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December 11, 1973

Caspar W. WEINBERGER et al.

Aubrey E. Robinson, Jr., District Judge.

The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, Jr., District Judge.

This is an "impoundment" case brought by five states *fn1" and their chief educational officers. It is presently before the Court on cross-motions for summary judgment. Plaintiffs seek to compel the Executive Branch of the Federal Government to apportion, obligate and disburse *fn2" to the states their share of approximately $20 *fn3" million in funds appropriated by Congress for the operation of state educational programs under Title V of the Elementary and Secondary Education Act of 1965. *fn4" Plaintiff Commonwealth of Pennsylvania also seeks to denominate the case as a class action on behalf of all other states not named Plaintiffs herein, and on behalf of the District of Columbia.

 Defendants have interposed what has now become a standard litany of defenses: no justiciable case or controversy, sovereign immunity, unconsented suit for money damages, executive discretion, historical precedent and statutory authority for impoundment. While the Court has fully reviewed these arguments, it has concluded that they are without merit and do not warrant further discussion. *fn5" The primary legal issues here are 1) whether Congress has mandated that the appropriated funds be apportioned and disbursed under the statute and 2) if so, whether the expiration of the 1973 Fiscal Year on June 30, 1973, effected a reversion of the appropriated funds to the Treasury such that they are no longer available to the Defendants and relief herein is thereby barred.


 Title V of the Elementary and Secondary Education Act of 1965 established a program of federal grants to strengthen state departments of education. Part A of Title V *fn6" provides grants, inter alia, for statewide educational planning, collection and dissemination of educational data, support of special studies, publications, and experimental and research programs. *fn7" Part C of Title V *fn8" provides grants for comprehensive educational planning and evaluation on the state and local level.

 The financing mechanism for Title V programs begins with Congressional appropriation of funds. From the amount appropriated, the statute requires *fn9" that the Commissioner of Education " shall apportion " the appropriated funds among the states and territories according to a prescribed formula. *fn10" Upon apportioning the appropriated funds the Commissioner notifies the states of the amounts available to them. On the basis of this notification the states prepare formal applications for grant awards. Upon approval of the formal applications the Commissioner issues grant awards, the formal documents obligating the funds to the States. *fn11" Thereafter the states draw these funds by means of vouchers which ultimately reach the Treasury Department and are recorded there as disbursements on the proper accounts.

 Thus the act of apportioning the appropriated funds among the states is only the first step in the disbursement process, a step which does not involve the actual expenditure of funds. *fn12" In practice, however, the states generally apply for, and the Commissioner generally awards, the entire amount apportioned. Awards by the Commissioner are subject to the states having "approved programs" for expenditure of the funds. Defendants have not contended that any plaintiff state does not have an approved program. *fn13"

 Appropriations for Title V of the Elementary and Secondary Education Act for the 1973 Fiscal Year (FY 1973) were made by Public Law 92-334, a joint resolution of the Congress signed by the President. This was a "continuing resolution" providing funding for ongoing programs pending enactment of a formal Appropriation Act. Public Law 92-334 provided that where both houses of Congress had approved continued funding of a program, but at different levels, funding would be at the lower of the two levels approved by either house of Congress. *fn14" The Senate version of the Labor-HEW Appropriation Act of 1973 *fn15" had approved $55 million for Parts A and C of Title V. The House version of the same Act *fn16" had approved $43 million for Part A and $10 million for Parts C of Title V. Accordingly, under the continuing resolution the amount actually appropriated was the lesser of the House or Senate versions, in this instance $43 million for Part A and $10 million for Part C. *fn17" Defendants do not dispute that these are the amounts actually appropriated. *fn18"

 Statutory language that an official "shall" perform an act has been repeatedly held to be mandatory in nature. *fn19" It deprives the official of discretion and makes the commanded act a duty, a ministerial act. The legislative history of the provision here involved makes clear its mandatory nature. *fn20" Thus, the Commissioner of Education was required by statute to apportion to the states the full amount of appropriated funds for Parts A and C of Title V.

 It is not readily ascertainable, however, whether the statute mandates the Commissioner to approve all applications and actually disburse all apportioned funds. The statutory language with regard to these steps is not the mandatory "shall", but discretionary language that the Commissioner "may", and "is authorized to" make grant awards. *fn21" Yet this Court would find it implicit in the statutory scheme, absent express indications to the contrary, that in providing the Commissioner with some discretion as to grant awards the Congress did not intend to allow him the opportunity to completely suspend or severely limit, for reasons unrelated to the program, the operations of an ongoing program reviewed, approved and fully funded by the Congress with Presidential approval. *fn22" Such an approach would place administrative fiat above the law.

 It is not necessary to rely on implication, however, for Congress has made clear its intent to require full funding of education programs. Section 415 of the General Education Provisions Act, *fn23" 20 U.S.C. ยง 1226, contains the controlling language which has now been repeatedly held *fn24" to express Congressional intent to mandate full funding of ongoing programs:

Notwithstanding any other provision of law, unless expressly in limitation of the provisions of this chapter, funds appropriated for any fiscal year to carry out any of the programs to which this chapter is applicable shall remain available for obligation and expenditure until the end of such fiscal year.

  This provision is not on its face an unambiguous command to spend, thus the Court must look to Congressional intent in order to clarify its meaning. This section was added in 1968 *fn25" without extended discussion at the tine as to its meaning or intended effect. *fn26" The two instances where the provision was discussed, however, indicate clearly that it was intended to deny to the Administration any statutory authority to refuse to spend appropriated education funds. *fn27" This meaning was more expressly declared in 1970 when the section was amended to apply to expenditure as well as obligation of funds. The Senate Report forthrightly expressed the intent of the amendment and the original section:

The Committee . . . agrees that section [415] is permanent legislation exempting all appropriations to the Office of Education from statutory controls other than those specified in the authorizing legislation and in appropriations acts. . . . ...

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