Udall v. States of Wisconsin, Colorado and Minnesota, 16669

• Decision Date: 28 June 1962
• Docket Number: No. 16669,16670.,16669
• Citation: 306 F.2d 790
• Parties: Stewart UDALL, Secretary of the Interior, Appellant, v. STATES OF WISCONSIN, COLORADO AND MINNESOTA, Appellees. Stewart UDALL, Secretary of the Interior, Appellant, v. STATE OF MICHIGAN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

306 F.2d 790 (1962)

Stewart UDALL, Secretary of the Interior, Appellant, v. STATES OF WISCONSIN, COLORADO AND MINNESOTA, Appellees.

Stewart UDALL, Secretary of the Interior, Appellant, v. STATE OF MICHIGAN, Appellee.

Nos. 16669, 16670.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1962.

Decided June 28, 1962.

Petition for Rehearing Denied September 17, 1962.

Miss Kathryn H. Baldwin, Attorney, Department of Justice, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, for appellant. Asst. Atty. Gen. William H. Orrick, Jr. and Messrs. Morton Hollander and Donald B. MacGuineas, Attorneys, Department of Justice, were on the brief for appellant. Mr. John G. Laughlin, Jr., Attorney, Department of Justice, also entered an appearance for appellant.

Mr. Roy G. Tulane, Madison, Wis., of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, with whom Messrs. Newell A. Clapp, Washington, D. C., and Frank E. Hickey, Deputy Atty. Gen. of Colorado, were on the brief, for appellees in No. 16669.

Mr. Nicholas V. Olds, Asst. Atty. Gen. of Michigan, of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Messrs. Wendell Lund and Joseph B. Levin, Washington, D. C., were on the brief, for appellee in No. 16670.

Before WILBUR K. MILLER, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc September 17, 1962.

WRIGHT, Circuit Judge.

These cases arise out of a dispute over the proper method of allocating funds to the several states under the Pittman-Robertson Act.¹ Also known as the Federal Aid to Wildlife Restoration Act, that statute provides for distribution among the states, for use in approved wildlife conservation projects, of receipts from the federal excise tax on firearms, shells and cartridges. Since 1939,² the Secretary of the Interior has been charged with the administration of the Act. He is required, initially, to apportion the net receipts³ among the several states, one-half on an area basis, the remaining portion "in the ratio which the number of paid hunting-license holders of each State in the preceding fiscal year, as certified to him by the State fish and game departments, bears to the total number of paid hunting-license holders of all the States." 16 U.S.C.A. § 669c. Upon notice of the amount set aside for its use, each participating state must submit details of its wildlife project, and, if the Secretary approves it, the allocated moneys are ultimately paid to the applicant state on a matching basis.⁴ 16 U.S.C.A. §§ 669d-669f.

We are here concerned only with the initial apportionment. The sole issue on the merits is whether the tentative allocation of the second half of the "Federal aid to wildlife-restoration fund," into which the tax moneys are deposited, should be made on the basis of the number of hunting licenses sold by a particular state, irrespective of the fact that two or more licenses may have been sold to the same person, or, rather, on the basis of the number of different individuals holding licenses from the state, irrespective of the fact that some of them may hold more than one license. The Secretary takes the latter view. Accordingly, when the appellee states, Wisconsin, Colorado, Minnesota and Michigan, declined to certify the number of persons holding licenses, he refused them the full allocation.⁵ The states, maintaining that apportionment should be made on the basis of total licenses issued, brought mandamus⁶ to compel the Sectary to credit their respective accounts on this basis.⁷ The Secretary challenged the jurisdiction of the District Court to entertain the action, but also answered on the merits. There being no dispute as to the material facts, both sides filed motions for summary judgment, supported by numerous documents and affidavits. The court below denied the Secretary's several motions and awarded summary judgment to the plaintiff states, declaring their interpretation of the Act correct and ordering the Secretary to act accordingly.

I

At the threshold of the case, we are met by a jurisdictional problem. The Secretary insists that this is, in effect, an unconsented suit against the United States, and adds that, in any event, mandamus will not lie under the circumstances. He thus seeks to insulate himself behind two distinct lines of defense. The first is the doctrine of sovereign immunity from suit, which is said to be applicable to this proceeding because it involves the "disposition of sovereign property."⁸ The second is the rule that courts will not "intrude" to compel discretionary action, invoked on the ground that the Secretary's duty to act "turns on matters of doubtful or highly debatable inference from large or loose statutory terms."⁹ But, as Judge Miller and I view the matter,¹⁰ both obstacles are overcome by the finding that, as to the matters in suit, the Secretary of the Interior had no discretion.

In this we follow Clackamas County, Ore. v. McKay, 94 U.S.App.D.C. 108, 219 F.2d 479.¹¹ We put to one side all the talk about the boundary between "private" and "official" deeds,¹² the more subtle difference between merely "tortious" acts and "ultra vires" acts (or acts committed pursuant to "unconstitutional authority"),¹³ and the baffling distinction between "affirmative" action and "negative" action.¹⁴ Without rehearsing all the theories under which such cases have been decided, we simply inquire whether, in the premises, the Secretary of the Interior exercises discretion delegated to him, or merely performs a ministerial function. For the reasons elaborated by Judge Prettyman in Clackamas, if the act is ministerial it does not "involve sovereign power" and the Secretary enjoys no immunity from suit with respect to it. Id., at 94 U.S.App.D.C. 122-123, 219 F.2d 479. And, in such a case, of course, mandamus may issue to compel performance. Marbury v. Madison, supra.

Here, clearly, the Secretary of the Interior was given no discretion in the initial apportionment of the wildlife-restoration fund.¹⁵ He was expressly told to allocate half of it on an acreage basis among the participating states and the other half in proportion to the number of hunting-license holders from each state. And, even in determining that number, he was not authorized to make his own computation, but was directed to accept the state certificates. No judgment, no discretion, is involved. The Secretary's function, in this respect, is almost a purely mechanical one.

It is said, however, that vague legislative language creates an area of doubt requiring the exercise of administrative discretion. But, whatever the merits of that doctrine in different circumstances,¹⁶ it does not apply to this case. There are here no "large or loose statutory terms." Panama Canal Co. v. Grace Line, Inc., supra, at 318, 78 S.Ct. at 757. The only term in dispute is "hunting-license holders," and, though some effort is made to read two meanings into that apparently clear expression, no one pretends that Congress thought it ambiguous or intended the Secretary to construe it as he saw fit. Obviously, Congress meant only one thing by the term. In view of the controversy over its true construction, the court must decide what was intended. But that implies no discretion in the administrator of the Act. Nor does it matter, for jurisdictional purposes, if it can be shown that the question was "much mooted" within the Secretary's office, or that, in applying the statute, he formerly gave the phrase a different construction from that here found correct. For, executive officers "cannot by bootstraps manufactured by them lift themselves out of the jurisdiction of the courts," Clackamas County, Ore. v. McKay, supra, at 94 U.S. App.D.C. 124, 219 F.2d 479, and a misapplication of the statute which results from a "mistake of law," rather than the exercise of delegated discretion, does not bar judicial relief. See Panama Canal Co. v. Grace Line, Inc., supra, at 318, 78 S.Ct. at 757. We conclude that the District Court had jurisdiction to entertain the action and, if appropriate, grant mandamus against the Secretary of the Interior.

II

On the merits, however, we cannot sustain the judgment below. Judge Washington and I think¹⁷ the term "hunting-license holders" refers to persons, not permits. Otherwise, the word "holders" is entirely superfluous.¹⁸ It is the number of different individuals holding licenses that must be counted, rather than the total number of licenses issued. Language cannot be clearer. Yet we are told that what seems plain is not plain, and that we should follow the current fashion of analysing legislative history and administrative interpretation, ignoring the clear language of the statutory text. But even this gambit fails.

Indeed, the legislative history, such as it is, proves nothing. There are, it is true, a few references to computation on the basis of "licenses,"¹⁹ but that only betrays the common assumption that the number of licenses and the number of individual license holders were the same.²⁰ In the absence of evidence of a conscious contrast between licenses and licensees, we cannot read significance into the few shreds tendered us. Nor is the evidence supporting Congressional adoption of a different administrative interpretation convincing. For, again, an apparently uninformed Committee was merely presented with a description of the apportionment formula in terms of "licenses" with no suggestion of the possible difference between that measure and the one set forth in the statute. Certainly, the repeated use of the word "licenses" in the appearances of the Secretary's representatives before Congressional committees cannot be read as more than bureaucratic shorthand for the more cumbersome statutory term "paid hunting-license holders."²¹

As to the administrative practice, it does appear that, for some...