State Highway Commission of Missouri v. Volpe, Civ. A. No. 1616.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: WILLIAM H. BECKER
• Citation: 347 F. Supp. 950
• Parties: The STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff, 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, Defendants.
• Docket Number: Civ. A. No. 1616.
• Decision Date: 07 August 1972

347 F. Supp. 950

The STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff,
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, Defendants.

Civ. A. No. 1616.

United States District Court, W. D. Missouri, C. D.

August 7, 1972.

347 F. Supp. 951

Robert L. Hyder, Michael K. McCabe, Jefferson City, Mo., for plaintiff.

Stuart E. Schiffer, Civil Div., U. S. Dept. of Justice, Washington, D. C., Kenneth Cranston, Regional Counsel, Federal Highway Administration, Kansas City, Mo., for defendants.

FORMAL JUDGMENT CONFIRMING JUDGMENT FOR PLAINTIFF ORALLY RENDERED AND ENTERED JUNE 19, 1972, ISSUING WRIT OF MANDAMUS, INJUNCTION AND FOR DECLARATORY JUDGMENT

WILLIAM H. BECKER, Chief Judge.

Now on this 19th day of June 1972, this civil action was called for trial on the amended complaint pursuant to notice and order setting the action for trial. The plaintiff appeared by its counsel, Robert L. Hyder, Esquire, and Michael McCabe, Esquire. The defendants appeared by their counsel, Stuart E. Schiffer, Esquire, and Kenneth Cranston, Esquire.

Counsel for the defendants suggested the succession of Casper W. Weinberger to the original defendant George Shultz as Director of the Office of Management and Budget of the United States. Thereupon on motion of counsel for defendants, it was ordered pursuant to Rule 25(d), F.R.Civ.P., that Casper W. Weinberger be, and he was, in his official capacity, substituted as party defendant for the original defendant George Shultz.

The second, third and fourth defenses of the answer of defendants were taken up, submitted and denied. In this connection it was concluded that (1) the plaintiff does not lack standing to maintain this action, (2) the Court does not lack jurisdiction over the subject matter of the action and (3) the complaint does not fail to state a claim upon which relief can be granted.

On the initiative of the Court the unnumbered last paragraph of the first defense of the answer was stricken as redundant, surplusage, and an impermissible form of qualified general denial in the context of the pleadings in this case.

With approval of the Court the parties stipulated that the record of the evidentiary hearing and arguments of June 24, 1971, in this cause be considered as part of the argument and evidence offered this day on the amended complaint without prejudice to any objection, motion, argument, legal contention and factual contention therein made, so that it should not be necessary for any party to reoffer at the trial any evidence offered on June 24, 1971.

Then this action was called for trial by the Court, without a jury. Plaintiff and defendants answered ready for trial. Opening statements were made by counsel for the plaintiff and defendants. Evidence in chief of the plaintiff was offered and received. The plaintiff rested. Then the defendants moved for dismissal under Rule 41(b) F.R.Civ.P., on the ground that on the facts and the law plaintiff is not entitled to relief, which motion was denied. The defendants offered evidence in chief and rested. The plaintiff rested without offering evidence in rebuttal. The issues were thereupon submitted by the parties for decision. Thereupon the following findings of fact and conclusions of law were made by the Court:

JURISDICTION

On the subject of jurisdiction it was found and concluded that the Court has jurisdiction to hear and determine

347 F. Supp. 952

the issues under each of the following statutes independently

(1) Section 1361, Title 28, U.S.C.A., relating to actions in the nature of mandamus to compel an officer of the United States to perform a duty owed to the plaintiff.

(2) Chapter 7, Title 5, U.S.C.A., judicial review of administrative agencies, including Sections 702, 703, 704, 705 and 706.

VENUE

On the subject of venue it is found that venue of this action is properly laid in this district and that the defendants do not claim lack of venue.

REMEDIES AVAILABLE

The remedies available under Section 1361, Title 28, U.S.C.A., include mandamus, prohibitory injunction, mandatory injunction and declaratory judgment in the nature of mandamus.

The remedies available under Chapter 7, Title 5, U.S.C.A., include (1) holding unlawful and setting aside of agency action that is arbitrary, an abuse of discretion, or otherwise not in accordance with law or in excess of statutory jurisdiction, authority, limitations or short of statutory right (§ 706) and (2) any form of legal action including declaratory judgment and writs of prohibitory or mandatory injunction (§ 703). Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L. Ed.2d 136.

On the question of finality of the agency action under review, and exhaustion of administrative remedies, it is found and concluded that the agency action under review is final and that no unexhausted administrative remedies exist. Cf. § 704, Title...