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PEOPLE EX REL. BAKALIS v. WEINBERGER

November 30, 1973

PEOPLE OF THE STATE OF ILLINOIS EX REL. MICHAEL J. BAKALIS, SUPERINTENDENT OF PUBLIC INSTRUCTION, STATE OF ILLINOIS, PLAINTIFFS, AND THE STATE OF TEXAS ET AL., PLAINTIFFS-INTERVENORS,
v.
CASPER W. WEINBERGER, SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION & WELFARE, AND JOHN R. OTTINA, ACTING COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION & WELFARE, DEFENDANTS.



The opinion of the court was delivered by: Lynch, District Judge.

MEMORANDUM OF DECISION

The above captioned case has come before this Court on plaintiffs' motions for summary judgment and plaintiffs' motions for permanent injunction. The Court has considered all the pleadings and briefs filed by the parties and has heard arguments of counsel and has concluded that there is no dispute as to any genuine issue of material fact that the plaintiffs, the State of Illinois, the State of Texas, the State of Nevada, the State of Michigan and the State of Missouri are entitled to a judgment as a matter of law.

I — NATURE OF THE ACTION

In this action plaintiffs seek to compel the Secretary of the Department of Health, Education and Welfare and the Acting Commissioner of the Office of Education to allot, allocate and otherwise make available for disbursement and distribution to plaintiffs and plaintiff-intervenors the full amount of monies which were appropriated by Congress for funding under Title III-A of the National Defense Act of 1958, as amended, 20 U.S.C. §§ 441-445 (hereinafter, the Act). It is agreed that it was the intent of this Act to create a program of federal financial assistance to state and local educational agencies for the acquisition of special equipment for public elementary and secondary education in academic subjects, the minor remodeling of laboratory or other space used for such equipment and for other specified purposes.

Pursuant to 20 U.S.C. § 441, authorization is provided for the appropriation of funds for the operation of the programs contemplated by Title III of the Act. This section was amended in 1972 by Public Law 92-318 to provide the authorization for the appropriation of $140,500,000 for the fiscal year ending June 30, 1973. The appropriation pursuant to this authorization was effectuated by Public Law 92-334, Section 101(d), 86 Stat. 404, as amended, which appropriates

  Such amounts as may be necessary for continuing the
  following activities, but at a rate for operations
  not in excess of the current rate * * *
  (4) aid to land-grant colleges, grants for
  construction of undergraduate facilities,
  undergraduate instruction equipment, equipment and
  minor remodeling, and research and development for
  which provision was made in the Office of Education
  Appropriation Act, 1972.

The current rate, that contained in the Office of Education Appropriation Act, 1972, P.L. 92-48, 85 Stat. 103, is $50,000,000.

From the sums appropriated, the Commissioner is authorized to withhold up to 16% to achieve the purposes of the Title in the territories, overseas dependents schools and schools operated for Indian children, (20 U.S.C. § 588) and for loans to private schools (26 U.S.C. § 445). The remainder of such sums is available for allotment by the Commissioner of Education who allots to each state, pursuant to a formula set forth in the statute, the amount of funds it is eligible to receive under the program.

Any state which desires to receive payments under the program must file a plan, comporting with the requirements of 20 U.S.C. Sections 443 and 584 with the Commissioner. If the plan meets the requirements of these sections the Commissioner is to approve it and the state is then eligible to receive payments pursuant to 20 U.S.C. § 442.

The plaintiffs have submitted, and the Commissioner has approved, those plans as required by 20 U.S.C. § 443. The Commissioner determined that from the sums appropriated, after taking into consideration the provisions for reserves, $2,000,000 should be allotted to the states. These funds would be sufficient only to maintain the state offices which administer the program. Plaintiffs contend, and this Court hereby rules, that they should have received their respective shares of the 84% of the $50,000,000 which should have been allotted among the states.

II — JURISDICTION

The Court cannot agree with the government's reasoning that it is without jurisdiction. It has federal question jurisdiction under 28 U.S.C. § 1331. Defendants' answer admits that there is over $10,000 in controversy and the complaint discloses substantial claims founded directly upon statutes of the United States. See State Highway Commission of Missouri v. Volpe, 479 F.2d 1099 (8th Cir., decided April 2, 1973). The independent jurisdictional ground provided by 28 U.S.C. § 1331, together with what this Court holds to be the non-discretionary statutory provisions which are at issue in the present lawsuit, gives this Court jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See Berends v. Butz, 357 F. Supp. 143, 149-156 (D.Minn. 1973); Commonwealth of Pennsylvania v. Weinberger, Civil Action No. 1125-73 (D.D.C. June 28, 1973). Jurisdiction is also properly predicated upon mandamus under 28 U.S.C. § 1361 since the plaintiffs properly allege that defendants are refusing to perform an official action where "the duty in the particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command." In the instant case, plaintiffs are properly seeking to compel the defendants to perform what the Court finds to be a ministerial duty under the Act. See Commonwealth of Massachusetts v. Weinberger, Civil Action No. 1308-73 (D.D.C. July 26, 1973.)

III — SOVEREIGN IMMUNITY

The government asserts that the present suit is barred by the doctrine of sovereign immunity because the judgment sought by the plaintiffs would expend itself on the public treasury by requiring defendants to allot monies belonging to the United States. Since the United States is an indispensible party to such a suit involving the disposition of its funds, and since the United States has not consented to be sued under such circumstances, ...


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