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LOUISIANA EX REL. GUSTE v. BRINEGAR

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,
v.
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).

 I

 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. ...


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