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October 6, 1978

Juanita M. KREPS, Secretary of Commerce, et al., Defendants

The opinion of the court was delivered by: BURKE

By motion with supporting papers filed May 17, 1978 defendants move to dismiss the action pursuant to Rule 12(b). Federal Rules of Civil Procedure, on the ground that plaintiff has failed to state a claim upon which relief can be granted.

On February 24, 1978 plaintiff filed the complaint herein. The complaint alleges that plaintiff's application for funding of a public works project was arbitrarily denied under the Local Public Works Capital Development Investment Act of 1976, P.L. 94-369, 90 Stat. 999, as amended by the Public Works Employment Act of 1977, P. L. 95-28, 91 Stat. 116, May 13, 1977. 42 U.S.C. Sections 6701 et seq. (the LPW Act).

 The complaint alleges jurisdiction under the Administrative Procedure Act, 5 U.S.C. Section 701 et seq. and under 28 U.S.C. Section 1331. The complaint seeks permanent injunctive relief restraining defendants from disbursing the amount of LPW funds necessary to fund plaintiff's application in the amount of $ 1,013,300. Plaintiff also seeks a mandatory injunction ordering federal defendants to approve plaintiff's application.

 The Local Public Works Capital Development and Investment Act of 1976 became law on July 22, 1976. Thereafter, Congress appropriated Two Billion Dollars, less administrative expenses, for implementation of the Act, P.L. 94-447, 90 Stat. 1497 (October 1, 1976.) Defendants approved over two thousand applications for funds under what has come to be referred as Round I of the Act.

 Even before completion of Round I funding, new bills were introduced in the Congress on January 11, and January 25, 1977, H.R. 11 and S. 427. The Public Works Employment Act of 1977 was the result of the legislative process. That law amended the Act of 1976 and authorized an additional Four Billion Dollar appropriation for Round II funding.

 Consistent with the prescriptions of the Act, 42 U.S.C. Section 6706, defendants issued regulations governing Round II on May 27, 1977. 13 C.F.R. Part 317, 42 Fed.Reg. 27432, as amended July 11, 1977, 42 Fed.Reg. 35822. Defendants approved over eight thousand applications for the funding of public works projects in Round II of the LPW Program. Plaintiff did not receive funding under either Round I or Round II of LPW Program. Pursuant to the Economic Stimulus Appropriations Act of 1977, P.L. 95-29, 91 Stat. 122 (May 13, 1977) defendants' power to make LPW grants terminated on September 30, 1977. No funds remain for making other grants under the LPW Act.

 Plaintiff seeks a mandatory injunction directing defendants "to approve plaintiff's application and to grant plaintiff the $ 1,010,300 requested therein." (Complaint, p. 4, par. 2).

 This court lacks the power to issue a mandatory injunction, such as that requested by the plaintiff, which would, in effect, direct the defendants to make a grant to any particular applicant under the LPW Act.

 The relief sought by the plaintiff to compel the defendants to award funds to the plaintiff is clearly a request for a mandatory injunction. Because the mandatory injunction is sought against a government official, it is a suit in the nature of mandamus and all of the common law restrictions on the use of mandamus is applicable. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S. Ct. 752, 2 L. Ed. 2d 788 (1958). The fundamental restriction on the use of mandamus is that the remedy is available only to compel performance of a plainly ministerial duty or to compel an exercise of discretion where the applicable statute requires an exercise of discretion. Mandamus is not available to compel the exercise of discretion in a particular manner. Panama Canal Co. v. Grace Line Co., 356 U.S. 309, 78 S. Ct. 752, 2 L. Ed. 2d 788.

 The ministerial discretionary test is applied in suits brought by potential recipients of federal grants and contracts to compel allocation of funds to a particular applicant or in a particular manner. Davis Associates, Inc. v. Sec. of HUD, 498 F.2d 385 (1 Cir. 1974); McCarey v. McNamara, 390 F.2d 601 (3 Cir. 1968).

 The LPW Act clearly contemplates the exercise of broad administrative discretion in funding projects. The LPW Act does not require that the defendants make any grants to any eligible applicant, including the plaintiff. The language of Sections 103, 104 and 105 of the LPW Act authorizes the Secretary of Commerce to make grants. Such language is not mandatory nor peremptory. No provision of the LPW Act requires or mandates that any of the defendants obligate all monies appropriated for the LPW Act for specified grant projects.

 Section 107 grants broad discretionary authority to the Secretary in making project selections from among the eligible applicants. The Secretary, in promulgating regulations, need only "consider among other factors (1) the severity and duration of unemployment in the proposed project areas, (2) the income levels and extent of underemployment in proposed project areas, and (3) the extent to which proposed projects will contribute to the reduction of unemployment."

 In addition, in issuing the regulations, the Secretary "shall assure that adequate consideration is given to the relative needs of the various sections of the country." (Section 107). It should be noted that the need for this broad discretion is underscored by the Congressional action (Section 108(h)(1) of the LPW Act) which insured that approximately $ 21.8 billion in Round I project applications which were denied would be eligible for the Four Billion Dollar Round II appropriation. Obviously, Congress contemplated numerous exercises of discretion which would result in the denial of most of the pending applications.

 Plaintiff has failed to state a claim for which relief can be granted in so far as the plaintiff has requested that this court issue a writ of mandamus directing the defendants ...

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