Brown v. Ruckelshaus

• Decision Date: 07 September 1973
• Docket Number: 73-736-AAH.,No. 73-154-AAH,73-154-AAH
• Court: U.S. District Court — Central District of California
• Parties: George E. BROWN, Jr., Plaintiff, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Defendant. CITY OF LOS ANGELES, Plaintiff, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Defendant.

364 F. Supp. 258

George E. BROWN, Jr., Plaintiff, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Defendant.

CITY OF LOS ANGELES, Plaintiff, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Defendant.

Nos. 73-154-AAH, 73-736-AAH.

United States District Court, C. D. California.

September 7, 1973.

Terrence Goggin, and Thorpe, Sullivan, Clinnin & Workman, Los Angeles, Cal., for plaintiff George E. Brown, Jr.

Frank Wagner, Deputy City Atty., for plaintiff City of Los Angeles.

James R. Dooley, Asst. U. S. Atty., and Harlington Wood, Jr., Deputy Atty. Gen., for defendant William D. Ruckelshaus.

OPINION AND ORDER DENYING PLAINTIFF GEORGE E. BROWN JR.'S AND CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT WILLIAM D. RUCKELSHAUS' MOTION TO DISMISS

HAUK, District Judge.

These two matters, arising upon virtually the same factual allegations and determinable by the same legal and judicial considerations, were argued and are now being decided as consolidated cases.

On January 26, 1973, Congressman George E. Brown, Jr. filed a complaint on behalf of himself and all other California citizens and residents against William D. Ruckelshaus, the former Administrator of the United States Environmental Protection Agency, in connection with the allotment procedure of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500 (Oct. 18, 1972) 86 Stat. 816 hereinafter cited as the Act. The City of Los Angeles followed suit on April 4, 1973, against the same defendant.

These actions are part of a series of substantially similar lawsuits that have been filed against the EPA across the United States.¹ In turn this collection is one corner of the well-known Presidential impoundment issue in which over $13 billion are presently frozen.²

The facts are not in dispute. Congress passed the Water Pollution Control Act Amendments on October 4, 1972. They authorize appropriations totalling $11 billion for waste treatment plant construction grants for fiscal years 1973 and 1974. President Richard Nixon vetoed the bill, S. 2770, thirteen days later.³ His veto message indicated that the measure was inflationary because "the pressure for full funding under this bill would be so intense that funds approaching the maximum authorized amount could ultimately be claimed and paid out no matter what technical controls the bill appears to grant the Executive."⁴

Congress promptly overrode the veto.⁵ Then on November 28, 1972, Mr. Ruckelshaus announced that in line with the President's instructions, he would allot only $5 billion of the authorized $11 billion for treatment plant construction projects for fiscal years 1973 and 1974. Those reduced allotments in fact were promulgated on December 4.⁶ This final action by the EPA is what has been labelled as Presidential impoundment and what the plaintiffs are challenging in these suits.

The procedural history of these actions is as follows: The EPA, through the United States attorney, filed motions to dismiss in both cases; George Brown Jr. and the City of Los Angeles then filed motions for summary judgment. A hearing occurred on July 16, 1973.

The issues are, seriatim, 1) whether sovereign immunity bars the actions, 2) whether the cases present a justiciable controversy, 3) whether the plaintiffs have standing to maintain their suits, and finally 4) whether the plaintiffs are entitled to relief on the merits.

SOVEREIGN IMMUNITY

The Defendant asserts that the United States, as sovereign, is immune from suit unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. King, 395 U.S. 1, 89 S. Ct. 1501, 23 L.Ed.2d 52 (1969). Moreover, a suit nominally against a government officer may, in reality, be a suit against the United States if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration." Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). More recently, the Supreme Court said that sovereign immunity also attaches if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Hawaii v. Gordon, 373 U.S. 57, 58, 82 S.Ct. 1052, 10 L.Ed. 2d 191 (1963).

The short answer to this problem is that while these two cases meet this definition, they also fall within a well-settled exception to the doctrine, found in Dugan v. Rank, supra. There the Court indicated that a suit may be brought against a United States officer to challenge an action which allegedly exceeds statutory authority or, if within the scope of authority, is premised upon a power which is unconstitutional. See also Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962). Both complaints allege that the EPA has exceeded its statutory authority in impounding the authorized funds. If sustained on the merits, Congressman Brown and Los Angeles would fall within the exception we note here. Campaign Clean Water v. Ruckelshaus, 361 F.Supp. 689 (E.D.Va.1973); City of New York v. Ruckelshaus, 358 F.Supp. 669 (D.C.D.C.1973). Moreover, the general rule enumerated in Land v. Dollar, supra, does not help the Defendant. That case bars suits where the judgment would expend itself on the public treasury or domain or interfere with the public administration. Here the suit is in reality brought against the sovereign, requesting relief that does not require the expenditure of any unappropriated funds. They only ask for the allotment of the funds, and the EPA retains the discretion not to incur any obligation to expend them. There is no interference with the lawful exercise of Defendant's discretionary powers under the Act. City of New York v. Ruckelshaus, supra.

CASE OR CONTROVERSY

A. Political Question

Little exists to convince the Court that this issue is a political question that we should avoid. Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); City of New York v. Ruckelshaus, supra; Campaign Clean Water v. Ruckelshaus, supra. The Plaintiffs only are asking us to interpret a statute, to determine whether the specific Act in question mandates spending policies in contravention to those announced by the Administrator of the EPA. The Supreme Court has clarified the standard by which a political question may be identified:

"Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Id., at 217, 82 S.Ct. at 710.

Yet Justice Brennan made it clear that he was talking about political questions, not political cases. "The courts cannot reject as `no law suit' a bona fide controversy as to whether some action denominated `political' exceeds constitutional authority." Id. Our task here is exactly what the judiciary is supposed to do: interpret the law. There is no issue involving "executive power"; nor is the Court being asked to supervise the operations of the EPA, which concededly would muddle any judicially discoverable and manageable standards for resolving the issue.

"In short the courts must decide whether the Constitution or a particular statute empowers the Executive to impound appropriated funds. This is precisely the sort of determination that the Supreme Court made in Kendall v. United States, 12 Pet. 524, 37 U.S. 524, 9 L.Ed. 1181 (1838) and in Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901 (1934). When the language of an appropriation is not itself dispositive of the issue, the court may examine the effect of impounding on the purpose that Congress sought to achieve. When the executive's action clearly thwarts the congressional purpose, the Constitution provides a clear basis for resolving the controversy." Presidential Impounding of Funds: The Judicial Response, 40 U. Chi.L.Rev. 328, 346 (1973). The Water Pollution Act in question here is not necessarily dispositive on its face, and it is our job to help interpret it.

B. Is the action premature?

An elementary judicial principle is that the courts may not adjudicate cases that are hypothetical or premature. Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L.Ed.2d 113 (1969). Defendant urges us to conclude that since nothing actually has happened yet to either Plaintiff, there is no controversy. This is bad logic. The Act's legislative history shows that the financial scheme was adopted to facilitate long-range planning, a necessary element in developing water treatment plants. 118 Cong.Rec. H. 2727 (March 29, 1972); City of New York v. Ruckelshaus, supra. "Because funds are allotted on a yearly basis, it appears that those funds not allotted in the appropriate year are forever lost." Campaign Clean Water v. Ruckelshaus, supra. "However, funds allotted for a given year but not obligated may be reallotted the following fiscal year. Section 205(b)(1)." Id., n. 1. As Judge Miles Lord said in Minnesota v. Fri (D.Minn.1973), ". . . the issues are ripe, pressing and hotly in dispute. Only those funds that are allotted in a fiscal year are available to be obligated for projects in the State. In this instance, over $60 million may be lost forever to Minnesota...