author: HASTIE, Senior Circuit Judge:

text:
    Dorothy W. JACKSON et al., Individually and on behalf of all others similarly situated, Appellants, v. James T. LYNN, Individually and as Secretary of the Department of Housing and Urban Development, and United States of America, et al.
    No. 73-1510.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 8, 1974.
    Decided Oct. 17, 1974.

      G. Dan Bowling and Michael Diamond, Washington, D. C., for appellants.
    Robert P. vom Eigen, Atty., Dept, of Housing and Urban Development, of the bar of the Supreme Court of Connecticut, pro hae vice, by special leave of court, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Thomas G. Corcoran, Jr., and Michael G. Scheininger, Asst. U. S. Attys., and Arthur J. Gang, Atty., Dept, of Housing and Urban Development, were on the brief, for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.
    Before HASTIE, Senior Circuit Judge, and WRIGHT and WILKEY, Circuit Judges.

       Of the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   HASTIE, Senior Circuit Judge:

Each of the appellants purchased a house in the District of Columbia, giving a mortgage which the Federal Housing Administration (FHA) insured pursuant to section 221 of the National Housing Act as amended, 12 U.S.C. § 1715l (1970). Later, they joined in this suit against the United States and three federal administrators of the FHA program. The complaint alleged that various real estate brokers led plaintiffs, inexperienced home buyers making their first such purchases, to believe that the houses were in FHA approved condition, and that the government would stand by the houses. It further alleged that the brokers purposely deterred plaintiffs from adequately inspecting the houses prior to purchase, asserting that the government would require repair of any defective conditions or that the brokers themselves would make any necessary repairs after purchase. Defects were never repaired, and the houses as sold were and are in violation of the Housing Regulations of the District of Columbia.

Appellants sought to represent the class of all persons in the District of Columbia who have purchased, are in the process of purchasing, or will purchase homes with mortgages insured pursuant to section 221. They sought a declaration that subsection (d)(2) allows the Secretary to insure mortgages only if the houses comply with local housing regulations, and an injunction to restrain defendant officials from insuring mortgages on homes which do not so comply. Appellants also sought damages from the United States equal to the difference between the value of their homes when purchased and the value their homes would have had when purchased had they then conformed to the housing code; or, as an alternative to damages, an order requiring the FHA to finance appellants’ purchases, without down payment, of other homes in proper repair by insuring mortgages for the entire purchase price.

On defendants’ motion the district court dismissed the damage claim for lack of jurisdiction and the requests for injunction and prospective declaratory relief for lack of standing. 1973, 355 F.Supp. 737. The request for a declaration that plaintiffs’ mortgages were illegally insured was dismissed for failure to state a claim on which relief could be granted.

On this appeal the district court’s jurisdiction over all of the claims is challenged. However, this court has recently determined that section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970), constitutes an independent grant of jurisdiction to the district courts. Pickus v. United States Board of Parole, 1974, 165 U.S.App.D.C. -, 507 F.2d 1107 (1974) and cases cited therein. Thus, the district court had jurisdiction over all claims that challenged “agency action” as that term is defined in the Act, 5 U.S.C. § 551. District court jurisdiction over the damage claim, subject however to possible sovereign immunity bar, exists under 28 U.S.C. § 1346(a)(2), since this is an action for less than $10,000 founded upon the National Housing Act, an Act of Congress. Cf. Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.

The record contains neither a certificate or any showing that the district court agreed to hear this case as a class action, nor any judicial pronouncement to define the scope of the class. Rule 23(c)(1), F.R.Civ.P. provides for a determination by order of the district court whether an action brought as a class action may be so maintained. Courts have treated an affirmative order under that Rule as prerequisite to class action maintenance whether or not the defendant challenges the class action allegations. E. g., Dorfmann v. Boozer, 1969, 134 U.S.App.D.C. 272, 414 F.2d 1168, 1171 n. 8; Davis v. Romney, supra n. 2. Thus, this court may not consider this appeal as a class action, and may reach issues only to the extent that named plaintiffs are affected.

Damages are sought only against the United States. The plaintiffs predicate their damage claim upon the Tucker Act which gives the district courts jurisdiction over any “civil action or claim against the United States, not exceeding $10,000 in amount, founded upon . . . any Act of Congress”. 28 U.S.C. § 1346(a)(2). Thus, to state a cause of action for damages plaintiffs must rely upon an Act of Congress which expressly or impliedly creates a statutory right to such relief. For jurisdictional purposes it may suffice that a plaintiff is attempting to show that conduct of which he complains violates an Act of Congress. But to state a claim upon which relief may be granted his contention as to the meaning and reach of that Act must be legally correct. He must show that a statute, properly construed, sanctions a private claim against the government, and for the payment of money at that.

The plaintiffs assert that HUD’s action in insuring their mortgages on dwellings that were not in conformity with the Housing Regulations of the District of Columbia violated the requirement of section 221(d)(2) of the National Housing Act that, in order for a mortgage to be insurable under this section a dwelling must meet “the requirements of all State Laws, or local ordinances or regulations, relating to the public health or safety . . . which may be applicable thereto . . . . ” For present purposes we assume that this is correct in fact and in law. But beyond that, plaintiffs must show that section 221(d)(2) confers upon them a right of redress against the United States for HUD’s violation of its statutory duty. The National Housing Act contains no language to this effect. So plaintiffs must establish that a private right to recover from the United States is properly implied.

Appellants rely specifically on no more than brief comments of Mr. Cole, Administrator of the Housing and Home Finance Agency, at the 1958 House hearings and Senator Douglas at the 1959 Senate hearings. The 1958 House proceedings consumed several full days of testimony and more than seven hundred published pages. Questions of finance, raised ceilings, interest rates, expanded scope of housing programs, and the like occupied by far the greatest part of the testimony of various interested groups. Mr. Cole’s isolated comment related to mortgage co-insurance proposals under which the lender and insurer would share the risk, although apparently the lender’s risk would be minimal. He was not speaking of any existing FHA program. Such a comment on a different section and scheme cannot support an implication that section 221(d)(2) was intended to benefit buyers who normally look to their sellers for redress when their property proves defective.

Similarly, the context of Senator Douglas’ equally brief comment during the Senate hearing shows that it is at best tangentially relevant here. His point was that the purpose of the public housing program was not limited to rehousing in public projects persons displaced by government clearance and construction activity, but included moving from unsatisfactory living conditions into public housing persons unaffected by such activity. Its relevance here is minimal since section 221 is not a public housing provision. Thus, the cumulative weight of the two cited passages is unimpressive. Appellants have not cited other particular comments in the hearings, and we have found none that support the implication they would draw.

In addition, the effort to imply a cause of action is impeded in this case because it requires a conclusion of waiver of sovereign immunity. Courts should not lightly imply that the United States has consented to forego the normal immunity of the sovereign from suit.

It also merits consideration at this point that on March 2, 1972 the Senate passed Senate Bill 3248, which later died in the House Committee on Banking and Currency. That bill would have authorized HUD to correct, or compensate mortgagors for, defects in their homes that had been insured under section 221. A 1970 amendment to the Act had conferred that benefit upon section 235 mortgagors. 12 U.S.C. § 1735b. The later abortive legislative effort to grant equivalent relief to section 221 mortgagors indicates that the Senate, at least, did not view existing law as entitling section 221 mortgagors of defective houses to redress from the government.

For these reasons we hold that the claim against the United States for damages failed to state a cause of action upon which relief could be granted.

We now consider plaintiffs’ claim, alternative to damages, for corrective administrative action that could result in their acquisition of homes other than their present defective ones. Arguably, such a remedy might be considered in this case, viewed as judicial review under section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702, of “agency action” violative of section 221(d)(2) that has injured the plaintiffs. But plaintiffs do not allege and the record does not suggest that plaintiffs have asked the agency for the relief under discussion. Thus, the “agency action” under review cannot be denial of any request. Hence, the only action which can be complained of is the agency’s policy and practice of insuring mortgages on non-conforming dwellings. But under that approach the power of the reviewing court is limited in a way that precludes the relief now under consideration.

Section 10(e) of the Act, 5 U.S.C. § 706, states the applicable scope of review. The court may only hold unlawful and set aside wrongful agency action, § 706(1), and compel action unlawfully withheld or delayed, § 706(2). Holding unlawful past insuring practices would not achieve the affirmative relief plaintiffs desire. Moreover, they cannot establish that the relief they seek is “action unlawfully withheld” since, as noted above, there is nothing in the record to suggest that they have requested it from the agency. Thus, the desired insuring of new homes for plaintiffs may not be ordered by way of judicial review of agency action under the Administrative Procedure Act.

Finally, appellants have urged that, whatever may be decided about their other prayers for relief, the court should issue an injunction or hand down a declaratory judgment authoritatively determining that section 221 imposes upon HUD a legal duty to require that dwellings conform to the requirements of the local housing code before it grants section 221 mortgage insurance. This aspect of the controversy, which focuses upon HUD’s anticipated future conduct, has now become moot.

In its brief, the government has informed this court that HUD has changed policy and practice and now requires that a dwelling comply with .the applicable local housing code in order to qualify for mortgage' insurance under section 221(d)(2). Moreover, it is now required that compliance be evidenced at each closing by a letter from the local code enforcement agency so certifying.

Of course, as concerns the alleged wrongful injury that plaintiffs already have suffered, full relief is being sought through damages or alternative corrective action, and we have found that plaintiffs have not stated a cause upon which relief can be granted. Therefore, no significant interest of the plaintiffs would be served by a declaratory ruling whether or not Congress limited the insurance program under section 221 to homes that comply with local codes. Cf. Gross v. Fox, 3d Cir. 1974, 496 F.2d 1153.

For these reasons, the judgment dismissing this suit is

Affirmed.

      . The district court assumed arguendo that plaintiffs had standing to obtain such a judgment. 355 F.Supp. at 742.

      . An alternative source of jurisdiction over all but the damage claim is asserted under 28 U.S.C. § 1337. The legislative debates strongly suggest that a primary purpose of the Act was to stimulate interstate commercial activity as a means of combating the economic depression in existence in 1934. 78 Cong.Rec. 11191, 11973 (1934). So reasoning, the Court of Appeals for the Third Circuit has held that the Act is sufficiently related to the commerce power to bring it within the § 1337 jurisdiction. Davis v. Romney, 3d Cir. 1974, 490 F.2d 1360.

      . Housing Act of 1958, Hearings before the Subcommittee on Housing, Committee on Banking and Currency, House of Representatives, 85th Cong., 2d Sess. (1958); Housing Act of 1959, Hearings, Senate Banking and Currency Committee, 86th Cong., 1st Sess. (1959). The statements relied upon appear at p. 15 of the House hearings and p. 145 of the Senate hearings.

      . We do not agree with a suggestion by the Court of Claims that the Tucker Act’s jurisdictional designation of the district courts as the forum in which claims against the United States for monetary awards, may be litigated constitutes a waiver of sovereign immunity from suit on claims not otherwise authorized. National Bank of Newark v. United States, 1966, 174 Ct.Cl. 872, 357 F.2d 704.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America v. Melvin Douglas LIGHTFOOT, a/k/a Douglas Williams, Appellant.
    No. 73-1785.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 19, 1974.
    Decided Oct. 18, 1974.
    Rehearing Denied Dec. 2, 1974.

      Eric P. Neuman (Student Counsel) with whom Sherman L. Cohn and William H. Rodgers, Jr., Washington, D. C. both appointed by this Court, were on the brief for appellant. Frederick E. Martin* and Robert Schlaeter* (Student Counsel) also entered appearances for appellant.
    Julius A. Johnson, Asst. U. S. Atty. with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Asst. U. S. Atty. were on the brief, for appellee. Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and Steven R. Schaars, Asst. U. S. Atty. also entered appearances for appellee.
    Before McGOWAN, and TAMM, Circuit Judges, and EDWARDS, United States Circuit Judge for the Sixth Circuit.

       Entered appearances as Student Counsel pursuant to Rule 20 of the General Rules of this Court.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   PER CURIAM.

Defendant-appellant Melvin Lightfoot was found guilty after jury trial of a variety of crimes ranging from pandering (D.C.Code Ann. § 22-2705 (1973)) and violating the Mann Act (18 U.S.C. § 2421 (1970)) to receiving stolen property (D.C.Code Ann. § 22-2205 (1973)). Into the bargain the government charged him with and convicted him on one count of interstate travel with intent to distribute the proceeds of illegal activity (18 U.S.C. § 1952 (1970)).

Since there is ample evidence from which the jury could have found guilt beyond a reasonable doubt as to all five counts charging the first three violations referred to above, and we find no reversible error in the trial itself, our primary concern is appellant’s conviction for violation of the interstate travel act. This statute in applicable part provides:

“(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
(1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further any unlawful activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
“(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of. the laws of the State in which they are committed or of the United States, . . . .”18 U.S.C. § 1952 (1970).

It appears to us that Congress was seeking to prevent racketeers from engaging in interstate travel to further the purposes of concerted illegal activity. This purpose was made clear by Attorney General Robert Kennedy’s testimony in support of the bill:

“We are seeking to take effective action against the racketeer who conducts an unlawful business but lives far from the scene in comfort and safety, as well as against other hoodlums.
“Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illegal businesses as spelled out in the bill. .
“The target clearly is organized crime. The travel that would be banned is travel ‘in furtherance of a business enterprise’ which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise.
* * * * -x- #
“Our investigations also have made it quite clear that only the Federal Government can shut off the funds which permit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officials.” S.Rep.No.644, 87th Cong., 1st Sess., 2-3 (July 27, 1961).

In the Supreme Court’s first contact with this statute, Chief Justice Warren said:

“The Travel Act formed part of Attorney General Kennedy’s legislative proposals to combat organized crime. See Hearings on S. 1653-1658, S. 1665 before the Senate Judiciary Committee on the Attorney General’s Program to Curb Organized Crime and Racketeering, 87th Cong., 1st Sess. (1961). The Attorney General told the Senate Committee that the purpose of the Travel Act was to aid local law enforcement officials. In many instances the ‘top men’ of a given criminal operation resided in one State but conducted their illegal activities in another; by creating a federal interest in limiting the interstate movement necessary to such operations, criminal conduct beyond the reach of local officials could be controlled.” United States v. Nardello, 393 U.S. 286, 290-291, 89 S.Ct. 534, 537, 21 L.Ed.2d 487 (1969).

The opinion also noted:

“The Travel Act, primarily designed to stem the ‘clandestine flow of profits’ and to be of ‘material assistance to the States in combating pernicious undertakings which cross State lines,’ thus reflects a congressional judgment that certain activities of organized crime which were violative of state law had become a national problem. The legislative response was to be commensurate with the scope of the problem.” Id. at 292, 89 S.Ct. at 538. (Footnote omitted.)

In Rewis v. United States the Court said:

“ § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another. In addition, we are struck by what Congress did not say. Given the ease with which citizens of our Nation are able to travel and the existence of many multi-state metropolitan areas, substantial amounts of criminal activity, traditionally subject to state regulation, are patronized by out-of-state customers. In such a context, Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies. It is not for us to weigh the merits of these factors, but the fact that they are not even discussed in the legislative history of § 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State. In short, neither statutory language nor legislative history supports such a broad-ranging interpretation of § 1952. And even if this lack of support were less apparent, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955).” Rewis v. United States, 401 U.S. 808, 810-811, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971).

With these purposes and background for the statute in mind, we find no justification for its application to our instant case.

The government’s proofs show that defendant-appellant bought an automobile (a Cadillac) from a dealer in Maryland and subsequently drove it to the District of Columbia. There isn’t the slightest suggestion that the dealer from whom defendant purchased the Cadillac was part of or even privy to knowledge about defendant’s illegal activity. It is the sum total of the government’s case on this score that the funds with which defendant paid for the Cadillac were derived from prostitution— one of the organized crime offenses specifically referred to in the statute — and, hence, that his purchase represented “distributing] the proceeds of [an] unlawful activity.”

The word “distribute” simply does not encompass the concept of buying an article in the normal course of trade:

“distribute /de’stribyet, -i(,) bytit, chiefly in substand .speech - bet; usu -d.+V/ vb distributed /-yed.ed,yeted/distributed /”,/ distributing /-yed.in,-yatin/ distributes ,/-yets,yuts,/ [ME distributen, fr. L distribute, past part, of distribuere, fr. dis- ’dis-+ tribuere to assign, give, allot— more at TRIBUTE] vt la : to divide among several or many : deal out : apportion esp. to members of a group or over a period of time : ALLOT <the American Relief Administration distributed nearly five million tons of foodstuffs — Current Biog.y <the problem of how to — taxes equitably among the various economic groups — Collier’s Yr. Bk.~> <precipitation is not ample, but is distributed throughout the year— G. G. Weigend> b : DISPENSE, ADMINISTER <— justice> lamented that the great fields of private law, where justice is distributed between man and man, should be left without a caretaker- — B. N. Cardozo> 2 a : to spread out or scatter so as to cover a surface or a space <distributing the seed over the lawn> ddistributing the ink evenly over the print>; also : to give out or deliver esp. to the members of a group <distributing magazines to subseribers> <the U.N. secretariat, which distributed a 125-page questionnaire to member governments —Current Biog.~> b : to place or position usu. so as to be properly apportioned over or throughout an area <the blood vessels distributed throughout the arm> <he seems chunkier than the 175 pounds distributed over his five feet ten inches would indicate —W. B. Furlong> <the various factories distributed throughout the city —Amer. Guide Series: N.H.> <a widely distributed company —Marquis James> <our Indians are not evenly distributed —Juan Comas> c logic : to use (a term) so as to convey information about every member of the class named <the proposition ‘all men are mortal’ —s a universal affirmative subject, here ‘man’, but does not — the predicate> 3 a : to divide or separate esp. into classes, orders, kinds, or species : CLASSIFY, ASSORT <spend a good deal of time distributing his specimens into their proper classes> b (1) : to separate the units of (as typeset matter or handset matrices) and return to the proper storage places (2) of a keyboard slug-casting machine : to return (matrices) automatically to the proper magazine channels —■ vi : to make distribution : spread out” Webster, Third New International Dictionary (1967).

We believe that, particularly in the context of this case, the word “distribute” carries a connotation of distribution of illegal proceeds to persons in organized crime conspiracies. Certainly the person receiving them must be entitled to them for reasons other than normal and otherwise lawful purchase and sale of goods at market prices.

Any other construction would make any person who gained his livelihood illegally, vulnerable to federal prosecution the moment he crossed a state line on vacation and bought a hamburger.

We might, of course, have a very different case if defendant had bought the car during interstate travel and given it to one of his prostitutes as compensation. Here, however, we have no such facts and as to this count the judgment of conviction is vacated.

As to the other issues presented on appeal, we find no merit.

The search warrant was issued upon an affidavit amply demonstrating probable cause to believe appellant was engaged in criminal activity and that the objects sought to be seized were both derived therefrom and used therein. The reliance upon Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), is completely inapposite. The breadth of this warrant was justified by the fact that there was evidence that the items seized were all then being employed in the crime of organized prostitution. Like Stanford, of course, appellant had both First and Fourth Amendment rights. But we are unable to see that any First Amendment rights were threatened or any Fourth Amendment rights were violated.

In this latter regard, we note and rely upon this Circuit’s recent holding that the terms of a search warrant may be construed by reference to the circumstances disclosed in the accompanying affidavit. United States v. Thompson, 161 U.S.App.D.C. 339, 495 F.2d 165 (1974).

We also find no abuse of discretion in the District Judge’s refusal to grant a new trial in this case. We do not view the affidavits relied upon by appellant as exculpatory. Assuming nonetheless they might have had some collateral value to the defense for purposes of impeachment, they are hardly in the category of newly discovered evidence which would require grant of a new trial. And we do not see how their availability at a new trial could be expected to alter the outcome.

The judgments of conviction as to all counts, except Count I, are affirmed. The judgment of conviction as to Count I is vacated and that count is remanded to the District Court for dismissal of the charge.


text:
    VALLEY FORGE FLAG COMPANY, INC., a New York corporation, Appellant, v. Thomas S. KLEPPE, Administrator Small Business Administration.
    No. 73-1801.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 23, 1974.
    Decided Oct. 17, 1974.

      Nicholas E. Allen, Washington, D. C., with whom Jerome Handler, New York City and Philip F. Herrick, Washington, D. C., were on the brief for appellant.
    Steven R. Schaars, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Thomas G. Corcoran, Jr., Asst. U. S. Attys., were on the brief for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.
    Before EDWARDS, United States Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

      Sitting by designation pursuant to 28 U.S.C. § 291(a).

   PER CURIAM.

This is an appeal from an order entered by a District Judge in the United States District Court for the District of Columbia granting summary judgment for defendant-appellee Kleppe, the administrator of the Small Business Administration. Plaintiff-appellant Valley Forge Flag Company, Inc., had sought injunctive relief against the SBA’s entering into a supply contract with the Watts Flag Company, a “disadvantaged” employer. The complaint also sought declaratory judgment.

The District Judge’s Order recited the facts and her holding as follows:

This case is before the Court on plaintiff’s motion for preliminary injunction and defendant’s motion to dismiss.
In December 1972, the Veterans Administration issued a solicitation for interment flags under the small business set-aside program. Watts Manufacturing Corporation (“Watts”), which is owned by disadvantaged persons, submitted the lowest bid. Plaintiff, which submitted the second lowest bid, has moved to enjoin defendant from issuing to the Veterans Administration a Certificate of Competency with respect to Watts. However, the defendant no longer intends to issue such a certificate since the Veterans Administration has cancelled the solicitation. Counsel for defendant has represented to the Court that defendant has no present intention this fiscal year of negotiating further flag contracts under the 8(a) program, involving business owners who are disadvantaged persons. Counsel for defendant has further represented that if and when bids are resolicited pursuant to new specifications, they will be done so on a competitive basis among small businesses, including plaintiff.
The SBA Administrator’s actions in soliciting bids among all small businesses and in cancelling the solicitation were conducted within the scope of his authority. Plaintiff is thus barred from seeking an injunction against the Administrator. 15 U.S.C. § 634(b)(1). In addition, plaintiff has not shown it has standing to ask that disadvantaged small businesses receiving § 8(a) benefits be precluded from the small business set-aside program and be denied certificates of competency. Finally, plaintiff has not met its burden of showing that a preliminary injunction should issue under the Virginia Petroleum Jobbers Association test, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). For the foregoing reasons, it is by the Court, this 30th day of March 1973,
ORDERED that plaintiff's motion for preliminary injunction should be and the same hereby is denied; and it is
FURTHER ORDERED that defendant’s motion to dismiss should be and the same hereby is granted.

The statute in question squarely authorizes the Small Business Administration to assist small business concerns through private placement of contracts and issuance of certificates of competency. See 15 U.S.C. § 637(a)(1) and (2), § 637(b)(7) (1970). By regulation the advantages of this Act have been extended to small business concerns owned by disadvantaged persons:

(b) Purpose. It is the policy of SBA to use such authority to assist small concerns owned by disadvantaged persons to become self-sufficient, viable businesses capable of competing effectively in the marketplace.
(c) Eligibility. To be eligible for an 8(a) subcontract, a concern must be owned or destined to be owned by socially or economically disadvantaged persons. . . . The existence of control is a question of fact for administrative determination under the circumstances of each case. Divestiture of at least 51 percent of the stock will create a rebuttable presumption of divestiture of control.

13 C.F.R. § 124.8-1 (b), (c) (1973).

The statute and regulation cited above have been upheld by the Fifth Circuit in a careful opinion by Judge Wisdom, with which we agree. Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1410, 39 L.Ed.2d 468 (1974).

Further, a section of the Small Business Act prohibits injunctive relief against “the Administrator or his property” :

(b) In the performance of, and with respect to, the functions, powers, and duties vested in him by this Act [§§ 631 and notes-637, 638, 639, 640-647 of this title] the Administrator may—
(1) sue and be sued ... in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy; but no injunction, ... or other similar process . . . , shall be issued against the Administrator or his property;
15 U.S.C. § 634(b)(1) (1970) (Emphasis added).

Since we believe the actions of the Administrator complained about here were clearly within the scope of his authority, the District Judge was right in denying injunctive relief.

Further, we believe that neither paragraph six nor any other paragraph of the complaint contains well-pleaded facts which present a justiciable issue for declaratory judgment. Plaintiff-appellant makes no claim that either the statute or the regulation are unconstitutional. While plaintiff’s company may have received less business from the government than it desires, we find no basis for judicial intervention in the policy decisions concerning small business assistance upon which Congress and the agency have determined. Berman v. Parker, 348 U.S. 26, 35-36, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 138-139, 59 S.Ct. 366, 83 L.Ed. 543 (1939).

For these reasons we affirm the denial of injunctive relief and the dismissal of plaintiff-appellant’s complaint.

The judgment of the District Court is affirmed.

WILKEY, Circuit Judge, concurs in the result.