PROVISIONS

(SECTION 205 AND SECTION 207) SHOW THAT AL=

LOTMENT IS MANDATORY.

The sums authorized to be appropriated must be fully

allotted as specified by Congress in sections 205 and 207:

§205--Sums authorized to be appropriated pursuant

to section 207... shall be allotted by the Administfator

not later than the January Ist immediately preceding

the beginning of the fiscal year for which authorized... .

§207--There is authorized to be appropriated to carry

out this title ...for the fiscal year ending June 30, 1973.

“In the instant case. it should be noted that the Act reverses the normal

budgetary procedure whereby sums are appropriated by Congress and later

obligated and expended by an executive agency (see Appendix). In the Act.

tunds are first authorized under section 205 to be appropriated later to carry

out the purposes of the Act. The Administrator is then required under

section 208 to a/lor the authorized contract authority among the states. Once

allotted, the sums become available to the states for obligation. The

\dnunistrator then reviews grant applications submitted by states and

mumeipalities to determine if they satisfy statutory and regulatory criteria.

If approved. a contractual obligation arises and. upon project completion.

an appropriation liquidates the obligation,

1c DO A AISA AEC MOL ELIOLEL LEAL NA LOGE LLP LL ALOLELALOL A ITE

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 year ending June 30, 1975, not to exceed

$7.000.000,000.

fe THE PLAIN MEANING OF THE ALLOTMENT

PROVISION REQUIRES ALLOTMENT OF THE

FULL SUMS LISTED IN SECTION 207.

Initially. it should be recognized that ‘shall allot’ is an

intrinsically mandatory phrase. See Boyden v. Comm'r of

Patents, 441 F.2d 1041, 1043 & n.3 (D.C. Cir.). cert. denied,

404 U.S. 842 (1971): Stanfield v. Swensor, 381 F.2d 755,

757 (8th Cir. 1967). It is therefore mandatory that, under

section 205 (a), the Administrator allot sums authorized to

be appropriated in section 207. The sums authorizedato be

appropriated in section 207 are five and six billion dollars.

No other sums are mentioned. The plain meaning of the

language, therefore, is that the Administrator must allot

the amount authorized to be appropriated.

Since sections 205 and 207 are plainly expressive of a

mandatory allotment, resort to legislative history is un-

necessary. Interpretation of the funding provisions of the

Act should remain within its four corners. giving due

weight to the plain meaning, internal logic and goals of the

Act's provisions. Use of extrinsic evidence must be predi-

cated upon a finding that a statute is ambiguous or that

its plain meaning leads to absurd or futile results. Church

of the Holy Trinity v. United States, 143 U.S. 457, 460 (1892).

The fact that. the Administrator claims that there is an

ambiguity is not conclusive. The Administrator offers legis-

lative history in support of its assertion that the construction

of the statute is doubtful. Extrinsic evidence, however, must

be used “to so/ve, but not to create an ambiguity.””

vie Jie

Pe Ee SIE ESN SR RE, oN

wa 6 CPI AED LE LENGE, PLLA GOAL LEI OL Lin BO I im PB RE IR ee

United States vy. Shreveport Grain & Elevator Co., 287

U.S. 77, 83 (1932); Hamilton v. Rathbone, 175 U.S. 414, 421

(1899). When considered by itself, the Act is clear in

declaring that the Administrator shall allot the amounts

specified.

It must also be recognized that the “‘not to exceed”

language in section 207 does not modify the clear meaning

of **shall allot’ as has been argued by the Administrator. See

Brief for Petitioner at 15. The Administrator argues that

**not to exceed"’ shows that the sums mentioned are only

ceilings which reflect an intent to allow obligation of

lesser amounts. However, section 205 is designed to

mandate allotment and to specify the date for allotment

while section 207, where the phrase ‘‘not to exceed”

appears, is designed to specify the year of availability and

the maximum sums authorized to be appropriated. Perhaps

there might be warrant for imposing “‘not to exceed”

on section 205 if there were no other explanation for its

existence in the Act. cf. Sturges v. Crowninshield, tr Uo.

(4 Wheat.) 122. 202 (1819), but there is another explanation.

The phrase operates as a limit on appropriations (a limit

on the Congress)* and a ceiling on the authority of the

Administrator to obligate funds. The phrase means ‘“‘no

more than.”’ Further, ‘“‘not to exceed"’ paces expenditure.

Section 207 utilizes **not to exceed”* three different times as a

ceiling on amounts which may be spent in each year so as

to pace expenditure of the total of 18 billion dollars. If in

fact Congress were actually attempting to utilize ‘*not to

exceed"* to be expressive of discretionary allotment it could

“In a discussion of an act with an “authorization to appropriation”

mechanism similar to that in the instant case, a district court stated that

authorization provisions appeared to be a limitation on Congress, rather

than on the Administrator. to prevent appropriation of more funds than

those authorized for a given program. Guadamuz v. Ash, 368 F. Supp.

1233. 1239-40 (D.D.C. 1973).

LR FREI IL IE CO Hi TAI DE AEP LEA LOD Bay NA RE HE Oe i BN

have done so explicitly. The clause could have read

‘‘authorized to be allotted and appropriated not to

exceed... .7"! ‘

When considered in and of itself, the Act is.clear in de-

claring that the Administrator shall allot the amounts

specified. There is no need to resort to legislative history

although that history also supports the mandatory nature of

allotment.

2. THE LEGISLATIVE HISTORY OF SECTIONS

205 AND 207 SUPPORTS THE CONCLUSION

THAT WHILE THERE IS DISCRETION

WITHIN THE ACT TO CONTROL OBLIGATIONS,

THERE IS NO DISCRETION AT THE ALLOT-

MENT PHASE.

The focus of the statutory controversy in the instant case

is the interpretation of the inclusion or omission of three

words and phrases within sections 205 and 207 during the

enactment of the Water Pollution Control Act:

(1) deletion of ‘‘all’’ in section 205. (a) by the conference

committee:

[All] sums authorized to be appropriated pursuant to

section 207 for each fiscal year beginning after June

30, 1972, shall be allotted by the Administrator... .

(2) addition of **not to exceed’* before the sums specified

in section 207:

There is authorized to be appropriated to carry out this

title. other than §§208 and 209, for the fiscal year end-

ing June 30. 1973, [not to exceed] $5,000.000.000.

<The statute was evidentiy drawn with care. Its language is plain and

unambiguous. What the Government asks is not a construction of a statute.

but. in effect. an enlargement of it by the court. so that what was omitted.

presumably by inadvertence. may be included within its scope. To supply

omissions transcends the judicial function.” Iselin v. United States, 270

U.S. 245, 250-51 (1925). |

tA EIR RE BET a

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for the fiscal year ending June 30, 1973, [not to exceed]

ooo os he vis oc oe eh os 0s ek ba oe

(3) the words ‘‘shall be allotted’* in section 205.

The deletion of ‘‘all’’ in conference is asserted to be an

indication that Congress intended to allow discretion in the

allotment phase. However, nowhere in the conference

report or any legislative history is there a direct statement

to that effect. The Administrator relies strongly on a statement

by Representative Harsha:

I want to point out that the elimination of the word

‘tall’ before the word ‘‘sums’’ in section 205 (a) and

insertion of the phrase ‘‘not to exceed in section

207 was intended ...to emphasize the President's flex-

ibility to control the rate of spending.

118 CONG. REC. H9122 (daily ed. Oct. 4, 1972) (emphasis

added). The key to understanding the statement, however,

comes when Representative Harsha further explicates:

Second, I would like to point out that the Admin-

istrator of the Environmental Protection Agency must

approve plans, specifications, and estimates. This is

the pacing item in the expenditures [sic] of funds.

Id. (emphasis added).

The screening procedure and project approval which

Representative Harsha has identified as the pacing item to

control the rate of expenditures is the obligation phase.

Representative Harsha clearly specifies that it is this phase

(obligation) of the funding process where he finds the dis-

cretion to control the rate of spending. Moreover, Congress-

man Harsha continues: “‘It is clearly the understanding of

the managers that under these circumstances [the application

59S tea SII le Ti DELILE AD Lb ES AT ETO PTE IAS ACIS LIES

review procedure] the Executive can control the rate of

expenditures.”’ Id. (emphasis added). The comments of Rep-

resentative Harsha make clear that the statement primarily

cited as making allotment discretionary actually refers to

“obligation.” Nowhere in these comments is there reference

to “'flexibility’* in allotment or to allotment as a“ pacing item.”

Further, because of the different phases in the Act, control

over allotment does not so much affect the rate of spending as

it does the amount of spending,’ further indicating that the ref-

erence to discretion relates to obligation.

A colloquy between former Representative Ford and

Representative Harsha further supports the interpretation

that discretion was granted only at the obligation phase:

As I understand the comments of [Representative

Harsha], the inclusion of the words in section 207 in

three instances of *‘not to exceed” indicates that it is a

limitation. More importantly that it is not a mandatory

requirement that in | year ending June 30, 1973.

there would be $5 billion and the next year ending

June 30, 1974, $6 billion and a third year ending

June 30, 1975, $7 billion obligation or expenditure?

Id. at H9123 (emphasis added). Representative Harsha

responded:

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 sum -- anything up to

that sum but not to exceed that amount.

Id. (emphasis added).

* Allotment relates only to the amount a state may obligate. Obligation

may occur at various times during the year after administrative review of

applications, thereby pacing the rate of expenditure. See p.28.29.32 infra.

el RR Oa

It is clear that, if what Representative Harsha says is

accurate, namely that anything up to the maximum sum can

be obligated or expended, then discretion at the allotment

phase is virtually impossible. That is, if the Administrator

exercises any discretionary reduction at the allotment phase.

then what Representative Harsha proclaims as possible

becomes impossible.®

The legislative history is totally devoid of any statement

that discretion exists at the allotment phase’ to withhold

funds. In fact. as explained above, the statements advanced

by the Administrator as indicating a discretionary allotment

do not even refer to the allotment phase. Instead, the

legislative history is replete with direct statements referring to

discretion at the obligation phase. This pattern of legislative

history, tending to place discretion at obligation rather than

allotment, is further strengthened by a categorical state-

ment in the legislative history by a principal sponsor of

the bill which directly applied to sections 205 and 207 and

explains their effect:

Under the amendments proposed by Congressman

William ‘Harsha and others, the authorizations for

ovbligational authority are “‘not to exceed’’ $18 billion

over the next 3 years. Also, “‘all’’ sums authorized to be

obligated need not be committed, though they must he

allocated.{"]These two provisions were submitted to give

the administration some flexibility concerning the

obligation of construction grant funds.

"Allotment necessarily precedes obligation. If allotment is discretion-

ary. then the Administrator cannot possibly obligate up to the maximum

sum, unless he exercises his discretion to aliot the fuli amount. if alloimeni

is mandatory. then Congressman Harsha’s statement is correct and the

Administrator can obligate up to the full amount. There is ample history

supportive of making full amounts available for obligation. See footnote 15,

and accompanying text infra.

*The Senate bill had used the term “‘allocate’’ rather than allotment.

H.R. REP. No. 1465, 92d Cong.. 2d Sess. 113 (1972). See New York v.

Train, 494 F.2d 1033. 1043 1.19 (D.C. Cir. 1

118 CONG. REC. S18546 (daily ed. Oct. 17, 1972) (remarks

of Senator Muskie) (emphasis added). This statement by

Senator Muskie, Senate sponsor of the Act. in no way con-

flicts with the statements of Representatives Harsha and

Ford. The statement does, however. provide a critical clari-

fication. Rather that merely alluding to where discretion ts

vested-Senator Muskie clearly states when discretion is

not vested.

The deletion of the word ‘‘all*’ from section 205 has been

given undue weight. The provision has essentially the same

meaning with or without “‘all..” Moreover, this Court has

stated that statutes must be interpreted on ‘‘the basis of

what Congress has written, not what Congress might have

written.”” United States v. Great N. Ry. Co., 343 U.S. 562.

575 (1952). The act of deleting the word *‘all”” should be accord-

ed no particular significance if the meaning of the provision

is not affected by the omission. ** All sums”’ is equal to **sums*”

albeit less emphatic.*

“It is a general principle of English grammar that when there is the

absence of a qualifying adjective. the noun is considered a totality. See

P. ROBERTS. MODERN GRAMMAR 29 (1968). An illustration of the signifi-

~ cance that Congress apparently gives to the term “all” is found in the legis-

lative history of the old Senate Bill. Section 205 of that bill read.‘ all alloca-

tions to the states under Section 205 are to be made on the basis of popula-

tion’ (emphasis added). The commentary by the committee explaining this

section reads as follows: ** This section provides that sums appropriated or

authorized to be obligated for the construction of treatment works under

Tithe 11, will be allocated among the states on the basis of population alone”

emphasis added). Library of Congress. 4 Leeislanve History of the Water

Pollution Control Act Amendments of 1972 at 1448 (1973). The significance

of this passage is the absence of ‘‘all”” before “sums” in the commentary.

indicating a tendency in Congress not to use an adjective in this context, and

probably for no particular reason -- whether that adjective be “some.” “all”

or the.”

DATE SERIE BEES PA:

SPS ont,

valine 4a ea ace FNS:

Despite the legislative history cited above, a district

court, in dicta, has concluded that the allotment phase was

discretionary. Brown v. Ruckelshaus, 364 F. Supp. 258,

268 (C.D. Cal. 1973). But to reach this conclusion the

court examined legislative history referring only to dis-

cretion at the obligation phase--a proposition not even at

issue. While legislative history supports the Administrator’ s

position in Brown that not every penny must be spent in

any given year, the history does not support the conclusion

that allotment is discretionary.

Another district court found discretion based on the act

of deletion--what the court termed “‘syntactical history.”

Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp.

689, 698-99 (E.D. Va.). remanded with directions sab nom.

Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir.

1973). In the presence of what the court felt to be an unclear

legislative history subjecting the Act to two interpretations.

this “syntactical history” was found to be persuasive. How-

ever. no substantiation was offered as to what the “*syntactical

history” of the deletion was, only ex a...

If legislative history ts unclear, “syntactic: story’ is non-

existent. Nevertheless, Judge Merhige declares this deletion to

be the principal source for concluding that Congress intended

the Administrator te exercise some discretion with respect

to allotments. The weight of opinion is, however. in disagree-

ment with Judge Merhige’s conclusion.” The mere removal of

a word is subject to many interpretations and is of itself not

sufficient to support a major deviation from the plain meaning

and legislative history of a statute.

“New York v. Train, 494 F.2d 1033 (D.C. Cir. 1974): Texas v. Fri.

No. A-73-C A-38(W.D. Tex.. Oct. 2. 1973): Martin-Trigona v. Ruckelshaus,

No. 72-30440N.D. HL. June 29, 1973): Minnesota v. USEPA, No. 4-73 Civ.

133.(D. Minn.. June 25. 1973). appeal argued, Civ. No. 73-1446, 8th Cir..

Feb. 13. 1974. But sec Brown v. Ruckelshaus. 364 F. Supp. 258 0C.D. Cal.

1973) (dicta).

be Ning Cn ERA Na te aneedeatintal

In sum, a combination of circumstances indicates the

mandatory nature of allotment. First, no legislator directly

refers to allotments as discretionary. Those who supported

discretion in allotment, if there were any, did not express

their opinion;'® and were unable to pass any language

explicitly discretionary. Third, one of the principal sponsors.

Senator Muskie made a direct statement that the deletion of

‘all’ did not affect the mandatory allotment provision.

Fourth, the plain meaning and statutory history support

mandatory allotment and discretionary obligation. The

total impact of these circumstances clearly shows allotment

to be mandatory. Both the legislative history. which clearly

supports the mandatory nature of allotment. and the plain

meaning of the words of the allotment provision admit of no

reasonable interpretation other than a mandatory allotment

provision.

3. STATEMENTS ° IN- LEGISLATIVE HISTORY

REFERRING TO AUTHORITY TO “IMPOUND”

CONFER NO AUTHORITY TO REDUCE ALLOT-

MENTS.

The Administrator contends that certain excerpts from

the legislative history indicate that the power to impound

authorized funds was conferrred upon the Executive. Brief

for Petitioner at 14 et seg. The contention is unsupported.

first because these cited statements refer to discretion only

at the post-allotment phase (obligation) and, second.

because any reference to Office of Management and Budget’s

authority to impound is inapplicable in the instant case.

The: Administrator contends that the quoted language

confers a general power to impound independent of the Act.

Brief for Petitioner at 10, 44. The primary thrust of this

argument depends upon Representative Harsha’s statement

"The silence of sponsors of amendments is pregnant with signifi-

cance.” NLRB v. Fruit & Veg. Packers. Local 760, 377 U.S. 58. 66 (1964).

lo |

comparing impoundment under the Highway Trust Fund

with impoundment under the Act. Brief for Petitioner at 17.

Congressman Harsha stated: :

Surely, if the administration can impound monies from

the highway trust fund which does not have the flex-

ibility of the language of the water pollution control bill,

it can just as rightly control expenditures from the

contract authority produced in this legislation by that

same means.

118 CONG. REC. H9122 (daily ed. Oct. 4, 1972). Although

the statement indicates a conferring of control over spending

power, the only power exercised by the Executive in the

Highway Trust Fund to which Representative Harsha refers

occurs at the obligation phase with “contract controls.”’

See State Highway Comm'n v. Volpe, 479 F.2d 1099,

1103-04 (8th Cir. 1973). In fact. the Executive and the

Eighth Circuit have recognized that the Highway Trust

Fund's ‘allotment’ process is ministerial. See p.29-30 infra.

The Administrator also infers a general power to impound

from other statements referring to the Office of Management

and Budget.'' Even if the OMB has adequate impoundment

power under the Anti-Deficiency Act. the OMB has failed

to utilize any option which might exist. In OMB’s report

of February 19, 1974, pursuant to the Federal Impoundment

and Information Act, 31 U.S.C.A. §58lc-1 (Supp. 1974). it

omitted the withheld allotments from its list of

impoundments. 39 Fed. Reg. 7707. 7708 (1974). Since

none of the present withholding was accomplished through

"Senator Nelson stated:

Only if the President's Office of Management and Budget Sor the

Congress specifically directed otherwise would the money not be

available at the levels in the legislation. according to my under-

standing. ‘

118 CONG. REC. SI6888 (daily ed. Oct. 4. 1972).

EIRP PORN E078 eet a Ry bs

17 '

any OMB authority, the Administrator may. not rely upon

powers vested in the President through the OMB. Con-

sequently, any references to OMB “‘impoundment’’ are

inapplicable since that power, whether or not it exists, has

not been exercised. aes

Further, even if.the OMB had utilized its power to reserve

under the Anti-Deficiency Act. 31 U.S.C. §665.(c) (1970).

that action would have exceeded their authority. Reserves

_ cannot-contravene-the-intent-of the-Congress: tia report to

the Senate Appropriations Committee recommending

reserves, the Bureau of the Budget and the Comptroller

General stated that there was a need ‘“‘for machinery to

conserve appropriations which are in excess of actual

requirements.""'® This empnasizes that the purpose was not

to allow the reserving of required funds.

In another report, prepared by the House Appropriations

Committee to accompany the 1950 amendments to the Anti-

Deficiency Act, the following discussion stemmed from

consideration of President Truman's impoundment of Air

Force funds:'* 7

It is perfectly justifiable and. proper fof all possible

economies to be effected and savings to be made, but

there is no warrant or justification for the thwarting of a

major policy of Congress by the impounding of funds.

Even more persuasive is the Bureau of the Budget Examiner's

Handbook written in 1952, shortly after the 1950

. oe .

amendments to the Anti-Deficiency Act, which stated:

"Quoted in Joint Hearings on §.273 > Before the Ad Hox

Sibcomm. on Impoundment of Funds of the Senate Comm. on Government

Operations and the Subcomm. on Separation of Powers of the Senate

Comm. on the Judiciary, 934 Cong., Ist Sess. 107 (1973) (emphasis added).

"H.R. Rep. No. 1797, Bist Cong.. 2d Sess. 311 (1951).

a es — —

oS eas AS a a AN late BEEPS Bow

ita cae eel Saale se, ee

Soe

‘Reserves must not be used to nullify the intent of Congress

with respect to specific projects or level of programs.”*'!

The decision of the Eighth Circuit in State Highway

Comm'n v. Volpe, 479 F.2d 1099, 1118 (1973). reaffirmed

these interpretations and considered the Anti- Deficiency Act

as no justification for ** violating the purposes and objectives

of the particular appropriation statute.”

A withholding of the magnitude EOE by the

Administrator in the instant case, if done by reserving.

would be an encroachment on congressional intent and

would be outside the purview of the Anti-Deficiency Act.

However, as previously stated. this question is not directly

before the Court since the refusal to allot was by the

Administrator and not the OMB. Consequently. all

references to legislative history which are argued as granting

impoundment authority regarding allotment either refer to

another phase of the Act (obligation) or to unexercised

OMB reserve authority.

B. EXPRESS GOALS AND OVERALL FUNDING

STRUCTURE OF THE ACT DEMONSTRATE THAT

ALLOTMENT OF AUTHORIZED SUMS IS MANDA-

TORY.

[The Act] has received more thorough consideration and

has engendered more productive discussion than any

other in which I have participated oe my service in

the Senate.

118 CONG. REC. S16881 (daily ed. Oct. 4, 1972) (remarks of

Senator Cooper). Since a determination of the manditoriness of

TG, S. BUREAU OF THE BUDGET. EXAMINER'S HANDBOOK (1952)

(quoted by J.Williams. The Impounding of Funds by thé, Bureau of the

Budget (19SS) cited in Joint Hearings on §.373 Before the Ad Hoc Sub-

comm, on Impoundment of Funds of the Senate Comm. on Government

Operations and the Subcomm, on Separation of Powers of the Senate

Comm, on the Judiciary, 93d Cong., Ist Sess. 844, 859 (1973).

fad

‘

allotment affects the entire Act. it is necessary to examine

allotment in the context of the other relevant provisions of

the Act. The Act, as Senator Cooper points out above. was

carefully consgructed. However. if allotment is considered

discretionary. this well-planned Act reaches illogical regults

Congressional enactments “‘should never be construed as

establishing statutory schemes which are illogical. unjust or

capricious.”” Lee Fook Chueyv v. Immigration & Naturali-

cation Seryv., 439 F.2d 244. 249 (9th Cir, 1970),

The logic and goals of the entire Act are essential in inter-

preting the allotment provision. As the Court observed

in Richards v, United States, 309 U.S. 1, 1 (1962):

We believe it fundamental that a section of a statue should

not be read in isolation from the context of the whole Acts

and ‘that in fulfilling our responsibility in interpreting

legislation. *‘we must not be guided by 4 single sentence

or member of a sentence. but [should] look to the provi:

sions of the whole law. and to its object and policy. oot

notes omitted).

Statutory senounidsend the legislative history ef the Act

cannot exist independently of in a Vacuum.

“We are not only dealing with the language of the statute.

but we must look as well to the logic of Congress and the

~~ broad national policy which was evidenced by ity enuct-

ment. . ;

Miller v. Amusement, Enterprises. Inc.. 394 F.2d 342. 353

(Sth Cir. 1968). te es

The Eighth Circuit. reaffirmed this principle in Stare High-

way Comm'n v. Volpe, citing Richards and Lord Campbell's.

statement of over a century ago that: |

{ijt is the duty of the Courts of Justice to try to get

at the real intention of the Legislature by carefully attend.

ing to the whole scope of the statute to be construed.

Liverpool Borough Bank v. Turner, 45 Eng. Repr. 718. 718

PDE ERA BTR ress 0 By WIE Rene SS a AR ON eye DP I UNRATE REE le Se

»)

(1860). aff'd 70 Eng. Repr. 703. as quoted in 479 F.2d 1099,

1112 (8th Cir. 1973) (the court's emphasis).

Thus, an examination of the goals of the Act as well as its

other provisions and internal logic is necessary in construing

the allotment provision. :

1 = =GOALSOF THE ACTEXPRESS A NATIONAL COMMIT

MENT OF FUNDS TO RESTORE THE WATERS OF THE

UNITED STATES.

Sec. LOL (a). The objective of this Act is to restore and

maintain the chemical, physical, and biological integrity

of the Nation's waters. In order to achieve this objective.

itis hereby declared that, consistent with the provisions

of this Act -- (1) [tis the national goal that the discharge

Sec. 201 (a). Itis the purpose of this title to reguire and to

assist the development and implementation of waste treat-

ment management plans and practices which will achieve

the goals of this Act. (emphasis added).

In the debate prior to the override of the Veto, Senator

Muskie stressed that ‘‘{t]he whole intent of this bill is to make a

national commitment” of funds to solve our problems in water

pollution. 118 CONG. REC. S18547 (daily ed. Oct. 17. 1972).

Congressman Harsha in the House debate on the Conference

Report noted that “‘[t}he objective of this legislation is to

restore and preserve for the future the integrity of our Nation's

waters. LIS CONG. REC. H9117 (daily ed. Oct. 4. 1972). In his

1970 State of the Union message, President Nixon recognized

the immediate necessity of the national commitment “to put

modern municipal waste treatment plants in every place in

America where they are needed to make our waters clean

again..." 116 CONG. REC. 740 (1970). Although the Act is

not the program proposed by the President. the goals of his

program were the same as those of the Act, except for the

‘a

“«

CSF LAE OIE I AL Nt TARE ARGLE Oe 0p BN TEE Te te > £ aetade

amount and methods of funding. In his veto message. the Presi-

dent stressed, **My proposed legislation, as reflected in my

budget. provided sufficient funds to fulfill that same in-

tent....° 118 CONG. REC. $18534 (daily.ed. Oct. 17, 1972)

(emphasis added).

Congress overrode that veto to implement the well-recog-

nized and undisputed goals of the Act. Moreover. if the

Administrator's action is upheld in the instant case. the effect

would be to legitimize, or constructively “‘legislate,”’ the fund-

ing levels suggested by the President in his bill. These lower

levels were explicitly rejected by Congress upon its adoption of

the Act and its subsequent override of the President's veto.

It was clear that Congress wanted to compel the higher level of

funding.'*

There were other indications that Congress wanted to make

the full amount available to the states. Early in the considera-

tion of the Act, congressional proponents advocated avoiding

the normal method of funding which requires approval by the

appropriations committees.!® The argument advanced was

that funding levels had been continually reduced by the

'* [T Jhe confereees are convinced that the level of investment that is

authorized is the minimum dese of medicine that will solve the problems we

face.” 118 CONG. REC. S16871 (daily ed. October 4,°1972) (remarks of

Senator Muskie) (emphasis added). ** Contract authority is provided for up to

$5 billion in 1973. $6 billion in 1974, and $7 billion in 1975. This will be

allocated to the States on the basis of the Environmental Protection

Agency's annual assessment of needs established without regard to budeet-

ary loaitations and other nonwater quality factors.” Id. at S16881 (remarks

of Senator Cooper) (emphasis added). ** The conferees spent hours and days

studying the problem of financing the cleanup effort required by this new

legislation, and specifically studying how much money would be necessary to

achieve the objective and goals of the act, as set forth in section 101 (a)... 2°

118 CONG. REC. $18548 (daily ed. October 17, 1972) (remarks of Senator

Muskie).

See n.2 supra. and p. 23-24 infra.

9 PERE ae T Ros +e ATOR UND 2, 2 TEARS LRA ITE by

appropriations committees below the authorized level -- a

common occurrence.'’ Thus, contract authority was utilized

to insure that full amounts authorized would be made available

for obligation,'* a purpose which would be frustrated by per-

missive allotments.

Provisions of a statute should not be interpreted to frustrate

the goals of Congress regarding funding levels. As expressed

by the lower court in the instant case:

We find that it was Congress’ intention that the full

$18 billion be spent to control water pollution... . [T]he

legislative history ...manifests an intent to create a pro-

cedure which would insure that the total authorized funds

would be made available to states. It is this goal which

must guide us in interpreting the funding mechanism, for

if discretion in allotment would make the achievement of

this goal more difficult, it must be assumed that Congress

intended no such authorization.

New York v. Train, 494 F.2d 1033, 1042 (D.C. Cir. 1974). The

Act clearly contemplates full expenditure of funds to imple-

ment the goal of cleaning the nation’s waters.'®

'? Under normal budgetary procedures, appropriations are often made at

a level lower thaa authorizations. See ADVISORY COMM'N ON

INTERGOVERNMENTAL RELATIONS, THE GAP BETWEEN FEDERAL AID

AUTHORIZATIONS AND APPROPRIATIONS, FISCAL YEARS 1966-1970

(1970).

'**(L Jet us put up the Federal share in a way, with language and an

understanding, that makes it clear we are not backing off.”’ 117 CONG. REC.

S$17446 (daily ed. Nov. 2, 1971) (remarks of Senator Muskie).

'"If the Administrator's argument were to be accepted, he could con-

ceivably ‘control’ allotment to $0; it is worth cons’ tering the fate of this

program at the Administrator's present rate of alloti#@nt. Senator Muskie

estimated that even with full allotment, it would take seven years to expend

the $18 billion. 118 CONG. REC. S$18547 (daily ed. Oct. 17, 1972). At the

Administrator's present 45% rate of allotment, the optimum time for

expenditure of the full $18 billion is approximately 15 years.

Ra ER RAE wat BOL RRO, POAC aT Paik mall HL a RE

2. PERMISSIVE OR MULTIPLE ALLOTMENTS

WOULD FRUSTRATE THE INTENT OF THE ACT TO

ENCOURAGE LONG RANGE PLANNING.

The Administrator asserts authority to allot funds for any

given year at any time and that “‘there is no practical

difference ir: result between exercising such control at the allot-

ment or at the obligation stage.”’ Brief for Petitioner at 23.

Neither the contention for multiple allotments nor the asser-

tion that there is no practical difference is supportable.

Nowhere in the Act is there provision for multiple allot-

ments or disposition of funds authorized but not allotted. On

the other hand, section 205 (b) (1) of the Act deals extensively

’ with the reallotment of funds allotted but not obligated. The

inference is that incomplete obligation was anticipated by

Congress, but incomplete allotment was not.

The Administrator has adopted the position that funds not

allotted will be available for’ obligation indefinitely. Brief for

Petitioner at 25 er seg. However, there is no support for such

a contention in the Act, and the idea that the Administrator

may absolutely control release of unallotted funds forever by

multiple allotments is plainly unreasonable.

One of the primary problems with the Federal Water Pollu-

tion Control Act of 1956 was that its yearly appropriation

scheme caused uncertainty because of its failure to give notice

to the states of future federal commitments. The appropriation

method was deemed neither practical nor economical. 117

CONG. REC. $17445-52 (daily ed. Nov. 2. 1971).

LEASED RE ~

Barn DES ial RS SEALED DIOCESE EEO am 0s HR

o®

Contract authority.?" the new method incorporated in sec-

tion 203 of the Water Pollution Control Act Amendments of

1972. was designed to allow flexibility in the planning stage

and give long range assurances to the states and local agencies

that the funds were available in the amount specified vy

1 See Representative Harsha stressed that:

It is essential that the States, the interstate agencies and

the cities have both the ability for and a basis for long-

range planning. construction scheduling and financing

Waste treatment plants ....

118 CONG. REC. H2727 (daily ed. March 29, 1972); see 117

CONG. REC. S17451 (daily ed. Nov. 2. 1971) (remarks of

Senator Muskie). The District of Columbia Circuit Court stated

simply. “*[t]he Act was passed to insure that ultimate grantees

could rely in advance on the amounts available.”” New Yor v.

Train, 494 F.2d at 1036-37. In Texas v. Fri, No. A-73-CA-38,

Slip Op. at 5 (W.D. Tex.. Oct. 2. 1973), the district court

saw the same issue to be one of logic:

The feeling was that without unequivocal federal financial

commitment state and local governments would have

difficulty entering into long term contracts and financing

long term bonds. /t is illogical to think that Congress

- would inject the same uncertainty back into the system it

had sought to avoid with the allotment procedure by giv-

ing the Administrator discretion to choose the amount to

be made available to the state and local governments.

(emphasis added).

"With a “contract authority’ Method of funding. Congress authorizes

an amount to be committed by the Administrator according to conditions and

limitations specified by law. The actual appropriation of funds by Congress ts

pro forma and takes place after obligation of funds by the Administrator. Sc«

117 CONG. REC. S17445-S2 (daily ed. Nov. 2. 1971). GU. S. OFFICE OF

MANAGEMENT & BUDGET. CIRCULAR NO. A-34. INSTRUCTIONS ON

BUDGET EXECUTION §21.1, at 6 (1971).

So i A i IRAE I BI EN I RINE RL A CEST EE Oo el IR Ca Sind a ee eX

Exercise of discretion at the allotment phase clearly pre-

cludes effective long range planning by states and localities --

a primary goal of the Act. Exercise at the obligation phase

would not hinder planning but would control the rate of

expenditure to qualified applicants. Consequently. the

Administrator’ s contention that there is no practical difference

in exercise of discretion at obligation or allotment is fallacious.

Exercise of discretion through multiple allotment frustrates

one of the primary goals of the Act -- long range planning

by states.

Moreover, the Administrator argues for discretion at both

the allotment and obligation phases. Brief for Petitioner at 23.

This would result in almost total uncertainty about the level of

funding. and render long range planning impossible.

3. THE INTERNAL LOGIC OF THE ACT READ WITH

THE REALLOTMENT PROVISION, SECTION 205 (b),

INDICATES ALLOTMENT TO BE MANDATORY.

Under section 205 (b), budget authority allotted but unobli-

gated after an initial thirty-month period is redistributed by re-

allotments to the states and continues to be available for obliga-

tion. Reallotment of unobligated funds thus permits a constant

level of funding to continue to be available to the states in order

to facilitate the accomplishment of the goals of the Act. If un-

allotted, however, the funds are never available for reallot-

ment or obligation and therefore are permanently lost to the

states.*! See New York v. Train, 494 F.2d at 1049.

~~ 21 The Act requires the Administrator to make allotments by a fixed date

under section 205 (a). Once properly allotted, section 205 (b) (1) requires:

Any sums allotted to a State .. .shall be available for obligation. . .in

such State fora period of one year after the close of the fiscal year for

which such sums are authorized.

Thus, since subsection (b) (1) is the exclusive provision for obligational

availability and since it specifies a definite obligational period. see 31 U.S.C.

§701 (b). any amounts unallotted by the statutory date are never available for

obligation and consequently lapse. See ay U.S.C. §701 (a) (2). Further, these

same unallotted sums can not be realjotted since only those amounts allotted

by the statutory date may be reallotted tinder section 208 (b) (ii.

ieee ack AE OO APA ICIE IE BE BI AEE TI eT ach BIRO

hb Soa Pua ‘

The reallotment procedure, read together with a mandatory

allotment provision, supports the policy of the Act to encour-

age planning. It is well established that separate provisions of

a single act should be interpreted so as to reach the ** ‘most

harmonious, comprehensive meaning possible’ in light of

the legislative policy and purpose.”” Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609, 631-32 (1973). Find-

ing allotment permissive would clearly frustrate the overall

purpose of the Act.

4. SECTION 206 (f) (1). WHICH PROVIDES FOR AD-

VANCE OBLIGATION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS MEANINGLESS UN-

LESS ALLOTMENT IS MANDATORY.

Section 206 (f) (1) allows the Administrator to obligate

funds in advance for a state’s particular project. even if the

funds allotted for that fiscal year have been fully obligated.

This is possible only if the authorization for the subsequent

fiscal year will ensure payment of the obligation incurred.

If a state may not be sure of the level of future allotments. as

would be the situation with permissive allotment, this provi-

sion Is Meaningless.

The proposition is well established that a statute must be

construed. if at all possible, to give effect to all its pro-

visions. United States v. Menasche, 348 U.S. 528, 538-539

(1955). As the D.C. Circuit has observed:

Section 206 (f) (1) would have scant operative effect if

the “state's expected allotment” could not be known

because the Administrator had discretion to allot only a

portion of such authorization. This is further evidence of

a legislative purpose to make allotment mandatory.

New York v. Train, 494 F.2d at 1049-50.

ene

OR ete Bis Cia rote 222

Mandatory allotment allows the Administrator to use his

discretion as to individual projects and to exercise control over

the obligation and rate of expenditure of funds without jeop-

ardizing the level of funding available. The reallotment pro-

Vision was provided by Congress to allow the Administrator

to use discretion at the vbligation phase without raising the

danger that states would have insufficient time to obligate

deferred projects. Cf. State Highway Comm'n v. Volpe, 479

F.2d 1099, 1114-15 (1973).

The Administrator argues that funds currently unallotied

will not be lost to the states because section 205 is not a once-

a-year action. Section 205 states:

the allotment for fiscal year 1973 shall be made not later

than .... (emphasis added).

This provision obviously contemplates only an annual allot-

ment. A system allowing more than one allotment would wreak

havoc with state planning. States must plan to accomplish

the maximum within the amounts allotted. The January allot-

ment for a fiscal year and the carryover to the next fiscal year

gives the states time to plan how best to attain their goals.

These proposed mid-way allotments do not give the states

adequate notice or time to plan the efficient use of funds. In

many cases, it would be impossible for a state to expand a pro-

gram after it is started. Plans or specifications would have to be

redrawn, and the program would have to be resubmitted to

the Administrator. If approved, bids would have to be relet.

This system is not only inefficient but clearly contrary to the

intent of Congress.

The District of Columbia Circuit Court reached the same

conclusion and observed. “the Act nowhere mentions any

type of later augmentation procedure” for additional allot-

ments. New York v. Train, 494 F.2d at 1049. Therefore. the

loss of funds resulting from the reallotment procedure when

allotment is read to be permissive cannot be cured by

secondary allotments not permitted by the Act.

‘aA

THE OBLIGATION PROVISION AS WRITTEN INDI-

CATES THAT THE OBLIGATIONAL PHASE RATHER

THAN THE ALLOTMENT PHASE IS DISCRE-

TIONARY.

Section 203 sets the general scheme for contract authority

and requires applicants to submit plans and specifications after

wlotment. Approval is based upon satisfying the grant condi-

tions specified in section 204. Only if discretion is present at

the obligation phase rather than at the allotment phase

can the Administrator intelligently exercise his discretion.

At this point. after allotment and the submission of plans,

the Administrator has at his disposal the information necessary

to evaluate specific projects and the needs of states -- informa-

tion not available at the allotment phase. Therefore, the

Administrator can better decide upon reductions or delays

which least damage the goals of the Act.

Discretionary allotment would hamper effective operation

of the obligation phase by precluding the exercise of informed

discretion. Ifa statute is susceptible to either of two opposed

interpretations (in the instant case either mandatory or dis-

cretionary allotments): the statute must be read **in the manner

which effectuates rather than frustrates the major purpose of

the legislative draftsmen.”” Shapiro v. United States, 335

U.S.1.31(1948). Consequently, the allotment provision should

be read as mandatory to promote the purpose of advance plan-

ning and informed exercise of discretion.

C. ALLOTMENT IS A BUDGETARY MECHANISM

WHICH IS BOTH GENERALLY MANDATORY AND

SPECIFICALLY MANDATORY IN THE CONTEXT

OF THE ACT.

Petitioner's argument that allotment is discretionary fails to

take cognizance of the characteristics of allotment as a budget-

ary tool. Allotment in the Act is a technical process in the

implementation of contract authority. The amount each state

is allotted is determined by 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 all

needed publicly owned treatment works in all of the States.”

Section 205 of Pub. L. No. 92-500, 86 Stat. 816. See also Shinn,

The Federal Grant Program to Aid Construction of Municipal

Sewage Treatment Plants: A Survey of the 1972 FWPCA

Amendments, 48 TUL. L. REV. 85, 88 (1973). The Adminis-

trator then determines, through the obligation phase. the

extent of the actual needs of the states. Allotment provides

a ceiling within which the Administrator may exercise inform-

ed discretion by evaluating proposals from the states.

. Allotment has been found ministerial in other spending

enactments. In Udall v. Wisconsin, an action involving alloca-

tion of wildlife restoration funds to states, the court found the

Secretary of the Interior was “given no discretion in the

initial apportionment.”* 306 F.2d 790, 793 (D.C. Cir. 1962).

cert. denied, 371 U.S. 969 (1963). Apportionment in Udall is the

same as allotment in the instant case. The Udall court also.

recognized that there was discretion later in the funding

process: “‘approval or disapproval of a conservation project

submitted by a state. . .involves an administrative judgement

.. 306 F.2d at 793 n.15.The same discretionary role is play-

ed by obligation in the instant case. + cee

Also indicative of the nature of allotment in the instant case

is the practice of ““apportionment™ in the Federal- Aid High-

way Act. 23 U.S.C. §§ 101 et seq. (1970). The Conference

Report accompanying the Water Pollution Control Act specifi-_

cally refers questions on the interpretation of the mechanics of

contract authority funding to the Federal- Aid Highway Act.

H.R. REP. No. 1465. 92d Cong.. 2d Sess. 1111972). Further.

the. Administrator, in his brief. recognized congressional

references to the procedures of the Highway Act. Within

the meaning of the Highway Act. apportionment is a ministe-

rial function -- the Secretary of Transportation has no discre-

tion. “‘Apportionment’’ by the Secretary among the states

according to a set formula is exactly the same as allotment.

As the Eighth Circuit Court of Appeals observed:

[T]he Secretary is required to apportion among the

several states certain sums authorized to be appropriated’

for expenditure.

State Highway Comm'n v. Volpe, 479 F.2d 1099, 1107

(8th Cir. 1973). As authority for the above statement, the

Eighth Circuit cited former Federal Highway Administrator

F. C. Turner, who observed that: :

‘There is absolutely no discretion of any kind in our office

with respect to how much any State gets in any of these

categories of funds [pursuant to the formula]. The appor-.

tionment is specified in the law and we distribute it right to

the dollar.

Hearings on Executive Impoundment of Appropriated Funds

Before the Subcom. on Separation of Powers of the Senate

Comm. on the Judiciary, 92d Cong., Ist Sess. 80 (1971), as

quoted in State Highway Comm'n v. Volpe, 479 F.2d at

1107 n.8eThe District of Columbia Circuit Court directly con-

curred in the conclusion of the Volpe court that ‘‘allotment”

under the Highway Act is mandatory.

**[]]mpoundment”™ under the Federal- Aid Highways Act

is achieved only by the limiting of contracts awarded (i.¢.

obligation). There is no possibility under that Act to re-

duce at the *‘allotment”™’ stage.

New York v. Train, 494 F.2d at 1046-47 (emphasis added).

The conferees’ reference to the mechanics of the Highway Act

is Strong indication that they expected allotment to be manda-

tory.

bi SIRS LON PEALE BM Bae ONE UAE LE LOT ELGINE LY LOND OE EEL AS LALLA NLA YAM

31 »

At least four federal district courts and the District of

Columbia Circuit Court of Appeals have held that allotment

in the Water Pollution Control Act is a non-discretionary,

administrative procedure.??

*2 Inthe lower federal court which tried the instant case. the district court

held:

[t]he language of the pertinent sections of the Act..read in the light of

their legislative history. clearly indicates the intent of Congress to

require the Administrator to allot, at the appropriate times, the full

sums authorized to be appropriated by §207.

358 F. Supp. at 679(D. D.C. 1973). This opinion was affirmed by the District

of Columbia Circuit: By

[BJelieving as we do that there is a clear distinction under the Act

between allotment and obligation and that there can be no discretion as

to the former, we find it unnecessary to consider whether an allotment

could be *‘augmented”™ in a later fiscal year: full allotment must be

made in each fiscal year.

New York v. Train, 494 F.2d at 1049. In Texas v. Fri, the district court

found: :

in light of the high priority placed by Congress on the Act, the language

of the Act, and the legislative history of the Act. this Court concludes

that the Administrator has a-mandatory duty to allot to the Plaintiffs the

sums authorized by Congress in §207 of the Act in accordance with

§205 (a).

No. A-73-CA-38, Slip Op. at 5-6(W.D. Tex.. Oct. 2. 1973). appeal argued,

No. 73-3965, Sth Cir.. April 29, 1974. In Minnesota v. USEPA, it was held:

In failing to allot all of-the money authorized in this matter, the Ad-

ministrator is acting in express violation of the purposes of the Act

itself as well as in violation of the purposes of the Act as set forth by

Congress. ee

No, 4-73 Civ. 133, Slip Op. at 13-14 (D. Minn., June 25, 1973). appeal

argued, Civil No. 73-1446, 8th Cir., Feb. 13, 1974. Also. in Florida v. Train,

the district court stated:

In view of the legislative history behind the Act and the goals sought to

be achieved by the Act it is illogical to believe that Congress accorded

the Administrator discretion at the allotment stage.

No. 73-156, Slip Op. at 6(N.D. Fla., Feb. 25. 1974). appeal argued, Civil

No. 73-3965, Sth Cir.. Apr. 29, 1974.

htt a 8 nto eam

As these cases have recognized, the function of allotment is

merely to parcel out the authorization and is not tantamount to

expenditure by the Federal Government. The general utiliza-

tion of allotment as a ministerial procedure to divide funds

among the states rebuts the Administrator's contention that

allotment is discretionary.

D. EVENIF DISCRETION IS FOUND, THE ADMINISTRA.-

‘ TOR’S ACTION IN WITHHOLDING FIFTY-FIVE

PERCENT OF AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE EXPRESSED

GOALS OF THE ACT.

The district court in Campaign Clean Water, Inc. v. Ruckel-

shaus,361 F. Supp. 689 (E.D. Va. 1973), determined that the

allotment phase of the Act confers discretion on the Adminis-

trator. On appeal*to the Fourth Circuit, neither party sought

review of the district court's finding of discretionary allotment.

In fact, the Fourth Circuit made emphatic declarations that the

issue of whether allotments were mandatory was not before

them. Campaign Clean Water, lté.v. Train, 489 F.2d 492, 497

(4th Cir. 1973). Most courts have found allotment manda-

tory.** However, even if the Court held allotment discretion-

ary, the actions of the Administrator constitute a per se abuse

of discretion and are reviewable by the Court. If allotment

is held to be non-mandatory. then the issue is whether the

Administrator's decision to allot only 45% of the authorized

amount constituted a per se abuse of discretion.

The standards as contained within the ‘Act show that 4577

allotment is aper se abuse of any arguable discretion since the

goals of the Act cannot be accomplished at this rate of allot-

ment. The purpose of establishing contract authority as the

method of funding was to facilitate state planning. A cut of 55%

in the amount of the funds allotted inhibit. the ability of the

*"See id.

gio @ ahr 1hisinaic

states to plan and thus frustrates the intent of Congress. As a

result of the Administrator's actions the states are unable to

make long range plans. with the result that the cities are unable

to determine the amount of funding they will receive from the

state. See p.24-25 supra.

As previously stated. the amount allotted was deemed by

Congress to be the “minimum amount needed” to attain the

goals of the Act. See 118 CONG. REC. $16870-71 (daily ed. Oct.

4. 1972) (remarks of Senator Muskie). Therefore. a cut of

more than half the funds. before the Administrator has éval-

uated any state plans or surveys. cannot be made without com-

pletely frustrating the goals of the Act: and frustrating the goals

of the Act is not a power within the discretion of any adminis-

trator.** In order for the goals of the program to be accomplish-

ed by 1985 it is essential that the states know hoW much money

is available for which they can attempt to qualify.

In reviewing the Administrator's actions the Court must

consider “‘whether the decision was based on a consideration

of the relevant factors... .° Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402. 416 (1971). On November 22. 1972.

President Nixon announced that the amounts allocated under

the Act would be aan reduced from the amounts

authorized. This announcement was made prior to any admin-

istrative examination of proposed state plans or surveys and

therefore apparently was not based on relevant water quality

factors. In fact. the expressed justification was not based on

water quality factors: ¢

These amounts will provide Jor improving water quality

and yet give proper recognition to competing national

priorities forour tax dollars, the resources now available

Even if discretion is available, allotting 48° of the authorization isa

per se abuse of discretion singe the 1973°" Needs Surveys indicates that the

states presently neéd at least 60 billion dollars to implement their plans.

USEPA, Report to fade elt Costs of Construction of Babli ly-Ow ned

Wastewater Treatment Works A-2. BL (1973).

RES RETS ne mm Ca oe ts comnegers

tor this program and the projected condition of the Fed-

eral treasury under existing tax laws and the sti LULOPS

limit on the nz wuonal debi

Letter from President Nixon to W reals D. Ruckleshaus, EPA

Administrator, November 22=1972. reproduced in Hearings

on Federal Budget for 1974 Before the House Comat. on

Appropriations€@3d Cong... Ist Sess. 194-95 (1973): see Brief

for Petitioner at 44. Further, the Administrator directly states

in his brief that he may exercise allotment discretion “‘in the

interest of overall government fiscal policies that are not re-

lated to the particular program involved.”’ Brief for Petitione:

at 10.

Fiscal considerations are the same rationale used by Presi-

dent Nixon in vetoing the water bill. While an acceptable rea-

son for veto, fiscal considerations are unrelated to the imple-

mentation of the Act itself. Such extrinsic considerations were

attacked in State Highway Comm'n v. Volpe, 479 F.2d 1009.

1114-15 (8th Cir. 1973):

We find nothing within these provisions of the [High-

way] Act which explicitly or impliedly allows the Secre-

tary to withhold approval >. .for reasons remote and un-

related to the Act.

When the provisions of the Federal- Aid Highway Act

are considered as a Whole. itis apparent that the Secretary

does not have the authority to withhold funds for antl

inflationary purposes.

The statute in the instant case does not contain provisions for

withholding for the purpose of controlling inflation. The court

in State Highway Comm'n v. Volpe, 479 F.2d at L114. stated

that:

It is impossible to find from these specific grants of

authority discretion in the Secretary to withhold approval

on projects Congress has specifically directed because of

a system of priorities the Executive Chooses to impose on

all expenditures. |

It is clear that the decision not to allot 85°; of the funds

authorized is an abuse of discretion, since it cannot be shown

that the President's decision was based on

factors relevant to implementation of the program. In sum. the

withholding in the instant case would be a per se abuse of any

available discretion for two reasons. First. the 8% withhold-

ing totally frustrates the Purposes of the program and se

condly

the reasons for impounding were irrelev

ant considerations.

Il. REFUSAL TO ALLOT FIFTY-FIVE PERCENT OF

THE AUTHORIZED FUNDS IS OUTSIDE THE CON-

, STITUTIONAL AUTHORITY OF THE EXECUTIVE

~ BRANCH.

A finding on constitutional authority is not imperative to

render a decision in the instant case since an order could be

issued to the Administrator to follow mandatory provisions of

the Act and, given compliance, there would be no necessity

to hold on a constitutional basis.2> However

a pervasive issue which has given rise to extensive litigation.

Further, the President2é as well as his spokesmen?? have

directly asserted the constitutional authority to impound. An

opinion from the Court on the constitutional framework for

impoundment would therefore prove Valuable as a guideline

to lower courts. However. ii should be noted that the newly

enacted Budget and Impoundment Control Act of 1974 may

have a profound effect on the impoundment issue and asser-

tions of constitutional authority .28

. IMpoundment is

eo .

to the constitutional author-

ity of the President to control expenditures. Brief for Pe

>> However, the Administrator does allude

titioner at 1.

**See note 39 infra.

“Ud.

““Sce note 7] infra,

a consideration of

”

m see OR EHE TY

PIECED IERIE NLR ERIE AER LE NET ELS LA LOD ELMEE AS LMOTP ED

vee

504

ESE SNL OIG LOA RLY el IO IM Be

ET OU TO LL LGD LIP EIS, FON

Pray

A. THEs FAITHFULLY, EXECUTE” CLAUSE OF THE

CONSTITUTION DOES NOT ACCORD DISCRETION

TO REFUSE TO IMPLEMENT CONGRESSIONAL.

ENACTMENTS.

The Exétutivé argues that the “faithfully execute’ clause

confers the right to selectively enforce or “harmonize” alleg-

edly conflicting statutes involving federal spending. The

Administrator states:

{the President] has the responsibility to evaluate the com-

peting needs of this program and other claims on the limit-

ed total federal financial resources from which all expend-

itures are made.

Brief for Petitioner at 12. This argument implicitly interprets’

“faithfully execute”’ as a grant of discretion and authority. In

fact, the faithfully execute clause represents a duty to perform

rather than a grant of discretion. The Executive must attempt

to execute the laws in good faith -- not circumvent the intent of

Congress.

Conflict purportedly results: when Congress appropriates

more funds than are allowed to be spent under limited revenues

and a debt limit. However, this conflict, when and if it exists.

need not be resolved by unilateral executive impoundment.

Even assuming arguendo that such a conflict was presented

- in this case, Congress has specified procedures for the Exec-

utive to follow in such an event. In the Budget and Account-

ing Act of 1921, section 202, 31 U.S.C. §13 (a) (1970), the Con-

gress provided that if estimated revenues for the fiscal year

plus estimated Treasury surplus carried over into that vear are

less than projected expenditures, then “the President in the

Budget shall make recommendations to Congress for new

taxes, loans, or other appropriate action to meet the estimated

deficiency.”’ (emphasis added). The legislative history of this

section clearly indicates that the word ‘‘shall’” was inserted

to mandate the Executive to return ta the Congress and not to

”

ied

take unilateral action. Significantly.

in the precursor of this

section the language was permissive

and not mandaton ae

Notably, the Executive has often requested Congress to

increase the debt ceiling to meet excess expenditures. In fact.

from March 15, 1972 to date, Congress has adjusted the ceiling

five times.*" These legislative responses indicate Congress

generally favors increased spending over maintenance of the

existing public debt and does not wish substantive programs

to be sacrificed to maintain that ceiling. See Note. Impound-

ment of Funds 86 HARV. L. REV. 1508, [82> (1973).

Further. as a temporary expedient, the Executive could

draw upon the Treasury's cash reserve of $6 billion and margin

for contingencies of $3 billion to avoid exceeding the debt limit.

Congress has acknowledged that this $9 billion could be drawn

upon to pay obligations without extending the debt limit. S. Rep.

No. 1292. 92d Cong.. 2d Sess. 5-6 (1972): see S. REP. NO. 249.

93d Cong.. Ist Sess. 10( 1973). Therefore. before there is evena

remote possibility of a conflict with the debt ceiling. the Execu-

tive could draw upon the $9 billion cushion for a considerable

"The predecessor to 31 U.S.C.§13 (a). the “Smith Amendment.” 35

Stat, 1027, March 4.1909. read as follow s

[To |theend that [the President | micv

his judgment the estimated appropri

to the public service be reduced so

- advise the Congress how in

ations could with least wyury

as to bring the appropriations Ith-

in the estimated revenues, or. if such reduction be not

practicable without undue injury to the public servic

recommend to Congress such loans or new tay

lo cover the deficiency. (er-shasis added).

in his judgment

e. that he may

esas may be necessary

The essence of the “Smith Amena.nent™ was later Incorporated into the

Budget and Accounting Act of 1921.31 U.S.C. $13. The principal difference

between the original language and the amended language ts that “may recom.

mend” was changed to “shall recommend.’

“Pub. L.. No. 93-173 (Dee. t. 1973). 87 Stat. 691: Pub. L. No. 93-S3 (July

1. 1973). 87 Stat. 134; Pub. L. No. 92-599 (Oct. 27. 1972)7 86 Stat. 1324: Pub.

L.. No. 92-336 (July 1. 1972). 86 Stat. 406: Pub. L. No. 92-880 (March 1S,

1972). 86 Stat. 63.31 U.S.C. A. §757 (b). note (Supp. 1974).

Sao

. , Ryans onan tyes SPS OTE Are nepap te

PRE EME DRT EISNER ITE ENE IED La ER RN ETSI OUR Ge ss TS ete

‘

POLAT TONES

DAS Ges ve

SR PAA ps Genin gets

Bese ree

—_

period of time without first having to return to Congress with

new recommendations."!

Significantly, the statutory procedure required by 31 U.S.C.

§13 (a) and the other alternative modes of solution to the alleg-

ed debt ceiling conflict present a strikingly similar parallel to

the situation facing President Truman during the “Steel Sei-

zure Crisis.” The Court in Youngstown Sheet & Tube

Co.v. Sawver, 343 U.S. $79, 887 (1952). struck down the Pres-

ident’s attempted seizure of the steel mills. holding that the

seizure could not be justified under his constitutional powers.

In 1947, Congress, in rejecting an amendment granting power

to seize private industries in emergencies,** expressed its view

that it would prefer to deal with such problems itself on an ad

hoc basis pursuant to presidential recommendations. 343 U.S.

at 599-600 (Frankfurter, J.. concurring): see 93 CONG. REC.

3637-45 (1947).

“In some circumstances the Government might even be able to extend

payments of contracts by afew weeks. so that outlays would occur in the next

fiscal vear. Note. /mpoundment of Funds, 86 HARV. L.. REV. ISOS, 1522

(1973). In fact. this Administration has on one occasion delayed payment of

general revenue sharing disbursements so as to be accounted for in the

Succeeding fiscal year. THE BUDGET OF THE UNITED STATES

GOVERNMENT. 1974 -- APPENDIX 764 (1973): see Pub. LL. No. 92-812. §102.

86 Stat. 919, 31 U.S.C. A. §1221 (Supp. 1974). /

*?Notably, the prior congressional rejection of the power exercised by

President Truman ts directly analogous to the cast.at bar. In recent action on

the public debt. Congress increased the borrowing power of the Government

while rejecting a limit on fiscal 1973 expenditures. Pub. L.. No. 92-599 (Oct.

27.1972). §201, 86 Stat. 1324, reprinted in 1972 U.S. CODE CONG. & ADM-

News 1542. Congress specifically voted on and rejected two amendments

which would have given the Executive the discretionary power to impound

appropriated funds. 118 CONG. REC. H10282-84 (daily ed. Oct. PX. 1972). ccd.

at H1022434, S18506. SI8SO8. SI8S10, S18512-30 (daily ed. Oct. 17, 1972);

id. at H9363-401 (daily ed. Oct. 10,1972). Compare H. R. REP. NO. 1614, 92d

Cong.. 2d Sess. 3-4 (1972), reprinted in 1972 U.S. CoDE CONG. & ADM

News. 4976-77. with H.R. REP. No. 1606, 92d Cong.. 2d Sess. 3-4(1972). re-

printed in 1972 U. S. CoDE CONG. & ADM. NEWS 4972-73: see S. REP. NO

1292. 92d Cong... 2d Sess. 1-2. 7-9 (1972), reprinted in 1972 U.S. Copt

ADM. NEWS 4948-49, 4954-56,

oa)

That ts precisely the policy expressed in 31 U.S.C. §13 cay:

The President cannot unilaterally do that which he can only

recommend. As Justice Clark stated: “[Where Congress has

laid down specific procedures to deal with the type of crisis

confronting the President. he must follow those procedures

in Meeting the crisis... .°° 343 U.S. at 662. Thus. given the

several alternatives available to the Executive to deal w ith the

alleged conflict between the debt ceiling and appropriations.

the executive branch should choose one of them rather than

circumvent the intent of a congressional enactment. as it has

done in the instant case by reducing allotments.*"

Therefore. the debt ceiling conflict cannot serve as a legal

Justification for the unilateral termination of a congressionally

authorized program. The Administrator has alleged only a po-

tential conflict. Even if such conflict were real. statutory pro-

cedures are available to resolve the conflict. procedures which

the Executive has failed to follow. Moreover. as Youngstown

has determined. when a subject is within the purview of con-

gressional power, and Congress has acted. the President may

notact in contravention of the stated legislative policy. 343 ULS.

at S86-89,

Further. the Executive has urged the responsibility to man-

age the economy under the 1946 Employment Act. 18 U.S.C.

$§1021-25 (1970). as conflicting with expenditure Statutes. 4

“Whatever the meritof Administrator's reliance onthe debt ceiling. it is

clearly a reason collateral to and remote from the purposes of the water

pollution control program. Therefore. it fally within the prohibition estab-

lished by State Highway Commin | olpe, 479 F.2d 1099) TTD Sth Ci

1973). where the court held that the Secretary of Transportation could not

withhold funds from state highway programs for reasons remote from and

unrelated to those which Congress had established. Se Guadamuz vo Ash,

368 F. Supp. 1233. 1241 6D. D.C. 1973).

“OMB Report Under Impoundment & Information Act. 39 Fed. Reg

7707, 7708 (1974), reprinted in 120 CONG REC. S4616, S4617 (datly ed. Man

28. 1974). Hearings on Bveccutive Impoundment of Appropriated..Funds

Before the Subcomm,. en Separation of Powers of the Senate Comm, on the

» Judiciary, 92d Cong... Ist Sess, 97 (1971) (testimony of Caspar Weinberger),

The Employment Act was designed to institutionalize the bud-

getas an economic tool. S. BAILEY. CONGRESS MAKES AL AW:

THE STORY BEHIND THE EMPLOYMENT ACT OF 1946, at

11-12 (1950). The Employment Act itself gives no particular

power to the President. In fact. it limits him to an advisory role

and places enactment power in Congress. There is no refer-

ence to inflation in the Act. and the timing of its passage im- -

mediately after World War II confirms that the main concern

Was promoting an economy able tv provide jobs for the return-

ing veterans, rather than fighting inflation.** In its original form

the bill was titled Fu// Employment Act and was dedicated to

that goal. S. BAILEY. supra; see 15 U.S.C. §1021 (1970). A log-

ical construction of the Employment Act indicates that it con-

templates final policy determinations being made by Congress.

Although recommendations from the President are envision-

ed. the provisions for a congressional committee indicate the

intent for ultimate legislative input. See 15 U.S.C. §§1022-24

(1970). The Act would. therefore, not justify impoundment

without review or approval by Congress.*® See Massachusetts

v. Weinberger, Civil No. 1308-73 (D.D.C.. July 26, 1973), re-

printed in 119 CONG. REC. S15044, S15045 (daily ed. July 30,

1973). See also Louisiana v. Weinberger, 369 F. Supp. 856,

864 (E.D. La. 1973),

“Economic studies have raised questions as to the efficacy of im-

poundment as a fiscal tool. The studies indicate that current impoundments

have caused some unemployment and have failed to significantly reduce

inflation. Levinson & Mills. Budget Reform and Impoundment Control, 27

VAND.L. REV. 618, 620-21 (1974); Findings of McIntosh Foundation Execu-

tive Impoundment Project. 119 CONG. REC.S21120, S21124 (daily ed. Nov.

27. 1973).

‘©The Administration has also cited the Economic Stabilization Act

Amendments of 1971. 12 U.S.C. §1094 (Supp. [1 1972). as a broad grant of

power to the Presidem to impound for economic reasons. OMB Report

Under Federal Impoundment & Information Act, 38 Fed. Reg. 19,582

(1973). However, amendments enacted in 1973 contain a direct prohibition of

impoundments under the Act. Pub. L.. No. 93-28 (Apr. 30, 1973). §4. 87 Stat.

27, 12 U.S.C. A. §1904, note (Supp. 1974).

Thus. when juxtaposed with the statutory mandate of the

Water Pollution Control Act for full allotment and the policy

that the waters of America be restored by 1985S. neither the

debt ceiling nor the 1946 Employment Act present the Execu-

live with conflicting statutory responsibilities so as to justify

unilateral reduction of allotment under the “faithfully exe-

cute’ clause. Reason and precedent dictate that the direction

to “faithfully execute’ is nota carte blanche to arbitrarily cur-

tail some programs and execute others. See National Council

of Community Mental Health Centers, Inc. y. Weinberger, 36]

F. Supp. 897, 901 (D. D.C. 1973). See also National Treasury

Employees Union v. Nixon, 492 F.2d 587. 604 (1974). In a

memo regarding impoundment written while an Assistant

Attorney General, Justice William Rehnquist reasoned: “Ct

seems an anomalous proposition that because the Executive

branch is bound to execute the laws. it is free to decline to

execute them."**? Further. the Court has stated:

- To contend that the obligation imposed on the President

to see the laws faithfully executed, implies a power to for-

bid their execution, is a novel construction of the consti-

tution, and entirely inadmissable.

Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524.

613 (1838).

The Executive's failure to faithfully execute the Water Pol-

lution Contro! Act. by refusing to allot. amounts to legislation,

a power clearly prohibited to the Executive. See Local 2677.

AFGE v. Phillips, 358 F. Supp, 60. 76-77 (D. D.C. 1973). See

also Guadamuz v. Ash, 368 F. Supp. 1233, 1241-42 (D.D.C.

1973). Inthe Federal Convention of 1787, the States unanimous.

ly rejected amotion “that the National Executive have a power

“Memo from William Rehnquist reproduced in Joint Hearings on §.

373 Before the Ad Hoe Subcomm. on Impoundment of Funds of the Senate

Comm. on Government Operations and the Subcomm: on Separation of

Powers of the Senate Comm, on the Judiciary, 9d Cong.. Ist Sess. 390, 394

(1973) ,

to suspend any Legislative act....°°8 As the Court stated in

Youngstown Sheet & Tube Co. v. Sawver, 343 U.S. 579, $87

(1952), “the President's power to see that the laws are faith-4

fully executed refutes the idea that he is to be a lawmaker.”

Clearly. the faithfully execute clause does not authorize the

Executive sactions in the instant case. In fact. the clause pro-

hibits and condemns the failure to fulfill the mandate of the

Water Pollution Control Act.

B. THE EXECUTIVE DOES NOT HAVE INHERENT

AUTHORITY TO REFUSE TO CARRY OUT THE PUR-

POSES AND PROVISIONS OF CONGRESSIONAL PRO-

GRAMS DULY ENACTED INTO LAW.

The President asserts that he has the inherent power to im-

pound,*® on the basis of the constitutional provision that

‘(t]he executive Power shall be vested in a President of the

United States of America.’ U. S. CONST. art. I]. §1. In deter-

mining the extent of power inherent in the presidency. there are

generally three criteria: (1) the lack of an express constitutional

commitment of power to a coordinate branch or of an express

prohibition of its exercise by the President; (2) the historical

and customary exercise of a power by the Executive over a

"H.R. Doc. No.398, 69th-Cong.. Ist Sess. 152 61927) (Documents H-

lustrative of the Union of American States): see id. at 753.

* Ata news conference held in January. 1973. the President stated:

The constitutional right for the President of the United States to im-

pound funds and that is not to spend money. when the spending of

money would mean either increasing prices or increasing taxes for all

the people. that right is absolutely clear.

9 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS II (1973). See

also Join. Hearings on §. 373. supra note 37, at 270 (statement of OMB

Directoy Roy Ash):id. at 369 (statement of Deputy Attorney General Joseph

Sneed): id. at 836-37 (Dep't of Justice Answers to Questions Concerning

Impounding of Appropriated Funds Posed by-Sen. Ervin in his letter of Feb.

14. 1973. to the Dep. Att'y Gen.). e

long period of time. coupled with tacit or express congression-

al approval: and (3) the existence of a situation that necessi-

tales executive action for the public interest. See Youngstown

Sheet & Tube Co. y. Sawyer, 343 U.S. $79. 585-89 (1952): Fong

Yue Ting v. United States, 149 U.S. 698. 7EL (1893): Legal

Tender Cases, 79 U.S. (12 Wall.) 457, 534-35 (1871),

No provision of the Constitution clearly commits the “im-

poundment™ power to a coordinate branch or explicitly pro-

hibits its exercise by the President. The grant of the appropria-

tion power to Congress does not. on its face. give Congress

power over the manner in which appropriations are executed.

although this extension may be reasonably implied as a neces-

sary adjunct. However, other constitutional provisions bear

directly on the issue and provide a textually demonstrable

commitment of the power to make policy as distinguished from

merely spending. Article | of the Constitution vests the legisla-

tive power in the Congress. This implies that Congress alone

shall determine national policy except: (1) when a veto is sus-

tained: (2) when a statute is declared unconstitutional. or (3)

when the Constitution commits certain policymaking power to

another branch.*” One of the principal methods by which Con-

gress can determine national policy is by enacting authoriza-

tion or appropriation bills. Thus, if the Executive impounds

funds or terminates programs and thereby frustrates the con-

gressional policy underlying the authorization or appropria-

tion, he usurps the policymaking power. which article | vests in

Congress. Therefore. as to impoundments that affect legisla-

tive policy, a textually demonstrable commitment is present

Levinson & Mills. /mpoundment: A Search for Legal Principles, 26 U.

Fia L. REV. 19], 193 (1974).

ee ee

which precludes exercise of inherent presidential authority."'

Where the text is unclear, the standard is whether the prac-

tice is one of long standing and whether action or inaction of

Congress has added a gloss to presidential powers. In United

States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

the Court ruled that the President was the nation’s representa-

tive in foreign affairs and cited prior congressional acts which

took cognizance ef that fact. In United States v. Midwest Oil

Co., 236 U.S. 459 (1915). the Court found that even congres-

sional sitence could acknowledge the existence of an executive

power. The Court emphasized, however, that the holding did

not ‘mean that the Executive [could] by his course of action

create a power.” /d. at 474. Thus, even though an act may con-

tinually occur, it may still be unconstitutional.

The President is currently relying heavily on long standing

congressional inaction in the face of ongoing impoundment.**

However. the historical argument as applied to the instant case

and other contemporary impoundments is without support

since President Nixon’s impoundments are significantly dif-

ferent from those of past administrations.** Before Franklin

‘See Louisiana V. Weinberger. 369 F. Supp. 856, 864-65 M.D. La.

1973); Guadamuz v. Ash, 368 F. Supp. 1233, 1241. 1243-44(D. D.C. 1973):

Community Action Programs Executive Directors Ass'n of New

Jersey. Inc. v. Ash. 36S F. Supp. 1358. 1360-61 (D. N.J. 1973).

National Council of Community Mental Health Centers, Inc. v. Weinberger.

361 F. Supp. 897. 901¢D. D.C. 1973): Oklahoma v. Weinberger. 360 F. Supp.

724. 728(W.D. Okla. 1973); Local 2677. AFGE v. Phillips. 358 F. Supp. 60,

76-78 (D.D.C. 1973); American Ass'n of Colleges of Podiatric Medicine v.

Ash. Civil No. 1139-73, Slip Op. at 3(D.D.C.. Oct. 26. 1973): Massachusetts

v. Weinberger. Civil No. 1308-73 (D.D.C.. July 26. 1973) reprinted in 119

CONG. REC. $18044, SIS045 (daily ed. July 30. 1973): National League for

Nursing v. Ash. Civil No. 1316-73. Slip Op. at 4 ( D.D.C.. July 10, 1973).

"2§¢¢ Joint Hearings on §.373, supra note 37. at 359 (remarks of Dep.

Atty Gen. Sneed).

“Levinson & Mills. Impoundment: A Search for Legal Principles.

supra note 40, at 198-99 (1974), sce Fisher. Impoundment of Funds:

Uses and Abuses, 23 BUFFALO L. REV. 141 143-70 (1973); Miller.

Impoundment: The New Constitutional Crisis. THE PROGRESSIVE. March

1972. at 1S, t

D. Roosevelt there were but isolated instances of impound-

ment.!* President Roosevelt impounded only public works and

military appropriations.*° The administrations of Presidents

Truman. Eisenhower. and Kennedy reveal no pattern of im-

pounding domestic nen-military appropriations.*° Further.

two Presidents specifically stated)they felt they did not have

the power to affec: statutory policy by controlling spending.’

Not until the Johnson Administration have amounts been im-

pounded from comestic programs for fiscal reasons. How-

ever. the Johnson precedent. less than ten years old. provides

‘no support for similar action by his successors. The Nixon

impoundments. while similar in the aggregate amounts involv-

ed. are qualitatively different. The Johnson impoundments had

relatively minor impact upon most programs.** In contrast.

President Nixon has deliberately and frankly imposed his own

"See Stanton. The Presidency and the Purse: Impoundment 1808-1973.

45. U. Coto. b. REV. 25, 26-28 (1973).

Williams, The Impounding of Funds by th, Bureau of the Budec:.

reprinted in Joint Hearings on 8.373, supra note 37. at S44.

"See Fisher, Presidential Spendine-Discretion and C congressional Con-

trols, 37 LAW & CONTEMP. PROB. 138. 162 (1972).

“With regard to his own exercise of spending discretion. President

Franklin D. Roosevelt. a Proponent of a strong presidency, Stated: “fo}ur

Statutory sy stem of fund apportionment is nota substitute for item or blanket

Veto power and should net be used to set aside or nullify the expressed will of

Congress 7...°° Letter from President: Roosevelt reproduced im part in

Hearings on H. R, 3598 Before a Subcomm. of the Senate Comm. on AIppro-

priations, 78th Cong.. Ist Sess. 739 (1944). President Kennedy also rejected

a broad power to impound with regard to federal funds to be given to segre-

gated schools. Although he believed such funding violated the equal protec-

tion and due process clauses as interpreted by the Court. he stated: ““Idon't

have the power to cut off the aid in a general way). and | think it would

protably be unwise to give the President of the United States that kind of

power.” N.Y. Times. April 20. 1973. at 1. col.

“Note. Impoundment of Funds, 8 HARV 1. REN ISOS. 1512 (1973):

Findings of MeIntosh Foundation Executive Impoundment Project. 119

CONG. REC $21120. S21125 (daily ed. Nov. 27. 1973),

priorities." and has thereby frustrated the intent of Congress

with regard to numerous domestic pregms.*" This policy-

oriented series of impoundments ts unsupported by tradition®!

and, therefore. can not justify reliance upon inherent authority

asa predicate for terminating congressionally authorizea pro-

grams.

The public interest rector, the third criterion for recognition

of inherent executive power, applies only to short-term reac-

lions to emergency situations, In re Neagle. 135 U.S. 11890).

Where legislative ratification is expected. United States v. Mid-

west Oil Co., 236 U.S. 489 (91S). In the instant case no such

emergency has even been alleged by the Administrator.

Further, even a purported “national emergency "is notalways

sufficient to sustain a claim of inherent power. In Youngstown

Sheet & Tube Co. v. Sawver, 343 U.S. 579 (1952), the Court

ruled that the President was not empowered to seize the steel

mills in order to maintain production for the war effort.

Moreover. even ifa’ national emergency’ of a magnitude to

justify $$¢¢ allotment reduction was in existence, there is no

expectation of legislative ratification. Waited States v. Mid-

west Oil @ 6 U.S. 459 (1915). To the contrary, congres-

Stonal response to this kind of behavior by the Executive has

been severg.?* |

Tis difticult to deny that President Niven himself felt that allotment ot

authorized funds was mandated by the Act. precisely because he vetoed iton

the grounds that it was too expensive. There was no point in the veto if the

unfettered discretion the President now asserts had existed. In effect. the

President has reinstated the veto which Congress overrode by merely read-

ing the statute as he chose.

bisher. dmpoundment of Funds: Uvex and Abuses: supra note 43. at

169-88: Levinson & Milly. Budeer Reform and Impoundment Control, 27

VaANb REV 618. 618, 620 (1974): Levinson & Mills. dinpoundment: A

Nearch tor Legal Principles. supra note 40. at 199.

Vd Joust Hearings on S. 373. supra note 37. passimy Hearines on

Prccutive Impowundment, supra note 34. passin

“The new Congressional Budget and Impoundment Control Act ot 1974

hastestricted authority to accomplish withholding such as that accomplished

inthe instant case. See note Th intra

Another limitation to inherent power, which ts particularly

related to President Nixon's impoundments. was stressed in

Curtiss-Wright, 299 U.S. 304( 1936). Where the Court recogniz-

ed a distinction between inherent power in the realms of for-

eign policy and domestic affairs. The Court stated that inherent

powers were much more restricted in the domestic arena, id.

at 320. in which most of President Nixon's impoundments have

vecurred, including the instant case. See OMB Report Under

Federal Impoundment & Information Act, 38 Fed. Reg.

IY.S8T (1973). Thus. the impounding of domestic pro-

grams can derive little authority from the President's foreign

affairs powers. See Guadamuz Ash, 368 F. Supp. 1233, 1243-

44 (D.D.C 1973); National Council ef Community Mental

Health Centers, Inc. v. Weinberger, 361 F, Supp. 897, 901

(D.D.C. 1973). To conclude otherw ise Would justify domestic

executive action on a foreign policy basis for almost any act

imaginable. The distinction between the President's domestic

and foreign affairs powers is Meaningful only upon the assump-

tion that some activities are regarded. for these purposes, as

being too remote from foreign affairs. Impoundment of domes-

tic program funds has only an indirect connection with foreign

affairs, and does not invoke the foreign affairs power in the

Way Indicated by Curtiss-Wright,

No constitutional authority in the Executive. inherent or

otherwise. grants the power to USUTP prerogatives of another

branch or ignore duly enacted laws. The Constitutior, recog-

nizes specifically the Executive's role regarding the enactment

oflaws. The concept of inherent authority cannot be used as 2

means of appending an unconstitutional veto power to the legi-

timate executive duty to implement legislative policy. The

President must not be allowed to accomplish through jim-

poundment that which he could not accomplish through veto of

the Water Pollution Control Act.

RAY

aa ete St

eats oaiad

SLL OLLI RAE BTS SR DEAS AS ABE BE BRP PE Fo

PPE Bl te

C. THE EXECUTIVE'S REFUSAL TO IMPLEMENT THE

WATER POLLUTION CONTROL ACT, EVEN AFTER

PASSAGE OVER AN EXECUTIVE VETO, REPRE-

SENTS AN UNCONSTITUTIONAL EXPANSION OF

THE VETO POWER.

The President's role in legislation is made clear in the veto

provision of the Constitution. Art. 1, §7, When Congress pass-

es a bill, the President has the power to veto it, after which it

returns to Congress and may be overridden. Discussions of the

veto power in the Constitutional Convention show that a veto

without override was considered (termed “‘absolute negative”)

but was rejected unanimously as placing too much authority in

the hands of a siggle man?" In the case at bar, the unilateral

refusal to aaplente a duly enacted statute deprived Congress

of its constitutional opportunity to override President Nixon's

“veto” accomplished by means of impoundment. If the Presi-

dent frustrates the will of Congress by impounding. with no

opportunity for congressional override, he achieves the equiv-

alent of an absolute veto. In the instant case, the use of the con-

stitutional veto had already been overriden and the impound-

ment operated as a second and absolute veto.

Moreover. the Executive in the instant case has exercised an

unconstitutional item veto by failing to allot 55° of authorized

funds, while allotting the balance. The Constitution makes no

provision fo ‘an item veto and the numerous proposals to intro-

duce this feature into the Constitution have been rejected.”!

Ss JF Errior. DEBATES ON THE ADOPTION OF THE FEDERAL

CONSTITUTION EST-S4. 836-38 (ed. 1941).

SE CORWIN, THE PRESIDENT OFFICE AND POWERS 280 (4th ed.

1981): Ro WALL ACE. CONGRESSIONAL CONTROL OF FEDERAL SPENDING

141-42 (1960): vee Note. The Trem Veto in the American Constitutional ,

System. 28 GEo LJ. 106 (1936). Jom Hearings on 8.378. supra note 37. at

110-14 (Attachment to Stuement of Comm Gen. Elmer Staats).

49)

Congress overrode the presidential veto of the Act by a sub-

stantial margin and it should have henceforth been implement-

ed consistent with the expressed will of the Act. Refusal to

carry outthe Actamounted to a circumvention and an addition

to the constitutional process of veto.

IH. THESOVEREIGN IMMUNITY DOCTRINE ISNOBAR

WHEN THE ADMINISTRATOR FAILS TO PERFORM

A STATUTORY DUTY OR EXCEEDS HIS DISCRE-

TION.

The assertion of sovereign immunity has been almost uni--

formly rejected in impoundment cases*® and does not present

a bar to justiciability in the instant case. Rejection of sovere‘gn

immunity is supported by the reasoning that the doctrine is not

intended to protect actions outside the law. The doctrine of

sovereign immunity has been continually eroded both through

Specific waivers’ and a general narrowing of the doctrine?’

although it is still routinely raised by the Government.°>*

TED SIONS NALIN RNB NI OF

a ge <r SSE HOOLL LAE BOOP LIS A

“New York ¥. Train, 494 Fo2d 1033. 1038-39 (DC. Cir, 1974): Cam- :

pain Clean Water. Ine. v. Train, 489 Fo2d 492. 49S (4th Cir, 1973): State :

Highway Comm'ny. Volpe. 479 F.2d 1099) 1123 (8th Cir, 1973): Louisiana 4

Weinberger. 369 F.Supp. 856. 861-62 (FD. La 1973): Guadamuz «Ash.

X68 FL Supp. 1233. 1238¢D.D oC. 1973): Brown. Ruckelshaus. 364 F.Supp. :

258. 261 0C.D. Cal. 1973): National Council of Community Mental Health =

Centers, Inco. Weinberger. 361 b. Supp. 897. 900 CD. DLC. 1973): Local

2677) AB GE v. Phillips. 388 BF, Supp. 60. 68-69 (DID LC) 1973) Bur vc :

Housing Authority of San Francisco v. HU D. 340 F.Supp. 654. 6860N_D. M3

Cal. 1972): San Francisco Redevelopment Agency vo Nixon. 329 | Supp

672 (ND. Cal. 1971), é

“Two major eXamples of general warvers of rmmunity are the Tucker E

Vet. 28 UOS2C. $1491 (1970). and the Tort ¢ laims Act of 1946, 28 USC :

81346. (6) (1970): specific statutes also allow sult against individual agencies, €

see eg. Housing Act of 1937.42 ULS.C) §§ 1401-48 (1970), :

“Peg. Landy. Dollar, 330: U.S. 731 1947) :

“See Hearings on “Sovereign Lmmunity’ Before the Subconun. on i

hdminivtrative: Practice and Procedure of the Senate Comm. on thy .

Judiciary, 91st Cong... 2d Sesy 28-30, 64-75 (1970) ‘

A. THE ADMINISTRATOR’S ACTIONS ARE IN VIOLA-

TION OF HIS LEGAL DUTIES UNDER THE ACT AND

CONSEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN “OFFICER SUIT.” A WELL ESTAB-

LISHED EXCEPTION TO SOVEREIGN IMMUNITY.

Judicial review has been made available when the officer or

federal agency has acted in excess of its statutory authority,

acted in an unconstitutional manner, or acted pursuant to an

unconstitutional grant of authority. Dugan v. Rank, 372 U.S.

609. 621-22 (1963): Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682. 689-91 (1949). In addition, Rockbridge v.

Lincoln, 449 F.2d 567, 572-73 (9th Cir. 1971). established that

the exception applies when an official fails to pertorm a statu-

tory duty. An action, within the exception to the doctrine,

against an official or agency is commonly knownas an “officer

suit..’ The philosophy behind the exception to the sovereign

immunity doctrine is expressed in The Floyd Acceptances, 74

U.S. 666, 676-77 (1868):

We have no officers in this government, from the Presi-

dent down to the most subordinate agent. who does not

hold office under the law, with prescribed duties and limit-

ed authority.

It isexplicitly alleged in the instant case that the Administra-

tor not only acted beyond his statutory authority in failing to

comply with the mandatory allotment, but he also acted in an

unconstitutional manner. All courts which have ruled on the

Water Pollution Control Act impoundments have found that

sovereign immunity presents no bar to judicial review when

5] ,

there ts an allegation and subsequent finding of violation of

Statutory or constitutional duty >"

Of the over sixty impoundment cases decided to date" in

“Judge Merhige. in Campaign Clean Water, Inc. v. Ruckelshaus, 361

F. Supp. 689. 694-95 (ED. Va.) remanded with directions wih mom. Can-

patgn Clean Water, Inc. ve Train, 489 F.2d 492 (4th Cir. 1973). held:

the instant matter squarely falls 2. within a well-settled eXception to

the sovereign immunity doctrine... .suit may be brought against an

officer of the United States to challenge an action which alleved!y ex

ceeds statutory authority or. if within the scope of authority. is pre-

Mised upon a power which is unconstitutional... The complaint

alleges that the defendant has exceeded his Statutory authority in

impounding funds. If sustained on the merits. plaintiff will come with-

in the above recited exception to the doctrine. (emphasis added).

In New York v. Ruckelshaus, 388 F. Supp. 669.673(D. D.C. 1973). aff'd sub

nom New York v. Train, 494 F.2d 1033.(D.C. Cir. 1974). Judge Gasch held:

plaintiffs action falls squarely withinethe exception covering suits

challenging actions by federal officers hich go beyond the scope of

their statutory powers. ~~

The court in Brown v. Ruckelshaus noted:

Both complaints alleve that the EPA has exceeded its statutory author-

ity in impounding the authorized funds. If sustained on the meyits.

Congressman Brown and Los Angeles would fall within the

evception....

64 F. Supp. 288. 2610C.D. Cal. 1973) (emphasis added). See New York v.

Train, 494 F.2d 1033. 1038¢D.C. Cir. 1974): Campaign Clean Water. Inc. v.

Train, 489 F.2d 492. 495 (4th Cir. 1973). Further. other courts considering

impoundment cases have consistently ruled that allegations of breach of

Statutory duty defeat any claim of sovereign immunity. In Louisiana \.

Weinberger, 369 F. Supp. 856. 861-62 (ED. La. 1973). the court maintained:

It has now been held in several cases that the sovereign immunity

doctrine does not bar impoundment suits which are based on the

dlegation that defendants’ actions are beyond the scope of their

Statutory authority and are. therefore. unconstitutional. (emphasis

added).

“*The most comprehensive collection of impoundment cases decided by

federal courts is 1. FISHER. COURT CASES ON IMPOUNDMENT OF FUNDS

A PUBLIC POLICY ANALYSIS. (Congressional Research Service. Library of

Congress, multilith, March 18, 1974).

which sovereign immunity has been raised. only one has ac-

cepted the defense of sovereign immunity.®! Housing Author-

itv of San Francisco v. HUD, 340 F. Supp. 654. 656(N.D. Cal.

1972). In this case. the district court interpreted the statute

involved to be discretionary. Sovereign immunity applied since

the Administrator, in the court’s understanding. acted within

the discretionary language. Given this conclusion, the holding

is consistent with the doctrine of Larson.

An additional restriction to waiver of sovereign immunity

exists Where a judgement ‘‘would expend itself on the public

treasury or domain or interfere with the public administra-

tion.” Land v. Dollar, 330 U.S. 731, 738 (1947). This was fur-

ther detailed by the Court in Larson to allow sovereign immu-

nity to prevent a suit where judgement *‘will require affirmative

action by the sovereign or the disposition of unquestionably

sovereign property.” Larson v. Domestic & Foreign Finance

Corp., 337 U.S. 682, at 691 n.11 (1949). The Ninth Circuit

interpreted Larson as applying where “relief sought would

work an intolerable burden on governmental functions. out-

weighing any consideration of private harm.”” Washington \.

Udall, 417 F.2d 1310, 1318 (9th Cir. 1969).

The instant case involves no expenditure on the treasury

or interference with public administration. If anything, the

action in the case at bar promotes compliance with public ad-

ministration according to the law. Further. there is no expend-

iture from the treasury for two reasons. First, ordering the

"In another cause, San Francisco Redevelopment Agency v. Nixon, 329

F. Supp. 672(N.D. Cal.1971), the district court avoided consideration of the

exception to sovereign immunity by simply holding that mandamus would

not lie to force President Nixon to allot funds. The court believed it could not

directa mandate toward the person of the President. This view, however. has

been overruled. E.g.. National Treasury Employees Union v. Nixon. 492

F.2d S887. 616 ¢ D.C. Cir. 1974).

Administrator to allot results only in funds being made avail:

able for obligation and does not result in expenditure."* Second.

the funds are already authorized to be expended by law: there

is NO UNcONsented drain on the treasury -- “the sovereign” has

already consented to expenditure by making a law allowing

expenditure.** The Ninth Circuit: in Rockbridge similarly

reasoned:

“In New York v. Ruckelshaus, 388 F. Supp. 669. 673 (D. D.C. 1973),

Judge Gasch held:

Defendant is not aided by the general rule set forth in Land v.

Dollar... for... the relief sought by plaintiff in this action does not

a. PeQuire the expenditure of unappropniated public funds (or indeed of

any public funds at all). nor will it interfere w ith the lawful exercise of

defendant's discretionary powers under the Act... Plaintiff is de-

manding only that funds be a/lotted as. IN its View. Congress required.

Similarly. it was held in Brown v. Ruckelshaus, 364 F, Supp. 258. 261 (C.D.

Cal. 1973);

Here the suit is. . ‘requesting relief that does not require the expendi-

ture of any unappropriated funds. They only ask for the allotment of

the funds. and the EPA retains the discretion not to incur any ooliga-

tion to expend them. There is no interference with the lawful exercise

of Defendant's discreWonary powers under the Act.

The district court in Texas v. Fri held:

the relief would not cause the expenditure of any unappropriated funds

but only the a/lomment to the States of such funds ....While these

funds would become available for obligation. they would not thereby

become obligated until Defendant approves a specific grant,

No. A-73. CA-38, Slip Op. at 3(W.D. Tex... Oct. 2. 1973). appeal argued.

No. 73-3968. Sth Cir... Apr. 29. 1974,

"Lower courts have consistently held that soy ereign immunity is not a

bar if the funds to be expended have already been authorized or appropriated

by Congress. In National Council of Community Mental Health Centers,

Inc. v. Weinberger, 361 F. Supp. 897, 900 (D.D.C. 1973). the court held:

{A}ny affirmative order of this Court « ould be premised on a determi-

nation that official action by the defendants in refusing to spend is

beyond their Statutory or constituuonal powers. This would go no

further than to require the spending of funds already appropriated by

Congress to achieve the declared Purposes of the Act. Accordingly .

there can be no effective assertion of sovereign immunity and the

defendants’ actions are reviewable by the courts.

(cont'd)

Appellants are not seeking money damages from the

government, nor are they seeking to assert some right

against it or to block a government project. The relief

they seek does not in any way affect the sovereign power

of the United States. The government is not asked to give

up a right. to grant a concession, to dispose of property

or to relinquish authority. Appellants merely seek a court

order directing certain government officials to perform

acts Which Congress has already directed those officials

to perform....

449 F.2d 567. 573 (9th Cir. 1971).

Judgement in the case at bar is not an “intolerable burden”

but merely an enforcement of a duty. The action does not seek

the actual expenditure of funds, but is only seeking perform-

ance of a ministerial act. The Executive may not rely on the

doctrine of sovereign immunity to frustrate the will of the sov-

ereign. The Constitution vests control over the government's

property and grants the power to appropriate and legislate to

Congress. When Congress enacts a law to expend, as with the

Water Pollution Control Act. enacted over presidential veto.

" Coont ad)

The district court in Local 2677, AFGE: v. Phillips, 358 F. Supp. 60. “8-69

(D.D.C. 1973). held:

the relief which the Plaintiffs seek would not be a drain on the public

purse. No injunction to spend unappropriated funds is sought...

{Ajny order of this Court requiring the defendant to act in accordance

with the mandate of Congress would uraw upon funds appropriated

for that purpose.

In State Highway Commeny. Volpe, 479 F.2d 1069, 1123 (8th Cir. 1973). the

bighth Circuit Court of Appeals maintained:

we do not consider the court's decree . .as being affirmative in nature.

It requires only that the defendent officers cease unauthorized ac-

tion... . The resultant release of funds ts only to the extentthat Con-

gress has already authorized them to be appropnated and expended.

the sovereign has expressed its will.“! The Administrator

alleges “plaintiff is seeking to compel a government official to

furnish him with greater government funds than the official be-

lieves is appropriate... ."° Brief for Petitioner at 37-38. The

observation is exactly true and demonstrates precisely why

States and municipalities must seek to compel the “official” to

perform his duty according to statutory intent as interpreted by

the Court rather than according to whet the official “believes

IS appropriate.””

Bo THE ADMINISTRATIVE PROCEDURE ACT OPER-

VTES AS A WAIVER OF SOVEREIGN IMMUNITY

AND PERMITS REVIEW OF THE ADMINI-

STRATOR’S REFUSAL TO ALLOT.

While sovereign immunity can be avoided by the “officer

So SUILS itis also waived by the APA. which would likewise

| allow review in the instant case. The Provision which supports

/ Waiver is section 10. 5 U.S.C. §702. Whether seétion 10 con-

SUlutes a basis for waiver of sovereign immunity has been a

\ much debated issue. The Administrator summarily alleges the

APA ts nota waiver of sovereign immunity. citing Blackmar v,

Guerre, 342 U.S. 512. 515-16 (1952). in Which the statement

was made: “Still less is the Act to be Jeemed an implied

waiver of all governmental imm nity from suit.”

Of course the argument in the Instant case is not that there

Is a general waiver of all immunity but that the APA, in nn

stances where an administrator exceeds his authority. grants

the right to review to” [a] person: . adversely affected or

agerieved by agency action. ...° 8 U.S.C. §702 (1970).

“In effect. the enactment of legislation to dispose of property isa waiver

of sovereign immunity. Seo Comment. Px vidential Impounding of Funds:

The Judicial Response. 40 U. CHIL. REV. 328. 349 (1973), W aiver is

undisturbed by later administrative actions contrary to congressional Policy.

Clakamas County v. Mc Kay. 219 F.2d 479, 493(D.C. Cir. 1984). vacated as

moot, 349: U.S. 909 (1988).

VPM AO A Aaah ha! LM LP LP PRES NLO RE SOU CE ND BABIN go

Sovereign immunity has been increasingly abrogated by find-

ings that the APA is an implied waiver." Three circuits now

_ adopt this position.*® Although a majority of circuits have not

accepted the proposition that the APA is an implied waiver,

the better conclusion is that an act which shows as one of its

goals reviewability of agency action would contemplate a

waiver Of sovereign immunity to allow that review.®? As the

D.C. Circuit has reasoned: “It seems axiomatic to us that one

must imply, from a statement by the Congress that judicial

review of agency action will be granted, an intention on the part

of Congress to waive the right of sovereign immunity; any

other construction would make the review provisions illu-

sory.” Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 874

(D.C. Cir. 1970).

C. SOVEREIGN IMMUNITY IS— SPECIFICALLY

WAIVED BY SECTION 505 OF THE WATER POL-

LUTION CONTROL ACT.

One method of removing sovereign immunity is by specific

waiver. The Act contains such provisions under which a

citizen is given jurisdiction to sue an administrator for alleged

failure to perform an act which is not diseretionary under the

statute. Respondents in the instant case fall within the purview

of the statutory waiver:

"See Student Project. Federal Administrative Law Developments -

1971, 1972 DuKE L.. REV. 115, 244.

“’Scanwell cabs.. Inc. v. Shaffer. 424 F.2d 859. 873 (D.C. Cir. 1970):

Kletschka v. Driver. 411 F.2d 436. 445 (2d Cir. 1969); Estrada v. Ahrens, 296

F. 2d 690 (Sth Cir. 1961): See Warner v. Cox, 487 F.2d 1301, 1304-05 (Sth Cir.

1974) (APA constitutes general waiver except in actions ex contractu for

money damages).

“4ecord, Constructores Civiles de Centroamerica, S.A. v. Hannah,

459 F.2d 1183. 1191 (D.C. Cir. 1972); Local 2677, AFGE v. PHthlips. 358 F.

Supp 60. 69 (D.D.C. 1973).

a + AER Mitac trons p bet Pe ii w

a ~_ LAO ALS. ANID REA

a oe hance

CITIZEN SUITS

Sec. 505 (a) Except as provided in subsection (b) of this

section. any citizen may commence a civil action on his

own behalf --

(2) against the Administrator where there is

alleged a failure of the Adnunistrator to perform any

act or duty under this Act which is not discretionary

with the Administrator. °

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

Parties, to enforce such an effluent standard or litnitation,

or such an order, or to order the Administrator to perform

such act or duty, as the case may be, and to apply any

appropriate civil penalties under section 309 (d) of this

Act. [emphasis added ]

(g) For the purposes of this section the term

“citizen” means a person or persons having an interest

which is or may be adversely affected.

GENERAL DEFINITIONS

Sec. 502. Except as otherwise specifically provided,

when used in this Act:

; (5) The term ‘person’ means an individual.

corporation, partnership. association. State. municipal-

ity, commission. or political subdivision of a State. or

any interstate body.

The foregoing provisions eliminate the need for the Court to

consider jurisdiction over the Subject matter and parties to this

suit. These Provisions require only an allegation that the

Administrator has failed to perform a non-discretionary act to

acquire jurisdiction. That is the allegation in the instant case

with regard to allotment. .

ee i et a ne Aa! No a a i Rain nid v eden ys

WhO I Rare dv aha aR}

eS ee ee al

SE A: EPS Ie,

EE EE

It is noteworthy that for the first time. before this Court, the

Administrator alleges as a defense Respondents’ failure to

comply with the sixty-day statutory time limit in section SOS(b).

It is not appropriate for the Administrator to plead prior igno-

rance of this provision, for it would then be difficult to argue

that Respondents should be held to know what the Administra-

tor did not. Even so, the Administrator could not convincingly

plead ignorance, for in Brown v. Ruckelshaus; the court noted

the temporal defect challenged here. stating that it might be

grounds for dismissal. 364 F. Supp. 258, 265 n.10(C. D. Cal.

1973). Notably, the court in Brown relegated this point to a

footnote and proceeded to heatthe case on its merits. Since

Rrown was decided a month before the Fourth Circuit heard

Respondent's case, the Administrator should have known

about the defense. Thns, by failing to object and pleading the

instant case on the merits, the Administrator waived any pro-

cedural irregularity arising out of the failure to give notice in

exactly the manner prescribed by the statute. Cf. Arp v.

United States, 244 F.2d 571, 574 (10th Cir.), cert. denied, 355

U.S. 826 (1957).

The Administrator has argued that Respondents have access

to the district court only under the provisions of section 505(a)

(2), even though Respondent did not invoke it. Brief for Peti-

tioner at 40-41. However, section SOS(e) spc cifically states

that:

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief includ-

ing relief against the Administrator or a state agency).

(emphasis added).

This language is expressly contrary to the Administrator’ s con-

tention that section 505 is the exclusive method for waiver of

sovereign immunity. Having alleged that the Administrator

has failed to perform a ministerial duty owed to it by the

2 POSSACOR ADL POLE BY

ch ytd, Pr a ee eee catenaiaddneaina

“ 4a 0 gps cid etn aac) AMINE a OA

~ sy

Administrator, Respondent stands on its invocation of juris-

diction under 28 U.S.C, §1331 and § 1361 -- which. according to

section 505 (e), it has the privilege of doing.

It is pertinent that section 304 (i) (2) of the Clean Air Actof

1970, 42 U.S.C. §1857 h-2 (b) (2). is substantially the same as

section 505 (b) (2) of the Water Pollution Control Act in requir-

ing sixty days notice to the Administrator prior to filing suit.

See S. REP. NO. 414, 92d Cong.. Ist Sess. 79(1971). Failure to

comply with the sixty-day limit in the Clean Air Act was the

subject of Riverside v. Ruckelshaus, 4 ERC 1728 (C.D. Cal.

1972). in which the plaintiffs admittedly failed to give the

Administrator sixty days notice before filing the action. How-

ever. the court found “substantial compliance by plaintiffs

within the sixty-day notice provision’™’ because:

1) The plaintiffs filed their complaint on September 6, 1972.

Personal service of the complaint on the Administrator

constituted actual notice of the plaintiffs’ demand for

action by the Administrator. ‘

2) ~~ Sixty days elapsed between the tiling date and the date that

hearing on plaintiffs’ request for injunction was complete

and the court rendered its judgment.

3) During that sixty-day period. the Administrator had all

the beneficial effect of the sixty-day notice Provision. so

that the purposes of the provision were fulfilled.

4) During the sixty-day period in which the action was pend-

ing. the Administrator not only failed to comply with

plaintiffs” request. he reiterated publicly his intention not

to do so. ,

Md. at 1730-31. All of these elements are also present in the

instant case.

Even more to the point is the conclusion of the court in

Riverside that the complaint itself can consitute notice so long

as “diligent prosecution” of the complaint dozs not commence.

until sixty days has elapsed. See 4 ERC at 1731. Che United

States v. Spreckels, 5O F. Supp. 789. 790 (N.D. Cal. 1943).

Another case, Montgomery Environmental Coalition v. Fri,

366 F. Supp. 261 (D. D.C. 1973), which considered the effect of

the sixty-day limitation under section 505 (a) (2), reached a re-

sult comparable to that in Riverside under different facts. The

Vontgomery court was considering an “"amended complaint”

which was, in effect. a supplemental pleading subject to the

sixty-day limit. /d. at 265. The court felt that since the viola-

tions alleged in the supplemental pleading did not create sur-

prise or prejudice the rights of the defendants. nor frustrate

the congressional purpose of the provision -- which was “‘to

give the “State and Federal governments’ sufficient time to

‘develop fully. and execute the authority contained’ in section

1342.°° there was justification for waiving the provisions for

sixty-day notice. Jd. at 266.

It is clear that the purpose of section 505 (a) (2) is to enlarge

citizens” access to the courts to enforce the provisions of the

Act. Its function is not, as one court has stated regarding the

Clean Air Act. a mechanism whereby failure to precisely

comply causes plaintiffs to forfeit their statutory right to be in

district court. Highland Park v. Train, 374 F. Supp. 758, 768

(N.D. Ill. 1974). Where a statute provides judicial review of

an administrative action, it should not be prohibited absent

clear and convincing evidence that such denial was the legisla-

tive intent. Cf. Citv-wide Coalition v. Philadelphia Housing

Auth, 356 F. Supp. 123 (E.D. Penn. 1973).

In Riverside, the plaintiffs had the benefit of the regulations

promulgated by the Administrator in December 1971] regarding

the Clean Air Act. See 40 C.F.R. §54.3 (a) (1972). These regu-

lations specified the elements required for giving notice of

alleged failure of the Administrator to perform a ministerial

act. The requirements are: (1) identification of the provision

of the Act allegedly requiring an act by the Administrator; (2)

description with reasonable specificity of the Act claimed not

done by the Administrator: and (3) name and address of the

person giving notice. As the court found, all of these elements

Danke guage 2 9 SSAA AD as Cong eeu

were included in the Riverside complaint which constituted

compliance with the notice requirements under the regulation.

Significantly, all of these elements were also present in Re-

spondents’ complaints in the instant case.

In the instant case. however. the Respondents had no

benefit of guidelines regarding notice requirements under the

1972 Water Pollution Control Act Amendments. These regula-

tions, 40 C.F.R. §135.3 (b) (1973). were not promulgated

until June 1, 1973, some six months after filing of Respondents’

complaints. See Montgomery Environmental Coalition v. Fri,

366 F. Supp. 261, 266 (1973). Thus, Respondents had no

regulation regarding notice with which to comply. and as the

court in Riverside concluded, it is not unreasonable to consider

the filing of a complaint as notice. This statement seems espe-

cially apt when the requirements for notice are not yet in exist-

ence. Moreover, the complaint complied with all the require-

ments for adquate notice as subsequently defined by the

Administrator. 40 C.F.R. §135.3 (b) (1973). Notably. these

regulations were virtually identical to those promulgated

pursuant to the notice provisions of the Clean Air Act.

Compare 40 C.F.R. §135.3 (b) with id. §54.3 (a).

Petitioner errs in its conception of the application of the

sixty-day time limitation. The Administrator reasons that since

only forty-eight days elapsed from the Administrator's an-

nouncement of abbreviated allotments until filing of Re-

spondent Campaign Clean Water's complaint on January 15,

the statute could not have been complied with. Brief for

Petitioner at 41. First, this conception ignores the possibility of

giving notice under the provision of the Act before the

public announcement. Even more important. however, if the

complaint itself was notice, as stated in Riverside v. Ruckel-

shaus, 4 ERC at 1731, it ignores that the suit was not truly

“commenced” until well beyond the sixty days. in the sense

that it was not argued until more than sixty days after filing the

complaint. Further, the sixty-day notice deadline should not be

applied rigidly when the Administrator can be presumed to

have constructive notice of the omission of which Respondent

has complained.

Section 207 itself requires that allotment occur not later than

thirty days after October 18, 1972. Thus, November 17 was

the statutory deadline. If the Administrator is held to notice

of what the statute says, the failure to allot fully by November

17 was a violation and the Administrator had notice of his

violation under the Act. Thus, filing by Respondent on January

1S, 1973, was just hours short of the required sixty-day delay.

The notice provision is meant to give the Administrator fair

warning of his omission. In the instant case, the Administrator

had not only fair warning of the objection to his action in re-

ducing allotment, he was acutely aware of it. There is no

persuasive reason for the sixty-day requirement when the

Administrator makes clear his intention to behave in a given

way according to his own interpretation of the Act. The ques-

tion then becomes one of law rather than of fact. and no

amount of fact-finding by the Administrator will cure the con-

troversy -- only immediate recourse to the courts. As well,

the Administrator has not alleged that he received no notice

from Respondents. In the absence of promulgated regulations,

it would seem only equitable that any communication from

Respondent would comply, expecially if it contained at least

those elements specified by the Administrator pursuant to the

Clean Air Act. Since the Administrator failed to timely pro-

mulgate regulations defining notice as explicitly required by

section SOS (b) (2). he can hardly be heard to complain if a

» ~~. =, ‘5 ee

Mie TES GRY Dad he Ph Oe,

court’s view of “notice” is not his own.

PP)

I RA RNR I NH et

IV. DETERMINING THE ADMINSTRATOR’S AUTHOR-

IVY TO ALLOT LESS THAN AUTHORIZED A-

MOUNTS IS JUSTICIABLE AND NOT BARRED

FROM REVIEW BY THE POLITICAL QUESTION

DOCTRINE OR THE ADMINISTRATIVE PROCE-

DURE ACT.

A. REVIEW OF THE ADMINISTRATOR'S FAILURE TO

COMPLY WITH THE ALLOTMENT PROVISION OF

THE WATER POLLUTION CONTROL ACT IS JUST-

ICLABLE AND NOT A “POLTEICAL. QUESTION.”

The Administrator has urged that the issue before the Court

in the instant case Is a non-justiclable political question. Brief

for Petitioner at 48, 47-48. Considering the same argument. the

court in National Council of Community Mental Health

Centers, Inc. ve Weinberger, 361 F. Supp. 897. 900 (D. D.C.

1973), stated: “"When Congress directs that money be spent

and the President. as Chief Executive. declines to permit the

spending. the resulting conflict isnot political.” The court con-

tinued: “To say that the Constitution forecloses judicial

scrutiny in these circumstances is to urge that the Executive

alone can decide what is best and what the law requires.”° Jd.

at 900-01. The role of the courts in the American system pre-

cludes an interpretation which would result in unilateral inter-

pretation of laws by the Executive.**

In Baker v. Carr, 369 U.S. 186. 217 (1962). the court enu-

Merated six conditions that would preclude the hearing of a

case under the political question doctrine: (1) a textually de-

monstrable constitutional commitment of the issue to a coords:

nate political department. (2) a lack of judicially discoverable

or manageable standards for resolving the issue. (3) the impos-

sibility of deciding the issue without an initial policy determina-

tion of a Kind clearly for nonjudicial discretion. (4) the IMpPosst-

ee ee

oT Toa:

1a aa

bility of a courts tindertaking independent resolution without

"This emphatically the province and duty of the pdicral department to

say whatthe law is Marbury v. Madison. 8 US. ¢1 Cranch) 137.177 F803)

expressing lack of the respect due coordinate branches of

government, (5) an unusual need for unquestioning adherence

to a political decision already inade. and (6) the potentiality

of embarrassment from multifarious pronouncements by vatri-

ous departments on one question.

The Administrator in the instant case has specifically argued

that the issue before the Court is committed to the “political

departments” and that there are no judicially manageable

standards for resolving it. Brief for Petitioner at 45, 47.

As to commitment to a coordinate branch, it is clear that

the issue before the Court can be determined only by the

judicial branch and is not committed to the other political

departments.’ The issue before the Court is whether the Envi-

ronmental Protection Agency has exceeded its authority in

refusing to allot. The issue is one of statutory interpretation

of the Administrator's discretion under the Act. It is axiomatic

that ““[aJn agency may not finally decide the limits of its statu-

tory power. That ts a judicial function.” See Highway

Comnm’n v. Volpe, 479 F.2d 1099, 1124 (8th Cir. 1973).

Additionally, judicially manageable standards for resolving

the issue sub judice are readily available. The issue is not

“an unstructured managerial issue.’ Brief for Petitioner at 48.

The mandate for full allotment is expressed in the statute.

The interpretation of the statutory duty of an agency is clearly

judicially manageable and is a basic function of the judiciary .*”

Baker v. Carr, 369 U.S. at 211: National Treasury Emplovees Union

Vv. Nixon, 492 F.2d at 605; State Highway Comm'n v. Volpe. 479 F.2d 1099,

1106-07 (8th Cir, 1973): Louisiana v. Weinberger. 369 F. Supp. 856. 862

(E.D. La. 1973); Guadamuz v. Ash. 368 F. Supp. 1233, 1238(D.D.C. 1973):

Brown vy. Ruckelshaus, 364 F. Supp. 258. 261-62 (C.D. Cal 1973): Seafarers

Intl. Unionof N. America v. Weinberger. 363 F. Supp. 1053. 10S9(¢D. D.C.

1973). National Council of Community Mental Health Centers v. Wein-

berger. 361 F. Supp. 897. 900-01 (D.D.C. 1973): Campaign Clean Water.

Inc. v. Ruckelshaus. 361 F. Supp. 689, 696 (E.D. Va.). remanded with

directions sub nom. Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (4th

Cir JOT 3 New York vo Ruckelshaus. 358 Fo Sunn 669 678-76 (1D DC

1973). aff'd sub nom. New York v. Train. 494 F. 2d 1033 (1974): Local 2677.

AFGE v. Phillips, 358 F. Supp. 60. 67-68 (D. D.C. 1973): Massachusetts v.

Weinberger. Civil No. 1308-73 (D.D.C. July 26. 1973). reprinted in 119

CONG. REC. SISO44. STSO4S (daily ed. July 30. 1973).

$9 0 el PRIA ARNIS TES RENE,

The instant case moreover does not require the judiciary to

supervise agency action.’ Only ina totally discretionary stat-

ute imposing no duty upon an administrator would a lack of

manageable standards exist. :

While the political question doctrine may continue to be

raised as a bar to impoundment litigation.’' there is no basis

for non-justiciability. The issue presented in the instant Cause

does not fit into the formulations set forth in Baker v. Carr,

369 U.S. at 217, relied upon by the Administrator. The Court

must merely apply judicial standards of statutory construction

to determine whether the Administrator has the discretion to

refuse to fully allot authorized sums. The resolution of that

issue clearly does not involve a nonjusticiable political ques-

tion.

See National Treasury Employees Union v. Nixon. 492 F.2d at 605:

Campaign Clean Water. Inc. v. Train. 489 F.2d 492. 498-99 (4th Cir. 1973),

cert, granted 948. Ct. 1991 (1974): Seafarers Intl Union of N. America v.

Weinberger. 363 F. Supp. 1053. 1089(.D. D.C. 1973): Pealo v. Farmers Home

Admfmistration, 361 F. Supp. 1320. 1324 (1973): Note. Protecting the Fisc-

Executive Impoundment and Congressional Power, 82 Yate L. J. 1636.

1651 (1972).

“On July 12. 1974. the President signed the Congressional Budget and

Impoundment Control Act of 1974. providing inter alia for impoundment

resolution by the political departments. Pub. |. No. 93-344. 120 CONG. REC

D839 (daily ed. July 18. 1974). The Act may have an effect on future

impoundment litigation and perhaps the future disposition of the case sah

Judice, since the Administrator has alluded to the possible use of obligational

controls in the event of an adverse holding. Brief for Petitioner at 14. [i

Should be recognized that the Act's Procedures for impoundment control

could raise the political question issue in the content of a designation to a

coordinate branch since Congress is granted the authority to override an

impoundment.

Nevertheless impoundment should remain a Justiciable issue. The Act

explicitly does not ratify. or approve “any impoundment heretofore...

executed or approved by the President o1 any other Federal officer or em-

si aati

PERI I

ak i ies

plovees ... 0 HOR. REP. No. TOT. 93d Cong.. 2d Sess. 40. at § 1001 (2)

(1974). Furtherthe Act does not affect “in any way the claims. .ofany party

(contd)

Beene recs nee em operserepcan:

B. THE ADMINISTRATIVE PROCEDURE ACT DOES

NOT BAR REVIEW AS A MATTER COMMITTED TO

AGENCY DISCRETION.

The Administrator contends the APA precludes judicial

review of his refusal to allot since the agency action at issue

isa Matter committed to agency discretion. Brief for Petitioner

at 41-43. The Court in Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971), clarified the provision for preclu-

sion of judicial review expressed in S U.S.C. §701 (a). This

section was characterized as**very narrow” and limited in

application to “those rare instances where ‘statutes are drawn

in such broad terms that in a given case there is no law to

apply. “* 401 U.S. at 410. In determining whether agency

actions were reviewable, the Court in Overton Park looked to

the statute to see if it contained definite standards for the

agency head. The Court found reviewable the statute allowing

the Secretary to approve a project utilizing public parklands

" cont d)

to litigation concerning any impoundment...” /d § 1001 (3). Additionally.

the Actin no way supercedes any mandatory budgetary provisions, id. § 1001

(4). and consequently federal courts clearly continue to have jurisdiction to

enforce such ministerial actions.

Senator Ervin pointed out the import of the Act) on impoundment

litigation on the day of Senate passage:

The Comptroller General will be granted authority to sue in the Fd-

eral [sic] District Court for the District of Columbia to enforce the

provisions of the title... . This authority ts not intended to infringe upon

the right of any other party to initiate litigation... .

A disclaimer section directs that nothing in the impoundment title

Should be construed as ratifying or approving any past or present

impoundment. affecting the claims or defenses of any party to litigation

concerning any impoundment. or asserting or conceding the consttu-

tional powers or limitations of either the Congress or the President.

The disclaimer also disavows any intention by Congress to supercede

any law which requires the mandatory obligation of budger wutinoritty-

Since several such statutes have been enacted in response to the

wholesale impoundment of funds appropriated for specific programs.

120 CONG. REC $11222 (daily ed. June 21. 1974).

net

IE SoS I Be AS HN le TNS ESSERE LIS, NOS ICE Ne Qe EER

Gwe We aipeines duces

only if there was no “feasible and prudent alternative.”* 40]

U.S. at 411. The standards in the Water Pollution Control Act

allotment provision are far more explicit regarding allotment

than the statute in the Overton case. The mandatory nature of

the Water Pollution Control Act needs no further description

here. The duty of the Administrator in allotment was clearly

ministerial. The overall logic. specific language. and legislative

history of the Act admits of no other interpretation than that

allotment is a mandatory duty.

The Administrator alleges that the allotment phase of the

Water Pollution Control Act ‘does not announce any specific

precepts that are to guide the President in determining allott-

ments [sic]. Brief for Petitioner at 43. However. in fact. the

Act announces a very specific standard -- mandatory allot-

ment. There are no detailed standards since allotment is minis-

terial. Detailed standards regarding approval appear at the

obligation phase since that is where discretion is exercised and

explicit standards are necessary.

The Water Pollution Control Act contains an explicit

directive to allot. There is no latitude for what Petitioner

describes as questions of judgement requiring close analysis

and delicate choices. Brief for Petitioner at 42-43. Allotment is

not an act committed to agency discretion. Consequently, the

APA presents no bar to reviewability.

CONCLUSION

The Administrator failed to comply witha statutory require-

ment of the Water Pollution Control Act by failing to allot

six billion dollars authorized by Congress. Plain meaning, leg-

islative history and the Overall structure of the Act demon-

strate the allotment of full sums is mandatory. Moreover, the

issue before the Court is justiciable and not barred by the

~ doctrines of sovereign immunity or political question.

For the reasons stated herein, the Center for Governmental

Responsibility urges this Court to affirm the judgement of the

Court of Appeals for the District of Columbia and reverse

the decision of the Fourth Circuit Court of Appeals.

Respectfully submitted.

FLETCHER N. BALDWIN, JR.

JON L. MILLS

Attorneys for Center for Governmental

Responsibility

Counsel gratefilly acknowledge the research GSSISTANCE pro-

vided in this case by He following tan-stadenty anihne Oniver-

sity of Florida: Albert J. Hadeed, Anne Conway, Jacqueline

Griffin, Edmond T. Henry, III and Janet Studley.

i OCLC P MAE Rie OHTA 9 SEK OOUN BNC ie Bg aN

. . eA Ae ov eee ae

errs ee ee : 69

| APPENDIX

METHOD OF EXPENDITURE IN THE WATER POLLUTION CONTROL ACT

2 ACTION TA'EN Authorization Allotment Wbligation Appropriation

¢ ' LEGEND

y 7 na Actual level of funding

4 Be Proper level of authorized funding

i (before impoundment)

TT | Ceiling of authorized obligation

after mandatory allotment

LEVEL OF BUDGET

\UTHORITY

5 “9° . . . .

: NN Ceiling of authorized obligation

after improper exercise of discre-

tion at allotment

billions of $

LEGISLATION §207 §205 § §203, 204 Art. 1. §9

CONTROLLING “not to exceed Sums authorized Framework of con- U.S. Constitution

(specified amounts]"’ “shall be allotted” tract authority. Pro forma proce-

’ Limitations and dure liquidating

conditions, appropriation.

DISCRETION Congress sets NONE Administrator's NONE

’ AVAILABLE ceiling for rest Sets ceiling for approval or dis- Payment of con-

‘ of process. Ace | | obligation approval or grant $iets-mide ——_—4—-——— -—___ —_____ __-__.. _

_ 7 cords discretion upon conditions

# exercised in re- specified.

2 Maining steps. .

fi REFERENCES TO L _L L J \

“ ; DISCUSSION IN 6-12 6 - 16, 18 - 19, 22 - 32 10 - 12, 14 - 16, 18, 6 n. 2, 24 n. 20

; 4 BRIEF =

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.