479 F.2d 1099 (8th Cir. 1973), 72-1512, State Highway Commission of Missouri v. Volpe

Docket Nº:72-1512.
Citation:479 F.2d 1099
Party Name:The STATE HIGHWAY COMMISSION OF MISSOURI, [1]) Appellee, v. John A. VOLPE, Secretary of Transportation of the United States, and Casper W. Weinberger, Director of the Office of Management and Budget of the United States, Appellants.
Case Date:April 02, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1099

479 F.2d 1099 (8th Cir. 1973)



John A. VOLPE, Secretary of Transportation of the United States, and Casper W. Weinberger, Director of the Office of Management and Budget of the United States, Appellants.

No. 72-1512.

United States Court of Appeals, Eighth Circuit.

April 2, 1973

Submitted Jan. 10, 1973.

Rehearing and Rehearing En Banc Denied May 18, 1973.

Page 1100

[Copyrighted Material Omitted]

Page 1101

[Copyrighted Material Omitted]

Page 1102

[Copyrighted Material Omitted]

Page 1103

William Appler, Atty., Dept. of Justice, Washington, D. C., for appellants.

Robert Hyder, Jefferson City, Mo., for appellee.

Alan B. Morrison, Washington, D. C., for amicus (Senator Ervin).

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

The legal issue before us is whether the Secretary of Transportation may defer authority to obligate highway funds previously apportioned to the State of Missouri under the Federal-Aid Highway Act of 1956 2 when the reasons given for the deferment by the Secretary and the Director of the Budget are the status of the economy and the need to control inflationary pressures. It is conceded that the balance of more than five billion dollars in the highway trust fund is adequate to meet all current requirements and that Missouri is qualified in every respect for its apportionment. 3

Page 1104

On June 30, 1971, the State of Missouri filed an amended complaint against the Secretary and the Director of the Office of Management and Budget. The complaint alleged that the Secretary had apportioned 115.7 million dollars in highway funds to Missouri in fiscal 1972, but that he imposed contract controls on (impounded) 21.9 million dollars of that sum. Missouri also complained that funds had been impounded in fiscal 1971 for the same reasons. 4

The district court, 347 F.Supp. 950, held that the contract controls were beyond the authority conferred on the Secretary by the Federal-Aid Highway Act. It enjoined further withholdings for Missouri for fiscal year 1973; issued a writ of mandamus ordering that the Secretary revoke any contract controls prohibiting Missouri from obligating its full apportionment for fiscal 1973; and entered a judgment declaring that it was not within the discretion of the Secretary to withhold or to defer obligation of highway funds previously apportioned to the State of Missouri for the reasons advanced by the Secretary.

We hold that the action for mandamus was mooted by the Secretary's removal of the contract controls during the pendency of the action 5 but that the court properly granted plaintiff's declaratory judgment.

On appeal, the Secretary argues: (1) that there is no subject matter jurisdiction, (2) that there is no justiciable issue since the case involves only a political question, and (3) that the Secretary possesses discretion under the statute to withhold funds for the stated reasons.


Missouri alleged and the district court so held that it had jurisdiction by virtue of the mandamus statute, 28 U.S.C. § 1361, and by Section 10 of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

The Secretary urges that mandamus is not a proper basis for jurisdiction since the Highway Act is non-mandatory in nature and that mandamus is only applicable where the duty owed is specific, unequivocal and plainly prescribed. 6 The Secretary further contends

Page 1105

that the Administrative Procedure Act is not an independent source of jurisdiction 7 but is only applicable when other grounds of statutory jurisdiction exist. Regardless of these contentions we find an ample jurisdictional basis for adjudication under 28 U.S.C. § 1331(a).

Although § 1331(a) was not specifically pleaded in the complaint, a review of the entire complaint demonstrates that a federal question exists. The plaintiffs sought a judicial construction of the Federal-Aid Highway Act and the amount in controversy obviously exceeded $10,000. In Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 (1967), the plaintiff alleged jurisdiction under 35 U.S.C. § 145. The district court dismissed for lack of subject matter jurisdiction. However, on appeal, the appellate court found that jurisdiction existed under 5 U.S.C. § 704. The court stated:

"The District Court's jurisdiction was established by the allegations of operative facts bringing the controversy within the scope of the statute conferring jurisdiction on the court. The court's jurisdiction was neither dependent upon nor removable by any reference to or recitation of a statute in the allegations." 379 F.2d at 136.

Moreover, since the complaint clearly establishes that federal question jurisdiction did exist, there is no need for this court to remand in order to amend the pleadings to specifically allege 1331(a) as a basis of jurisdiction. See Norton v. Larney, 266 U.S. 511, 516, 45 S.Ct. 145, 69 L.Ed. 413 (1925). We can assume that the complaint has been amended to conform to this fact and proceed to review the district court's judgment on the merits. See also National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421, 423 (8 Cir. 1960); Parker v. Gordon, 178 F.2d 888, 890 n. 2 (1 Cir. 1949) .

Page 1106


In view of our finding as to mootness under the mandamus action, we raise the question of whether the declaratory judgment is likewise moot for purposes of this appeal. We decide it is not. It is recognized that "[w]here one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy." Powell v. McCormack, 395 U.S. 486, 497, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). Moreover, a court may grant a declaratory judgment even though it declines to issue an injunction or writ of mandamus. Id. at 499, 89 S.Ct. at 1952. An action for declaratory relief satisfies the requirements of a "case or controversy" when it would have significant consequences in determining the extent of any "further relief" deemed necessary if the illegal conduct should be expected to resume in the future. Gautreaux v. Romney, 448 F.2d 731, 736 (7 Cir. 1971).

It is generally held that the voluntary cessation of allegedly illegal conduct does not make a case moot if there is a "reasonable expectation" that the wrong will be repeated. United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). See also United States v. Concentrated Phosphate Export Ass'n., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). However, when the actions questioned are those of the government, the mere probability of recurrence must be coupled with a certainty that the impact will fall on the same objecting litigants. Committee to Free the Fort Dix 38 v. Collins, 429 F.2d 807, 812 (3 Cir. 1970); see generally Mootness on Appeal in the Supreme Court, 83 Harv.L. Rev. 1672 (1970). In the instant case, it is conceded by the Secretary that further contract controls will be imposed and that Missouri will most certainly be affected. We therefore find sufficient basis to justify appellate review of the district court's declaratory judgment.

The Secretary asserts the lack of justiciability on the ground that the case presents political questions not appropriate for judicial resolution. Counsel suggests that what is involved is the "[e]xecutive's power to control the rate of expenditure of funds" and that this is a political question. We disagree. The only issue before the district court and this court is the question of statutory construction, i. e., whether the Secretary of Transportation, pursuant to his delegated duties under the Federal-Aid Highway Act, can withhold from the State of Missouri, for the reasons he stated, the authority to obligate funds duly apportioned to the state under the Act. Surely such a determination is within the competence of the courts. Cf. Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

As was recently observed, "[i]n our overall pattern of government the judicial branch has the function of requiring the executive (or administrative) branch to stay within the limits prescribed by the legislative branch." National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 443 F.2d 689, 695 (1971). Resolution of the issue before us does not involve analysis of the Executive's constitutional powers. Nothing in the present record demonstrates that the Secretary of Transportation will continue to exercise controls beyond that which judicial construction finds permissible within the statute. To the contrary, at oral argument counsel for the government stated, "I suppose our brief comes as close as it can to conceding that were Congress to make this mandatory, that would be the end of the case. . . . I would say almost certainly that without tending to give away what the White House might decide in any particular statute, that where it is mandated clearly, the Executive would have to spend that money or would spend the money." The issue before us is not whether the Secretary abused his discretion in imposing contract

Page 1107

controls but whether the Secretary has been delegated any discretion to so act in the first place. Cf. Constructores Civiles de Centroamerica, S.A. v. Hannah, 148 U.S.App.D.C. 159, 459 F.2d 1183, 1192 (1972). It is difficult to frame the Article III duty of the judicial branch of government under these circumstances in any more meaningful terms than did Mr. Justice Reed in Stark v. Wickard, 321 U.S. 288, 309-310, 64 S.Ct. 559, 88 L.Ed. 733 (1944):

"When Congress passes an Act empowering administrative agencies to carry on governmental activities...

To continue reading