State of Oklahoma v. Weinberger, Civ. No. 73-425-C.

• Decision Date: 30 June 1973
• Docket Number: Civ. No. 73-425-C.
• Citation: 360 F. Supp. 724
• Parties: STATE OF OKLAHOMA, Plaintiff, v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, et al., Defendants, State of Michigan and State of New Mexico, Intervenors.
• Court: U.S. District Court — Western District of Oklahoma

360 F. Supp. 724

STATE OF OKLAHOMA, Plaintiff, v. Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, et al., Defendants State of Michigan and State of New Mexico, Intervenors.

Civ. No. 73-425-C.

United States District Court, W. D. Oklahoma.

June 30, 1973.

Larry Derryberry, Atty. Gen. of Okl., Paul C. Duncan and Joe C. Lockhart, Asst. Attys. Gen., Oklahoma City, Okl., for plaintiff.

Frank J. Kelley, Atty. Gen. of Mich., and Gerald F. Young, Asst. Atty. Gen., Lansing, Mich., for State of Mich., intervenor.

David Norvell, Atty. Gen. of N. M., and Andrea Buzzard, Asst. Atty. Gen., Santa Fe, N. M., for State of N. M., intervenor.

William R. Burkett, U. S. Dist. Atty., and John E. Green, Asst. U. S. Dist. Atty., Oklahoma City, Okl., for defendants.

DECLARATORY JUDGMENT, PERMANENT INJUNCTION AND MANDATORY WRIT

CHANDLER, District Judge.

This matter comes on for duly noticed hearing this 30th day of June, 1973, the plaintiff and intervenors appearing by counsel of record and the defendants appearing by William R. Burkett, United States Attorney and John E. Green, Assistant United States Attorney for the Western District of Oklahoma. The facts not being in dispute the Court ordered trial on the merits to be advanced and consolidated with the hearing of the Application as authorized by Rule 65, F.R.Civ.P., and the Court being fully advised finds the facts to be as follows:

This is a civil action seeking to compel the Secretary of the Department of Health, Education and Welfare, the Director of the Office of Management and Budget and the Acting Commissioner of the Office of Education to allot, allocate and otherwise make available for disbursement and distribution to plaintiff and intervenors the full amount of monies which were appropriated by Congress for funding three programs under the Library Services and Construction Act of 1956, 20 U.S.C. § 351 et seq. (hereinafter referred to as "LSCA").

The authorization for appropriations to States under LSCA are found in Chapter 16 of Title 20 of the United States Code. Section 351 of Title 20 states that "It is the purpose of this chapter to assist the States in the extension and improvement of public library services in areas of the States which are without such services or in which such services are inadequate, and with public library construction, and in the improvement of such other State library services as library services for physically handicapped, institutionalized, and disadvantaged persons, in strengthening State library administrative agencies, and in promoting inter library cooperation among all types of libraries."

20 U.S.C. § 351b authorizes various sums to be appropriated pursuant to Titles I, II and III of LSCA. 20 U.S.C. § 351c provides the formulas by which appropriated funds are to be allotted to the States. By use of the word "shall" in Section 351c with respect to the minimum allotment to each State as well as to allotment of the remainder of the sums appropriated, it is clear that Congress intended that such allotment be mandatory. Such allotment is conditioned only upon the States' meeting the requirements with respect to state plans and programs provided by 20 U.S.C. § 351d.

H.R. 15417, the Department of Labor, and Health, Education and Welfare Appropriation Act of 1973 was passed by the House of Representatives on June 19, 1972. On June 28, 1972, the Senate passed H.R. 15417. Identical amounts were appropriated by each House for funding Titles I, II and III of LSCA.

On July 1, 1972, the President signed into law Public Law 92-334, 86 Stat. 402 which continued appropriations for a large number of programs during fiscal year 1973 including those presently in controversy.

Public Law 92-334 provided that the appropriations for programs which have been funded under a listed Appropriation Act were to be available to the "extent and in the manner which will be provided by the pertinent Appropriation Act." Public Law 92-334 further provided in Section 101(a)(3) that where the House and Senate versions of H.R. 15417 differ, the amount appropriated for any program under the Joint Resolution shall be the lesser of the two versions.

Section 102 of Public Law 92-334 states that the appropriations therein shall remain available until either passage of an Appropriation Act or August 18, 1972, whichever first occurs. Following veto of H.R. 15417 the Joint Resolution (Public Law 92-334) has been since extended four times with the present expiration date being the end of fiscal year 1973 or June 30, 1973. Public Law 92-390, 86 Stat. 563 extended the Continuing Resolution to September 30, 1972, Public Law 92-446 to October 14, 1972, Public Law 92-571, 86 Stat. 746 to 86 Stat. 1204 to February 28, 1973 and Public Law 93-9, 87 Stat. 7 to June 30, 1973.

Public Law 92-334, commonly referred to as the Continuing Resolution, was signed into law by the President and has the same force and effect as an Appropriations Act. The provisions thereof are therefore mandatory on these defendants.

The actions of defendants are part of a general policy decision affecting all HEW programs for fiscal year 1973. This decision was expressed by Defendant Weinberger as Secretary of HEW in his letter of November 27, 1972, replying to a formal inquiry from Senator Magnuson, Chairman of the Subcommittee on Labor, and Health, Education and Welfare. The letter stated:

"All HEW activities for which funds were requested in the Labor-HEW appropriation bill may be continued at a rate of operations not in excess of the 1972 rate, the 1973 budget request, or the House or Senate allowance, whichever is lower. This ruling applies to both discretionary funds and formula grants."

Insofar as defendants have followed this policy to impound funds appropriated for formula grant programs such as those programs presently at issue, they have violated the clear mandate of the Acts discussed herein, the United States Constitution, the Administrative Procedure Act, and their own regulations.

Plaintiff and intervenors seek declaratory judgment establishing their rights, injunctive relief and a mandatory writ to compel defendants to allot, release and distribute monies authorized and appropriated by the Congress to fund this program for the fiscal year ending June 30, 1973 (hereinafter referred to as "FY 1973").

Jurisdiction is based on 5 U.S.C. §§ 701-706, and 28 U.S.C. §§ 1331, 1361, 2201 and 2202.

The amount in controversy exceeds Ten Thousand Dollars ($10,000), exclusive of interest and costs.

Plaintiff, State of Oklahoma (hereinafter referred to as "Oklahoma"), and intervenors are sovereign states of the United States of America. Plaintiff and intervenors bring this action on their own behalf, as representative for their local political subdivisions and as parens patriae for the citizens of their states, to enforce rights and benefits conferred on them, their subdivisions and their citizens, by the LSCA.

Defendant Caspar W. Weinberger is Secretary of the United States Department of Health, Education, and Welfare (hereinafter referred to as "HEW"). As Secretary of HEW, he is responsible for and is charged with the duty of administering programs of federal aid to education. He discharges this responsibility both directly and by delegation to subordinates. He is chief officer of HEW and is responsible for its policies and practices.

Defendant John R. Ottina is Acting Commissioner of the United States Office of Education (hereinafter referred to as "OE"). As Commissioner of Education and delegate of the Secretary of HEW, he is responsible for and is charged with the duty of allotting and disbursing annual appropriations for and otherwise administering programs of federal aid to education under the ESEA, the VEA and the AEA. He is chief officer of OE and is responsible for its policies and practices.

Defendant Roy L. Ash is Director of the United States Office of Management and Budget (hereinafter referred to as "OMB"). As Director of OMB, he is responsible for and is charged with the duty of apportioning revenues appropriated by the United States Congress, including the...