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February 12, 1975

STATE OF LOUISIANA, ex rel., WILLIAM J. GUSTE, JR., Attorney General and LOUISIANA DEPARTMENT OF HIGHWAYS and STATE OF NEVADA and STATE OF OKLAHOMA Department of Justice and COMMONWEALTH OF PENNSYLVANIA Department of Justice and JACOB G. KASSAB, Secretary Pennsylvania Department of Transportation and THE STATE OF TEXAS and B. L. DeBERRY Texas State Highway Engineer Texas Highway Department and STATE OF WASHINGTON, ex rel., GEORGE ANDREWS, Director of Highways Plaintiffs and STATE OF ALASKA and STATE OF IDAHO and STATE OF WISCONSIN State Highway Commission and STATE OF ARIZONA and STATE OF UTAH and STATE OF MICHIGAN FRANK J. KELLEY, Attorney General and JOHN P. WOODFORD, Director of Department of State Highways and Transportation Intervenor-Plaintiffs,
CLAUDE S. BRINEGAR Secretary of Transportation and NORBERT T. TIEMANN Federal Highway Administrator and ROY L. ASH Director Office of Management and Budget Defendants

The opinion of the court was delivered by: SMITH


 SMITH, District Judge.

 This action is before the Court on plaintiffs' Motion for Summary Judgment, and defendants' Motion to Dismiss or, in the alternative, for Summary Judgment. The matter at issue has been tested recently before eight federal district courts and one circuit court of appeals, and can be stated simply: Can the Government impose "contract controls" or its own schedule of obligation upon funds duly authorized under the Federal-Aid Highway Act of 1956 (Act)? Each of these courts has decided this question in the negative and enjoined the Government from withholding such funds. *fn1" This Court does likewise.

 Originally, this case was begun as a class action by six States seeking declaratory and injunctive relief from the actions of the defendants in withholding Highway Trust Fund monies needed for highway construction purposes. The Court subsequently denied plaintiffs' motion for certification as a class action, but did not allow six additional States to intervene in the case. *fn2"

 Plaintiffs alleged in their complaint that defendant had refused to distribute to them some $2.7 billion in highway funds authorized for fiscal years previous to and including 1974. As of November 30, 1974, by plaintiffs' calculations, the amount unreleased was $616 million, a figure which does not include approximately $1.5 billion in funds authorized for fiscal year 1976. Defendants admit that not all the 1975, fund have been made available for obligation (Provan Affidavit, Nov. 15, 1974), but they state that plaintiffs will eventually receive these and any other funds that are being withheld. *fn3"

 The sums of money at issue are destined for the Federal-aid highway program, and specifically the Interstate Highway System. The appropriations process is somewhat complex and involves five separate stages: 1) authorization of funds by Congress, presently specified through 1979 (section 108(b) of the Act, codified at 23 U.S.C. § 101 nt. (1970)); 2) apportionment of authorized funds to the States by the Secretary of Transportation (Secretary) according to a statutory formula (23 U.S.C. § 104(a)-(b)); 3) submission of programs by States to the Secretary for his approval (23 U.S.C. § 105); 4) submission of specific project plans by the States, the approval of which constitutes a federal contractual obligation (23 U.S.C. § 106); and 5) appropriations to reimburse States for construction costs on a project (23 U.S.C. § 121).

 Defendants contend that after apportionment, the second step in the appropriations process, their responsibilities are discretionary, and that they are at liberty to delay the release of funds -- in this case, as a means of curbing inflation. *fn4" They concede, though, that there is no intention of permanently impounding funds, but only of attempting to control the rate of obligation of Federal-aid highway monies.

 Plaintiffs assert that once apportionments are made to the States, there is narrowly limited discretion in the Secretary to review and approve projects. Statutory criteria are specified, and inflation control is not one of the factors that the Secretary is to take into account in releasing authorized funds. Further, plaintiffs rely upon a section of the Act which purports to prohibit any impoundment or withholding of funds from obligation. 23 U.S.C. § 101(c).


 As in most impoundment cases, defendants in this action have raised several threshold barriers to plaintiffs' bringing suit. They invoke doctrines of lack of subject matter jurisdiction, lack of case or controversy, non-reviewability of political questions, failure to state a claim, and sovereign immunity. Normally these are questions requiring careful analysis and determination by a court. Here, however, the identical issues have been raised and resolved in numerous impoundment cases, and summary discussion is sufficient.

 There is federal question jurisdiction in this action since the case arises under the Constitution and laws of the United States, and involves over $10,000 in controversy, 28 U.S.C. § 1331(a). See State Highway Comm'n of Missouri v. Volpe, supra, 479 F.2d at 1105; South Carolina State Highway Dep't v. Volpe, supra note 1, slip op. at 6.

 The present case revolves around statutory construction and the interpretation of administrative discretion -- certainly matters that are historically viewed as capable of resolution through the judicial process. Flast v. Cohen, 392 U.S. 83, 94-95, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); Stark v. Wickard, 321 U.S. 288, 309-10, 88 L. Ed. 733, 64 S. Ct. 559 (1944).

 While the relationship between the legislative and executive branches of Government may well be affected by this action, the dispute can readily be settled by the exercise of judicial power, and therefore is not a non-justiciable political question. Powell v. McCormack, 395 U.S. 486, 518-19, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); National Council of Community Mental Health Centers, Inc. v. Weinberger, 361 F. Supp. 897, 900 (D.D.C. 1973).

 Lastly, since the suit challenges actions of United States officials that allegedly are in excess of statutory authority or unconstitutional, it is within a recognized exception to the doctrine of sovereign immunity. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949); City of New York v. Ruckelshaus, 358 F. Supp. 669, 673 (D.D.C. 1973), aff'd, 161 U.S. App. D.C. 114, 494 F.2d 1033 (D.C. Cir.), aff'd, Train v. New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975).


 Defendants on the merits raise three justifications for their withholding of funds authorized to States for interstate highway construction: 1) the Act does not contain mandatory spending requirements; 2) the anti-impoundment provision in the Act is merely a precatory sense of the Congress resolution; and 3) the President has broad, inherent constitutional powers which enable him to control federal spending. The Court finds that none of these arguments justifies defendants' refusal to release funds in this case.

 It may be true that the Secretary's approval of projects is required before States gain a "vested interest" in funds, and that there is no contractual obligation on the part of the United States before such approval. 23 U.S.C. 106(a). Still, as the court in the Missouri case noted, "[This] [hardly] provides a basis for finding that the Secretary has lawful discretion to withhold his approval of projects for reasons not contemplated within the Act." 479 F.2d at 1109-10 (emphasis in original).

 On the contrary, section 106(a) of the Act specifically refers to the criteria of section 109 as guides for the Secretary in granting or withholding project approval. These criteria require that a proposed highway facility "adequately meet the existing and the future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance." 23 U.S.C. § 109(a)(1). In addition, possible adverse economic, social, and environmental effects of proposed projects are to be considered. 23 U.S.C. § 109(h).

 These statutory standards thus set the limits on the Secretary's discretion in regard to review of State projects. Nowhere in the Act or in its legislative history is there mention of weighing national problems of inflation before approving projects and allocating authorized sums to the States. Accordingly, the Secretary's discretion is restricted by the Act itself, and only the section 109, standard are appropriate reasons for withholding or delaying the obligation of funds. *fn5"

 In finding that the Act does not allow the Secretary to withhold funds for reasons unrelated to the merits of a project itself, the Court has analyzed the Act's language in its entirety and found the Secretary's broad claim of discretion to be unsupported. Commonwealth of Pennsylvania v. Lynn, 163 U.S. App. D.C. 288, 501 F.2d 848, 854 (D.C. Cir. 1974). This conclusion is confirmed by other sections in the Act which reiterate the mandatory duty imposed upon the Secretary, *fn6" as well as by those sections which evidence the Congressional intent of prompt construction of the Interstate Highway System. *fn7" Such an objective of early completion is at odds with a claim of discretion to withhold funds for a period of months or even years.

 Nor can defendants rely on the Anti-Deficiency Act for authority to delay the obligation of funds in this case. 31 U.S.C. § 665. The original Anti-Deficiency Act permitted the establishment of reserves only where an Act's objectives could be accomplished by the expenditure of an amount smaller than appropriated, but the Act was not a blank check to nullify Congressional intent or to reserve funds for non-program related reasons. *fn8" Moreover, in recent legislation the Anti-Deficiency Act has been clarified to explicitly reflect this original, limited purpose in allowing the establishment of reserves. *fn9"

 Defendants also contend that section 101(c) of the Act is in the nature of a sense of the Congress resolution and that the provision's anti-impoundment language is not binding. *fn10" This contention is without merit since the Court has already determined that the Secretary lacks the discretionary power to delay or withhold funds for non-program related, anti-inflationary reasons. Further restrictions on impoundment are unnecessary in view of this holding.

 However, section 101(c) does support the Court's construction of the Act. As noted in the Missouri case, the clear intent of Congress in enacting the measure was to emphasize that funds apportioned under the Act should not be impounded or withheld from obligation. *fn11" Even if the provision is precatory, it contains Congress' interpretation of "existing law," which is entitled to great weight in statutory construction. Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 380-81, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969). And in the most recent Congressional consideration of the Federal-Aid Highway Act, the House-Senate Conference Committee, while rejecting a Senate measure strengthening section 101(c), stated, "The fact that this section of the Senate bill is not contained in the conference substitute shall not be construed to indicate anything other than complete agreement with the decision of the United States Court of Appeals for the Eighth Circuit" in the Missouri case. *fn12"

 Defendants' final argument, that the President's express or implied constitutional powers justify holding back authorized funds, has been rejected by numerous courts in impoundment cases. *fn13" The President's veto power under Article I, section 7 of the Constitution certainly could have been utilized to prohibit the authorization of expenditures for the Interstate Highway System if such expenditures were deemed excessive or inflationary. For whatever reason, that course was not taken here.

 As for implied powers, the vesting of "[the] executive Power" in the President *fn14" and the requirement to "take Care that the Laws be faithfully executed" *fn15" are hardly grants of legislative power. Upholding a construction of the Constitution which would authorize the President to refuse to fund or to delay indefinitely the funding of Congressionally approved programs "would be clothing the president with a power entirely to control the legislation of congress and paralyze the administration of justice. To contend that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution and entirely impermissible." Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613, 9 L. Ed. 1181 (1838). Mr. Justice Black has expressed the same bedrock principles more recently in the Steel Seizure Case, the leading case on Executive-Congressional division of power: ". . . The Constitution does not subject [the] lawmaking power of Congress to presidential . . . supervision or control. . . . The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89, 96 L. Ed. 1153, 72 S. Ct. 863 (1952).

 It may be, as defendants contend, that the Executive is uniquely suited to render timely, swift, and integrated fiscal and economic decisions -- in contrast to the cumbersome committee, hearing, and floor debate process through which Congress works its will. However, "[Nowhere] does our Constitution extol the virtue of efficiency and nowhere does it command that all our laws be fiscally wise." Guadamuz v. Ash, 368 F. Supp. 1233, 1243 (D.D.C. 1973). Moreover, partly in response to this perceived problem of lack of coordination and consistency in Congressional appropriations, Congress recently passed an Act establishing a comprehensive Budget Committee and revamping the legislative budget process. *fn16" Even in this measure, though, it was emphasized that Congress, not the President, retains the constitutional role of guardian of the Treasury. *fn17"


 In view of the foregoing, the Court finds that the Federal-Aid Highway Act does not authorize discretionary action for non-program related reasons (e.g., fiscal policy) by the Secretary in withholding funds that have been apportioned to plaintiff States. The defendants' Motion to Dismiss or, in the alternative, for Summary Judgment is denied. Plaintiffs' Motion for Summary Judgment is granted.

 Plaintiffs are entitled to a declaratory judgment that the imposition of contract controls by defendants upon funds authorized and apportioned for the Interstate Highway System is unlawful and invalid under the Federal-Aid Highway Act. Defendants are hereby enjoined to release such apportioned funds as are presently non-obligated, and not to withhold such funds in the future.

 In view of the fluctuating amounts of money being released or withheld under the Act, and in view of the possible conflicts as to how much of the pre-fiscal year 1976 funds (i.e., those sums authorized and apportioned for fiscal years 1975 and for all previous years) have been withheld, the matter is referred to the Federal Highway Administrator for a determination of the amount owing to each plaintiff State and for the allotment to each plaintiff State of the monies that are due. The Administrator shall submit a report to the Court within sixty days relative to his determination of sums owed to each plaintiff State and his actions taken in implementation of this Order. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp.]

 John Lewis Smith, Jr. / United States District Judge


 Upon consideration of plaintiffs' Motion for Summary Judgment, defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, the memoranda of points and authorities in support thereof and in opposition thereto, the affidavits submitted on behalf of plaintiffs and defendant oral argument of counsel having been heard, and for reasons set forth in the attached Memorandum Opinion, it is by the Court this 12th day of February 1975

 ORDERED that plaintiffs' Motion for Summary Judgment be and it hereby is granted; and defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment be and it hereby is denied; and it is further

 ORDERED that plaintiffs are entitled to a declaratory judgment that the imposition of contract controls by defendants upon funds authorized and apportioned for the Interstate Highway System is unlawful and invalid under the Federal-Aid Highway Act; and it is further

 ORDERED that defendants are hereby enjoined to release such apportioned funds as are presently non-obligated, and are enjoined not to withhold such funds in the future; and it is further

 ORDERED that the matter is referred to the Federal Highway Administator for a determination of how much is owing to each plaintiff State and for the allotment to each plaintiff State of the amount that is due; and it is further

 ORDERED that the Administrator shall submit a report to the Court within sixty days concerning his determination of sums owed to each plaintiff State and his actions in implementing this Order.

 JOHN LEWIS SMITH JR / United States District Judge

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