author: WEBSTER, Circuit Judge.

text:
    BLOCK INDUSTRIES, a corporation, Appellant, v. DHJ INDUSTRIES, INC., a corporation, et al., Appellees.
    No. 73-1764.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided April 10, 1974.

      Murray Ogborn, Aberdeen, S. D., for appellant.
    Mart R. Vogel, Fargo, N. D., for ap-pellees.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this appeal, Block Industries, defendant in a personal injury action below, seeks reversal of an order of the. District Court dismissing four foreign corporations which Block had attempted to join as third-party defendants. We affirm.

Larry Allen Ham, plaintiff below, filed a complaint in the United States District Court for the District of South Dakota seeking $750,000 in damages for personal injuries suffered when a shirt, manufactured by Block, was ignited, causing severe burns. The accident occurred in South Dakota, plaintiff’s residence. Block is a North Carolina corporation, and jurisdiction was based upon diversity of citizenship. 28 U.S.C. § 1332.

Thereafter, Block filed a third-party complaint, naming as third-party defendants four fabric manufacturers, all nonresidents of South Dakota and all having their principal places of business outside that state: DHJ Industries, Inc.; Klopman Mills; Spring Mills and Greenwood Mills, Inc. The third-party complaint alleged that any negligence proximately causing the injury to plaintiff was “that of the Third-Party Defendants who designed, manufactured and placed into the stream of commerce the fabric and material used in the manufacture of the shirt referred to in Plaintiff’s Complaint.” Alternatively, Block alleged breaches of express and implied warranties by the third-party defendants.

Each third-party defendant, either by motion to dismiss or by answer, challenged the in personam jurisdiction of the court, asserted under South Dakota’s long-arm statute, SDCL § 15-7-2 (1967) - In extensive affidavits, the third-party defendants averred that they had never conducted business in South Dakota and that their contacts with the state were so negligible as not to satisfy the requirements of due process. In its resistance to the motions to dismiss, Block contended that “one or more of the Third Party Defendants, depending upon the facts as they may develop in the course of the trial of this case, manufactured material and put the same in the stream of commerce of ultimate distribution in the State of South Dakota, which allegedly caused a tortious injury within the State of South Dakota.”

The District Court found that “the record as a whole fails to show contacts minimal or otherwise”, and that South Dakota’s long-arm statute therefore could not be used to acquire personal jurisdiction. We affirm the results reached by Judge Beck, but for somewhat different reasons.

In search of indemnity, Block has asserted long-arm jurisdiction over four fabric manufacturers. While its third-party complaint asserts joint tort liability on the part of all third-party defendants, it is obvious, and Block concedes on oral argument, that it has no knowledge or information upon which to base such allegations. Block obviously hoped to ascertain, by means of interrogatories, which, if any, of the fabric manufacturers did indeed produce the fabric which was incorporated in the shirt worn by the plaintiff. Such tactics are not unusual in day-to-day negligence litigation. Nothing in the federal rules precludes the naming of multiple defendants, only one of whom may prove to have been responsible. Rule 20, Federal Rules of Civil Procedure, provides that “ * * * All persons * * * may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact, common to all defendants will arise in the action.” The purpose of alternative joinder is thus explained by Professors Wright and Miller:

The need for alternative joinder of defendants typically arises when the substance of plaintiff’s claim indicates that he is entitled to relief from someone, but he does not know which of two or more defendants is liable under the circumstances set forth in the complaint.
7 C. Wright & A. Miller, Federal Practice and Procedure § 1654, at 278 (1972).

While permissive joinder and alternative pleading is thus liberally construed in federal practice, personal jurisdiction must in each case be tested by the requirements of Rule 4, Federal Rules of Civil Procedure. See Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946); 7 J. Moore, Moore’s Federal Practice f[ 82.02 [1], at 82-3 (1974). In this ease, service was obtained by means of the procedure authorized by the South Dakota long-arm statute and made applicable to federal litigation by Fed.R.Civ.P. 4(e). The validity of such service in any particular case depends ultimately upon the jurisdictional facts contained in the record, together with the requirements of the forum’s long-arm statute and any limitations imposed thereon by the due process clause of the Fourteenth Amendment.

The Supreme Court of South Dakota has expressed its belief that “the legislature by enacting the ‘long arm’ statute intended to provide South Dakota residents with maximum protection of South Dakota courts from damages and injuries occasioned them through the acts or omissions, both contractual and tortious, of a nonresident when that nonresident has had the necessary minimal contacts with the state to comply with federal due process.” Ventling v. Kraft, 83 S.D. 465, 161 N.W.2d 29, 34 (1968); see also Kulm v. Idaho First National Bank, 428 F.2d 616 (8th Cir. 1970).

In this circuit, personal jurisdiction under long-arm statutes must meet due process requirements governed by the following general guidelines: (1) the nature and quality of the contacts with the forum state; (2) the quantity of contacts with the forum state; (3) the relation of the cause of action to the forum state; (4) the interest of the forum state in providing a forum for its residents; (5) the convenience of the parties. Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365, 368 (8th Cir. 1969). See also International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Af-tanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965).

In this appeal, Block has elected to let its case stand or fall upon the accrual of a tort in South Dakota, SDCL § 15-7-2(2) (1967); in oral argument it rightly abandoned its alternative claim of personal jurisdiction based upon the fabric manufacturers’ alleged transaction of business within that state, SDCL § 15-7-2(1) (1967). When a plaintiff seeks to bring a defendant into court under a long-arm statute, he must state sufficient facts in the complaint to support a reasonable inference that such defendant can be subjected to jurisdiction within the state. Williams v. Vick Chemical Co., 279 F.Supp. 833 (S.D. Iowa 1967). Once jurisdiction had been controverted or denied, Block had the burden of proving such facts. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Midwest Packaging Corp. v. Oerlikon Plastics, Ltd., 279 F.Supp. 816 (S.D.Iowa 1968). Although a plaintiff seeking to predicate long-arm jurisdiction on the accrual of a tort action within the forum state need not make a full showing on the merits that the nonresident defendant committed the tort, a prima facie showing is required to defeat a motion to dismiss for want of jurisdiction. Fisher v. First National Bank of Omaha, 338 F.Supp. 525 (S.D. Iowa). Appeal dismissed, 466 F.2d 511 (8th Cir. 1972); Midwest Packaging Corp. v. Oerlikon, supra; 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, at 250 (1969). See also Bland v. Kentucky Fried Chicken Corp., 338 F.Supp. 871 (S.D.Tex.1971); Alabama Great Southern R. R. Co. v. Allied Chemical Co., 312 F.Supp. 3, 8 n. 5 (E. D.Va.1970), rev’d on other grounds, 467 F.2d 679 (5th Cir. 1972).

The “prima facie showing” must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto. The record in the instant case discloses at most that each third-party defendant manufactured and sold to Block a fabric meeting the description of the cloth contained in Larry Allen Ham’s shirt; the record contains no showing that any of the third-party defendants were actually connected with the injury or that they had the requisite minimum contacts with South Dakota. The facts shown are insufficient to support an inference that all four third-party defendants can be subjected to jurisdiction within the state of South Dakota. See Williams v. Vick Chemical Co., supra. The nature and quality of contacts with the state of South Dakota by any of the third-party defendants are woefully undemonstrated.

In this respect, Judge Beck correctly held that Block Industries had failed to meet its burden. The trial court correctly found that the contacts were too minimal to support in person-am jurisdiction. Implicit in the application of any long-arm statute are considerations of convenience, fairness and the avoidance of harassment. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, at 244 (1969). To require all four of these third-party defendants to respond in a foreign state upon nothing more than the allegations contained in this third-party complaint would open the door to uncontrolled harassment of a far more deleterious nature than would arise in litigation in which the parties were subject to service of process within the territorial jurisdiction of the court.

Our holding does not preclude Block Industries from pursuit of its claim for indemnity. It has always had the capacity and ability as a defendant in the main lawsuit to require the fabric manufacturers to supply discovery by means of depositions. When it has ascertained the manufacturer of the fabric used in the shirt, it may, by leave of court, renew its third-party complaint against such manufacturer. We do not think, however, that it is appropriate, eonscionable or contemplated by Fed.R.Civ.P. 4(e) that long-arm personal jurisdiction be acquired against multiple third-party defendants upon the mere ' possibility that one or more of them may have contributed to the defect or negligence which is the subject of the suit. While the pleadings may have been technically sufficient for the court to retain jurisdiction, the subsequent showing in resistance to the motion to dismiss was not, in view of the affidavits of the third-party defendants, of equal dignity.

Affirmed.

      . 15-7-2. Acts within the state subjecting persons to jurisdiction of the courts. — Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through any employee, or through an agent, of any of the following acts:
      (1) The transaction of any business within the state;
      (2) The commission of any act which results in accrual within this state of a tort action; * * *

      . In so concluding, the District Court found as fact from “undisputed” statements in the record, that “none of said [third-party] defendants manufactured the fabric which went into the shirt * * * * ” In affirming the District Court, we in no way rely upon this finding, for the record discloses no such concession by Block, and Block’s pleadings are all to the contrary.

      . While in some eases it is more appropriate to test jurisdictional facts upon the proof adduced after full discovery, see Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966), or at trial, see Tetco Metal Products, Inc. v. Langham, 387 F.2d 721 (5th Cir. 1968), the court may properly address itself to the jurisdictional issue at any earlier stage of the proceedings where the affidavits and other exhibits presented on motion' and opposition thereto make the issue ripe for early determination. See Malinow v. Eberly, 322 F.Supp. 594, 600 (D.Md. 1971).

      . Block submitted by affidavit a series of invoices showing sales to Block by the third-party defendants of fabric fitting the general description of the cloth contained in Larry Allen Ham’s shirt. These invoices, however, contain descriptions of a great variety of fabrics and fail to indicate which, if any, might have reached consumers in South Dakota. Moreover, the only invoices reproduced in the appendix submitted on appeal show Spring Mills as seller; none of these invoices mention the other three third-party defendants.

      . Implicit in our holding is our approval of Judge Beck’s dismissal of the third-party complaint without ordering further discovery to ascertain which, if any, third-party defendant actually made the fabric; this was within the sound discretion of the District Court.

      . One cannot escape the inference that at the heart of this controversy is an attempt to shift the cost and burden of discovery in the sure knowledge that some or all of the third-party defendants will be let out by court order or voluntary dismissal. This offends our notion of fundamental fairness.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge: MOORE, Circuit Judge

license: Public Domain

text:
    Michael T. ROSE et al., Plaintiffs-Appellants, v. DEPARTMENT OF the AIR FORCE et al., Defendants-Appellees.
    No. 9, Docket 73-1264.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 29, 1973.
    Decided March 29, 1974.

      Barrington D. Parker, Jr., New York City (American Civil Liberties Union Foundation, John H. F. Shattuck, Melvin L. Wulf, Sanford Jay Rosen, New York City, on the brief), for plaintiffs-appellants.
    Leonard Schaitman, Asst. Chief, Appellate Section, Dept, of Justice, Washington, D. C. (Harlington Wood, Jr., Asst. Atty. Gen., Donald Etra, Atty., Dept, of Justice, Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., William R. Bronner, Gerald A. Rosenberg, T. Gorman Reilly, Asst. U. S. Attys., on the brief), for defendants-appellees.
    Before MOORE, HAYS and FEIN-BERG, Circuit Judges.
   FEINBERG, Circuit Judge:

We are faced in this case with construing two of the exemptions in the Freedom of Information Act (the Act), 5 U.S.C. § 552, one of the many recent federal statutes that bring new and difficult eases into the federal courts. ***As is frequently the case with such legislation, we have little to guide us in the way of precedent, and the brevity and generality of the statutory formulations leave much to be decided by the courts.

I

Appellant Michael T. Rose, a graduate of the United States Air Force Academy (the Academy) was — at the time this complaint was filed — a third year student at the New York University Law School and a member of the Law Review. Together with other students and members of the Review, Rose has been conducting a survey of disciplinary systems at various Service Academies; the study is slated for publication in a forthcoming issue of the Review. In order to document discussion of the Academy’s Honor and Ethics Codes, Rose asked the Academy in autumn 1971 to give him copies of ease summaries of Honor and Ethics Code adjudications, which were kept in the Academy’s files. The Department of the Air Force refused on the ground that these summaries are exempted from compulsory-release by 5 U.S.C. § 552(b)(6), which permits an agency to withhold certain information to avoid unwarranted invasion of privacy.

After exhausting his administrative remedies, Rose joined with appellants Charles P. Diamond and Lawrence B. Pedowitz (who were then, respectively, the current and former Editor-in-Chief of the Review) in this lawsuit under the Act to compel disclosure of the disputed items “with personal references or other identifying information deleted . . .”. Judge Lloyd F. MacMahon of the United States District Court for the Southern District of New York granted appellees (collectively the Agency) summary judgment on the issue of the case summaries. Although ultimately ruling against appellants, the judge agreed with them in large part. The Agency put forth two grounds in the district court to support its non-production of the documents: the Act’s “personal privacy” exemption, referred to above, and the court’s “equitable discretion” to deny disclosure. The judge rejected both arguments. However, he ruled for appellees on a third ground not advanced by them, that the summaries were covered by the exemption in 5 U.S.C. § 552(b)(2) for an agency’s internal rules and practices. Attacking the district court’s order refusing them access to the summaries, appellants prosecute this appeal. We reverse and remand for further proceedings conforming with this opinion.

II

We begin by stressing that the Freedom of Information Act was passed in an effort to cure the defects of former section 3 of the Administrative Procedure Act (APA), 5 U.S.C. § 1002 (1964), which “was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute.” Courts have noted that the Act’s remedial purpose was to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny. See, e. g., Hawkes v. Internal Revenue Service, 467 F.2d 787, 791 (6th Cir. 1972); Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). They have accordingly held that exemptions must be narrowly construed. Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L.Ed.2d 873 (1974); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1080 (1971). This liberal reading of the Act’s disclosure provisions is supported not only by legislative history but, more importantly, by the statutory language, as well. The Act mandates release of documents to “any person” (subject to explicitly defined exemptions) ; grants to the district courts jurisdiction to enjoin improper withholding after a hearing “de novo” in which “the burden is on the agency to sustain its action,” 5 U.S.C. § 552(a) (3); and further calls for disclosure “except as specifically stated in this section.” 5 U.S.C. § 552(c) (emphasis added). With this background in mind, we turn to a discussion of the applicability of Exemption Two, 5 U.S.C. § 552(b)(2), the provision thought by the district court to support the Agency’s refusal to turn over the contested summaries to appellants.

As already indicated, until the district court ruled none of the appellees had thought to rely on Exemption Two in refusing to turn over the case summaries. That section of the Act, see note 8 supra, shields from required disclosure all “matters that are related solely to the internal personnel rules and practices of an agency .”. In some instances, the scope of the exemption may be open to considerable doubt since the Senate and House Reports diametrically clash. The former cites as examples of excluded material “rules as to personnel’s use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.” Senate Rep. 8. The latter, on the other hand, exempts from disclosure “[ojperating rules, guidelines, and manuals of procedure for Government investigators or examiners” but not “ ‘matters of internal management’ such as employee relations and working conditions and routine administrative procedures. . . . ” House Rep. 10. 1966 U.S.Code Cong & Admin. News p. 2427. The Senate Report is thought by many to comply with the statutory language better than the House Report, whose thrust is most frequently toward non-disclosure. This court has not yet taken a firm stand on the issue. Cf. Frankel v. SEC, 460 F.2d 813, 816 & n. 5 (2 Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972); Polymers, Inc. v. NLRB, 414 F.2d 999, 1006 (2 Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970). We conclude, however, that the difference of approach between the House and Senate Reports would not affect the result here.

If we adopt the Senate construction of Exemption Two, case summaries of Hon- or and Ethics Code adjudications clearly fall outside its ambit. Such summaries have a substantial potential for public interest outside the Government. Appellants have drawn our attention to various items such as newspaper excerpts, a press conference by an Academy officer and a White House Press Release, which illustrate the extent of general concern with the working of the Cadet Honor Code. As the press conference and the Press Release show, some of the interest has been generated — or at least enhanced — by acts of the Government itself. Of course, even without such official encouragement, there would be interest in the treatment of cadets, whose education is publicly financed and who furnish a good portion of the country’s future military leadership. Indeed, all sectors of our society, including the cadets themselves, have a stake in the fairness of any system that leads, in many instances, to the forced resignation of some cadets. The very study involved in this case bears additional witness to the degree of professional and academic interest in the Academy’s student-run system of discipline. Moreover, as we later describe in greater detail, see Part III infra, the case summaries themselves have great impact on the lives and careers of subject cadets. Both of these factors — the legitimate public interest and the future effect on cadets — differentiate the summaries from matters of daily routine like working hours, which, in the words of Exemption Two, do relate “solely to the internal personnel rules and practices of an agency.” (Emphasis added.)

Similarly, even the House Report, which is usually more agency-oriented, does not sanction withholding the summaries. As we have already noted, the House Report in this respect seems to permit greater disclosure of “matters of internal management,” except where knowledge of administrative procedures might help outsiders to circumvent regulations or standards. Release of the summaries, which constitute quasi-legal records, poses no such danger to the effective operation of the Codes at the Academy.

Speculating about a different kind of threat to the effectiveness of the Code, the Agency claims that publication of this material might gravely undermine the whole basis of the Honor Code system, whose proceedings are cloaked in confidentiality. The matter of confidentiality is further discussed in Part III infra. It is enough here to point out that appellants have sought only “sanitized” versions of the ease summaries with names “or other identifying information” removed. In response to the redaction point, the Agency argues “that there is no way in which the total success of the deletion process can be guaranteed” and that “the functioning of the Honor and Ethics Codes would be seriously impaired even if inadvertent disclosure is a mere possibility.” But “total success” — in editing, as in anything else — is an impossible standard and surely not one imposed by a statute based upon a general philosophy of full agency disclosure to the public. Given this policy, as well as the injunction to construe exceptions to the Act strictly, 5 U.S.C. § 552(c), we think it clear that the Agency’s withholding of the case summaries (as edited to preserve anonymity) cannot be upheld by reliance on the second exemption.

Ill

The Agency also argues that the summaries sought by appellants fall within the purview of Exemption Six of the Act, 5 U.S.C. § 552(b)(6), which covers “personnel and .medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy .” As already indicated, Judge MacMahon did not agree with appellees on this point, but they renew their argument in this court. On its face, Exemption Six appears relevant; we are dealing here with “personnel” or “similar files.” But the key words, of course, are “a clearly unwarranted invasion of personal privacy,” a wholly conclusory phrase, which requires a court to apply the statutory standard without any definite guidelines. Under these circumstances, precedent lends only marginal aid. Each case involves an essentially unique investigation into the nature of the privacy interest invaded and the extent of the proposed invasion, viewed in the light of contemporary mores and sensibilities as applied to the particular facts.

The data pertinent to our inquiry concern the characteristics and use of the Honor and Ethics Code case summaries. These, the Agency tells us, are extracts of the significant facts in each case heard by the Honor Committee and in some important cases heard by the Ethics Committee. (The Ethics program is administered more informally.) As a matter of custom and procedure, information regarding such cases is required to be held in the strictest confidence. The summaries are, however, posted in the forty squadrons and, upon their official release, Honor Representatives are permitted to discuss any feature of the cases with the cadets for their education. The documents are also distributed to Academy personnel who have a “need to know.” (In not guilty or so-called “discretion” cases the name of the accused is deleted; in guilty cases it is not.) Therefore, in practice, the curtain of confidentiality appears to shield these records from the glare of external publicity but not from the eyes of present cadets — and future ones, who can read the summaries of past proceedings in the Honor and Ethics Code reading files.

These being the facts, one might ask in what way release of the summaries— with names omitted — could increase the potential for invading the privacy of affected cadets. To be sure, some cases might be recognized by readers of the Law Review article even in the absence of names, by virtue of the circumstances alone. However, it can be argued, only current and former cadets and Academy officials possess the frame of reference which would enable them to reconstruct the incidents described in the summaries, for only they had had access to these records originally. Under these conditions, one might conclude that disclosure of the summaries poses no greater threat to privacy than the Academy itself countenanced through limited distribution and official posting of the items, and that it therefore constitutes no “invasion” at all. This reasoning was substantially the basis of the district court ruling that Exemption Six did not bar disclosure.

This approach, however, ignores certain practical realities. First, a person’s privacy may be as effectively infringed by reviving dormant memories as by imparting new information. Cf. Prosser on Torts 827-28 (4th ed. 1971). For example, a senior officer and ex-cadet might, upon reading a summary or a reference to it, realize for the first time that a man under his command had once been the subject of Academy discipline. It would be cold comfort to the junior officer to be told that his chief had always “known” this fact anyway, although he had long forgotten it or had never made the ultimate connection among various bits of knowledge until the article jogged his recollection.

Then, too, publication of even anonymous summaries could expose the histories of formerly accused cadets to persons other than Air Force officers. Despite the continuing injunction of secrecy, no one can guarantee that all those who are “in the know” will hold their tongues, particularly years later when time may have eroded the fabric of cadet loyalty. Finally, we must remember that none of the parties to this lawsuit is committed first and foremost to the interests of affected cadets. It is no slur on appellees to note that they are primarily defending the integrity of their own procedures while appellants, of course, are pressing for disclosure. In these circumstances, we will not hold that the Agency’s internal dissemination of the summaries lessens the concerned cadets’ right to privacy, as embodied in Exemption Six.

However, while release of even nameless case histories might constitute an “invasion” of protected interests, the inquiry does not end there. The statute requires the Agency to show that the invasion is “unwarranted” — indeed, that it is “clearly” so. The only opinion at all in point, Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971), held that law professors engaged in an NLRB voting study could compel that agency to provide them with names and addresses of eligible employee voters since disclosure would not entail an impermissible intrusion into privacy. But Getman was a much stronger case for plaintiffs than ours since release of the desired information would subject the employees named to nothing more than a telephone request to submit to a voluntary interview. 450 F.2d at 674-675. Here, by contrast, identification of disciplined cadets — a possible consequence of even anonymous disclosure — • could expose the formerly accused men to lifelong, embarrassment, perhaps disgrace, as well as practical disabilities, such as loss of employment or friends. Viewing this potential for serious harm from the perspective of our society’s expanding concern for the protection of privacy, cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), we refuse to hold that appellees must now, without any prior inspection by a court, turn over the summaries to appellants with only the proper names removed. Such a procedure — posing, as it does, grave risks to the reputations of affected cadets — might “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

In order to keep faith with the Act’s overall mandate, however, we equally decline to hold at this time that Exemption Six covers all, or any part of, the summaries in issue. Rather, we follow appellants’ alternative suggestion and remand with instructions to the district court to conduct an in camera inspection of the Honor and Ethics Code case histories, which it has never examined. Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, cert, denied, 400 U.S. 824, 91 S.Ct. 46, 27 L. Ed.2d 52 (1970). Under 5 U.S.C. § 552(a)(3), see note 9 supra, the “burden” was on the Agency “to sustain its action” in failing to make the case summaries available. Having failed to carry that burden of justification under Exemption Six in the trial court by means of affidavits or testimony, the Agency must now produce the summaries themselves in court, Environmental Protection Agency v. Mink, 410 U.§. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and cooperate with the judge in redacting the records so as to delete personal ref-erenees and all other identifying information. Cf. 5 U.S.C. § 552(a)(2). The practice of furnishing abstracts of cases, while preserving anonymity, is not unknown to the law. We think it highly likely that the combined skills of court and Agency, applied to the summaries, will yield edited documents sufficient for the purpose sought and sufficient as well to safeguard affected persons in their legitimate claims of privacy.

We cannot close this section of the opinion without one further comment. We have read out brother Moore’s dissent with a sense of wonderment, since it states that we place our “stamp of approval upon” an “egregious invasion of constitutional rights of privacy.” We, of course, do no such thing. We have refused to hold, in the second paragraph before this one, that the Agency is required, without any prior inspection by a court, to turn over the summaries to appellants with only the proper names removed. In addition, we have stated immediately above that personal references and all other identifying information should be deleted from the case summaries. If, in the opinion of the district judge, this is not sufficient to safeguard privacy, then the summaries should not be disclosed to appellants. Obviously, the problem would be a simple one if the Freedom of Information Act did not exist or if the only interest to be considered were that of the cadets. But construing Exemption Six is a much more complex process than is indicated by the dissent which fails to refer to the legislative history of the Act, the policy behind it or the cases construing it. In any event, we believe that the in camera procedure required here will further the statutory goal of Exemption Six: a workable compromise between individual rights “and the preservation of public rights to Government information.” House Rep. 11, 1966 U.S.Code Cong. & Admin.News p. 2428

IV

As a final point, the Agency contends that the courts have a broad equitable power to decline to order release when disclosure would damage the public interest, and urges that we exercise this jurisdiction to withhold the summaries completely. Judge MacMahon rejected this argument, holding that Congress did not leave to the courts a general option of refusing to enforce the Act’s requirement of disclosure even though no statutory exemption applies.

Much ink has been spilled on this issue, both by courts and commentators, and we are told that the legislative history is indeterminate and that the appellate decisions are divided. We are not sure how real the conflict is in most instances, since even the courts that are cited as opposing the notion of general equity power to refuse disclosure recognize that a truly exceptional case might require it. Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657, 662 (6th Cir. 1972); Soucie v. David, 145 U.S. App.D.C. 144, 448 F.2d 1067,1077 (1971). It may be that the true controversy is over the definition of an exceptional case, since we are clear that generally the Act constrains the use of broad judicial discretion to block disclosure. Cf. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (dictum — broad equitable power to enforce the Act). In any event, in the context of Exemption Six the issue is not a substantial one, since the language of the exemption requires a court to exercise a large measure of discretion. This was pointed out by the Court of Appeals for the District of Columbia Circuit, a court frequently cited for the view that the federal courts have no general equitable jurisdiction to refuse disclosure when no exemption applies:

“Any discretionary balancing of competing interests will necessarily be inconsistent with the purpose of the Act to give agencies, and courts as well, definitive guidelines in setting information policies. . . . But Exemption (6), by its explicit language, calls for such balancing and must therefore be viewed as an exception to the general thrust of the Act. S.Rep., at 9, explains:
“The phrase ‘clearly unwarranted invasion of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information. The application of this policy should lend itself particularly to those Government agencies where persons are required to submit vast amounts of personal data usually for limited purposes. * * * ”
We note in passing that no other exemption specifically requires balancing. In view of the Act’s basic purpose to limit discretion and encourage disclosure, we believe that Exemption (6) should be treated as unique, and that equitable discretion should not be imported into any of the other exemptions. .

Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 674 n. 10 (1971).

We have already decided that disclosure of the case summaries would not be “a clearly unwarranted invasion of personal privacy” under Exemption Six, if the summaries are redacted as set forth above. We agree with the court in Get-man that no further balancing is necessary.

Accordingly, we reverse and remand for further proceedings, consistent with this opinion and expedited pursuant to the command of 5 U.S.C. § 552(a)(3).

MOORE, Circuit Judge

(dissenting) :

I must express a most vigorous dissent to the majority’s judicial stamp of approval upon the egregious invasion of constitutional rights of privacy which their opinion authorizes. At a time when the courts are more and more being called upon to protect an individual’s character from being unnecessarily besmirched, when much is being said and written about prison rehabilitation, I am amazed that any court should countenance — much less authorize — the curiosity satisfying efforts of three law school students who, merely to write a Law Review note, would pry into and seek to disclose the former transgressions of Air Force cadets. This is not a case in which the courts can attempt to justify their interposition on the theory that Congress has failed to act and that, therefore, the courts must legislate. Here there is a definite statute of prohibition which the majority now overrides.

When an Air Force cadet is accused of lying, stealing or cheating at the Academy, he is protected by the greatest possible confidentiality. This may arise in part from the fact that this charge has been made possible by the principle of toleration which in grammar schoolyard parlance means “tattletale” or as phrased in the record as “The backbone of the Honor Code is the toleration clause which requires that every cadet report any suspected violation of the Code” (App. 120). Thus, not only must the cadet be protected but also the non-tolerator (tattler).

The hearings, as would be expected, are as sacrosanct as are (or should be) jury room proceedings, namely, “all matters discussed at the hearing are confidential and should not be discussed outside the room with anyone other than an Honor Representative” (App. 164-65). The summaries of each case are kept confidentially restricted except in a small area.

In passing the Freedom of Information Act, 5 U.S.C. § 552, Congress carefully and specifically excluded from public gaze:

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy

If doctor-patient files are protected, how much the more should files dealing with quasi-criminal or possible character-besmirching facts to be kept secret. The disclosure of disease, be it venereal or mental, can be remedied or cured. The drawing of a bar sinister across the escutcheon of a young man entering upon his life’s career, cannot be erased.

The Air Force officials, mindful of their duty to protect their cadets, responded in a manner which should have received the highest judicial commendation instead of disapproval. The Academy’s Honor and Ethics Executive, in rejecting plaintiffs’ request for the case summaries, stated:

I regret that Academy policy requires denial of public access to honor case files, including selected ones in the Honor Code Reading Files. All of these cases are documented as ‘For Official Use Only’ and are disseminated for internal use only to the Honor Representatives and those few staff personnel who have a continuing need to understand the workings of the Cadet Honor Code. It would be in poor faith with all cadets who have met honor hearings to allow their cases to come into the public eye. To permit the use of honor cases for such purpose would tend to set a precedent that may operate to the detriment of innocent persons.
To be accused or found guilty of an honor violation is an emotionally trying experience that should, in due respect for the rights of the individual concerned, be as limited as possible. Society in general does not understand the difference in the lying, cheating and stealing that constitutes a Cadet Honor violation as opposed to the degree of criminality required in society at large to cause an equally serious type of censor [sic: censure]. The problems of such misunderstanding and the unnecessary embarrassment that could result seems to exceed the value to be gained from making the case files available to the public.

In denying the request, the Commandant of Cadets stated (App. 30):

The Air Force Academy will be unable to provide you sample ethics cases. The sample ethics cases used in the Honor Code Reading File are designated ‘For Official Use Only’. It is intended that these cases will be used for the edification of the Cadet Wing and Academy staff only. Indiscriminate release of this information to persons without a need to know could be counter to the best interest of the individuals concerned and the Air Force Academy.

When the request reached the Office of the Secretary of the Air Force, the futility of any attempted deletion was pointed out in the statement (App. 35):

A release of the honor hearing eases and ethics cases would constitute an unwarranted invasion into the privacy of former cadets of the Academy. Some cases may be recognized by the reader by the circumstances alone without the identity of the cadet given. This being the case then the reader could easily connect the incident with the particular cadet involved. Additionally, they are internal documents which are not meant for mass circulation. They are stamped ‘For Official Use Only’ and are afforded subscribed routing and handling procedures.

The reasons for confidentiality and non-disclosure cannot be better summarized than by the Commandant’s Executive for Honor and Ethics, who stated:

There is no way of determining just how these facts will or could be used. This data could find its way to the relatives, friends and classmates of cadets and supply the missing link in disclosing the identity of a guilty cadet. No person who has made a mistake and been punished should have to have this mistake follow him for the rest of his life.

And, indeed, merely to satisfy the desire of plaintiffs to write a Law Review note, no court should aid and abet a project which could result in having a cadet’s “mistake follow him for the rest of his life.” (App. 211a).

Deletion of names suggested by the majority would be of no avail. In addition to names, identifiable facts would have to be eliminated. Eliminating all determinative essentials would only create a hypothetical situation.

As the Commandant of Cadets so logically explained:

The use of these case files or write-ups, even if the identity of the individual were not given, could still be an invasion of privacy as the incident may have been so notorious that the reader would immediately recognize the cadet who was the subject of the Honor or Ethics Hearing. In certain instances, the Cadet Wing has given the Honor Committee the prerogative to grant discretion to a cadet who has been voted guilty and to allow him to return to the Cadet Wing. The man who has learned his life-long lesson of honor can be a great asset to the Wing and to the Air Force. His retention is therefore not only justified; it is desired. . . . Therefore, every effort is made to avoid disclosure of the cadet’s name so that he may return to the Wing unblemished to continue his education.

The majority recognize that their decision even with anonymous disclosure “could expose the formerly accused men to lifelong embarrassment, perhaps disgrace, as well as practical disabilities, such as loss of employment or friends.” These accused cadets are the real parties in interest; yet, as the majority concedes, “none of the parties to this lawsuit is committed first and foremost to tlie interests of affected cadets.” Even the unborn child is in many situations entitled to his (or her) guardian ad li-tem and Gideon was deemed to be entitled to be heard through counsel. But accused cadets are to be subjected to possible lifelong disgrace or loss of employment without any spokesman.

Of course, Congress never intended any such result. Nor does the Act so decree. Lest any implication to this effect might be gleaned therefrom, Congress wrote therein a specific prohibition against an “unwarranted invasion of personal privacy.”

Consider briefly the majority’s suggested protection against “this potential for serious harm”. First, the Air Force must remove from all case summaries, estimated in open court as involving one hundred to two hundred summaries, all proper names. Then these nameless but not factless summaries are to be turned over to the District Court. There the majority are sure that “the combined skills of court and Agency, * * * will yield edited documents * * * sufficient * * * to safeguard affected persons in their legitimate claims of privacy.” But for what purpose and at what cost? The purpose is clear, i. e., to have the Air Force and the District Court co-author a student contribution to a legal periodical. Time cost is another matter. Assuming only one hundred and fifty summaries, vital name excision should be capable of accomplishment in ten minutes per summary — an inconsequential twenty-five hours. However, careful Court editing to eliminate identifying facts would be much more time-consuming. Seventy-five hours of Court time would be conservative. In these days when there is so much clamor about the desirability of speedy trials, I am unwilling to subscribe to, or acquiesce in, any opinion which saddles such a needless burden upon an important branch of our military forces and, in my opinion, an equally important judicial branch. Hence, I dissent.

      . See Associated Indus. of N. Y. S., Inc. v. United States Dep’t of Labor, 487 F.2d 342, 344-345 & n. 1 (2d Cir. 1973), and statutes cited therein.

      . Its tentative title is “The Administrative Adjudicatory Systems of the Service Academies : Constitutional Powers and Limitations.”

      . The Air Force also relied on the corresponding Air Force Regulations, A.F.R. 12-30.4f and 12-30.4g(l) (b), 32 C.F.R. § 806.-5(f), (g)(1) (ii) (1972).

      . The district court granted appellants summary judgment with regard to the third item requested, a complete study of resignations by Academy graduates from the Air Force. Appellees have already complied with this portion of the court’s directive, and thus do not appeal from it.

      . 80 Stat. 250 (1966), codified by 81 Stat. 54 (1967), 5 U.S.C. § 552.

      . Environmental Protection Agency v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). See also S.Rep.No.813, 89th Cong., 1st Sess. 3, 4-6 (1965) [hereinafter Senate Rep.] ; H.R.Rep.No.1497, 89th Cong., 2d Sess. 4-6 (1966), U.S.Code Cong. & Admin.Ñews 1966 p. 2418 [hereinafter House Rep.] ; Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act, quoted in 20 Admin.L.Rev. 263-316, at 267-68 (1968). See generally Note, The Freedom of Information Act: Shredding the Paper Curtain, 47 St. John’s L.Rev. 694 (1973) [hereinafter St. John’s Note],

      . Former section 3 of the APA, 5 U.S.C. § 1002 (1964), provided for disclosure only “to persons properly and directly concerned.” Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 765 (1967) [hereinafter Davis].

      . 5 U.S.C. § 552(b) lists the exemptions from compulsory disclosure. It states:
      This section does not apply to matters that are—
      (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
      (2) related solely to the internal personnel rules and practices of an agency;
      (3) specifically exempted from disclosure by statute;
      (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
      (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
      (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
      (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
      (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
      (9) geological and geophysical information and data, including maps, concerning wells.

      . 5 U.S.C. § 552(a) (3) reads as follows :
      Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing at the earliest practicable date and expedited in every way.
      5 U.S.O. § 552(c) provides;
      This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

      . See generally Project, Federal Administrative Law Developments — 1972, Developments Under the Freedom of Information Act — 1972, 1973 Duke L.J. 178, 187-89 [hereinafter Duke Project] ; St. John’s Note 716-17; Davis 785-86.

      . Davis 762-63, 785-86; St. John’s Note 697. See Hawkes v. Internal Revenue Service, 467 F.2d 787, 794 (6th Cir. 1972), pointing out, inter alia, that the Senate Report furnishes the surer guide to congressional intent since it alone was before both Houses (the Senate passed the bill first); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 673 n. 8 (1971), and cases cited therein.

      . See, e. g., Tietze v. Richardson, 342 F. Supp. 610 (S.D.Tex.1972) (Social Security claims processing guidelines) ; Cuneo v. Laird, 338 F.Supp. 504 (D.C.D.C.1972) (“play-book” parts of contract audit manual), remanded sub nom. Cuneo v. Schlesinger, 484 F.2d 1086 (D.C.Cir.1973); Concord v. Ambrose, 333 F.Supp. 958, 960 (N. D.Cal.1971) (law enforcement agent training manual) (dictum). »

      . Appellees’ brief at 26 & n. 9.

      . The Honor Reference Handbook of the Air Force Cadet Wing states that, by vote of six out of eight Honor Representatives, a cadet may- be found guilty with discretion and returned to the Wing in good standing. A discretion vote indicates a “conviction that the man has learned a lifelong lesson and that he will thereafter uphold the ethical standards of the Wing.” Honor Reference Handbook 44 (1970).

      . But cf. A.F.R. 12-30.g(2) (a), 32 C.F.R. § 806.5(g) (2) :
      In determining whether the release of information would result in a clearly unwarranted invasion of privacy, consideration should be given, in cases such as those involving alleged misconduct, to: (i) The amount of time that has passed since the alleged misconduct ....

      . See Note, Invasion of Privacy and the Freedom of Information Act: Getman v. NLRB, 40 Geo.Wash.L.Rev. 527 (1972). We have found only three other appellate decisions dealing with Exemption Six, only one of which — Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973) — reaches the merits of the claim. Cf. Ackerly v. Ley, 137 U.S.App.D.C. 133, 420 F.2d 1336 (1969); Tuchinsky v. Selective Serv. Sys., 418 F.2d 155 (7th Cir. 1969).

      . This section, which requires, inter’ alia, publication of final opinions, statements of policy and administrative staff manuals, contemplates agency deletion of identifying details “[t]o the extent required to prevent a clearly unwarranted invasion of personal privacy. . . . ”

      . See, e. g., Revenue Rulings collected in Cum.Bull. of the IRS; ABA, Opinions on Professional Ethics (1967).

      . It was estimated at oral argument that there were 100-200 summaries.

      . Cf. House Rep. 11, 1966 U.S.Code Cong. & Admin.News, p. 2428:
      The exemption [six] is . . . intended to cover detailed Government records on an individual which can be identified as applying to that individual and not the facts concerning the award of a pension or benefit or the compilation of unidentified statistical information from personal records. [Emphasis added.]

      . Moreover, despite the dissent’s gloomy prediction, we do not envision a need for dozens of hours of hard labor by judicial and military officers. On the contrary, once agreement is reached on general principles of redaction, the actual process of editing the summaries should not take undue amounts of time.

      . Compare House Rep. 9 with Senate Rep. 3.

      . Thus, Duke Project 178-79 n. 9 states that the Fourth, Sixth and D.C. Circuits reject the idea of a general equitable jurisdiction and the Fifth and Ninth Circuits support it. Compare Robles v. Environmental Protection Agency, 484 F.2d 843, 847 (4th Cir. 1973); Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657, 661-662 (6th Cir. 1972); Hawkes v. Internal Revenue Service, 467 F.2d 787, 792 n. 6 (6th Cir. 1972); Wellford v. Hardin, 444 F.2d 21, 24-25 (4th Cir. 1971); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 677-680 (1971; Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1076-1077 (1971), with Wu v. National Endowment for Humanities, 460 F.2d 1030, 1034 (5th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973); Benson v. General Serv. Administration, 415 F.2d 878 (9th Cir. 1969). But cf. Epstein v. Resor, 421 F.2d 930, 933 (9th Cir.), cert. denied, 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549 (1970) (limited role of courts under the first and third exemptions). Prof. Davis also believes in the existence of equitable power to refuse disclosure. Davis 767.

      . While this case was under advisement, we asked the parties to brief the question of mootness, in view of the possibility that publication of plaintiffs’ article would moot the issue. In their response, both sides affirmed their belief that the matter of disclosure of the case summaries was still properly before us. We agreed with this conclusion and therefore proceeded to consider the case on the merits.

      . Gideon v. Wainwright, 372 U.S. 325, 83 S.Ct. 792, 9 L.Ed.2d 799 (1933).


author: CAMPBELL, Senior District Judge. FAIRCHILD, Circuit Judge

text:
    Phyllis SCHLAFLY et al., Plaintiffs-Appellants, v. John A. VOLPE, Secretary of Transportation, et al., Defendants-Appellees.
    No. 72-1502.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 13, 1973.
    Decided Feb. 28, 1974.

      John F. Schlafly, Alton, 111., for plaintiffs-appellants.
    Robert A. Tingler, Asst. Atty. Gen., Chicago, 111., William J. Scott, Atty. Gen., William P. Ryan, Springfield, 111., David L. Norman, Asst. Atty. Gen., Denis F. Gordon, Atty., Dept, of Justice, Washington, D. C., Donald B. Mackay, U. S. Atty., Springfield, 111., for defendants-appellees.
    Before FAIRCHILD and PELL, Circuit Judges, and CAMPBELL, Senior District Judge.

      Senior Judge William Campbell of the United States District Court for the Northern District of Illinois is sitting by designation.

   CAMPBELL, Senior District Judge.

This suit challenges the legality of the suspension of federal funding applicable to certain highway construction projects in Madison County, Illinois, and the closing of several other Madison highway projects by Illinois officials. Plaintiffs appeal from an order granting defendants’ motions to dismiss. With respect to the federal officials named as defendants, the district court ruled that it had “no jurisdiction under the doctrine of sovereign immunity to order expenditure of federal funds or other such relief against government officials acting in their official capacity.” Regarding the state officials named as defendants, William Cellini and Richard Golterman, the district court found that Count I of the complaint failed to state a cause of action and that Count II had been rendered moot by S. I. B. A. v. Ogilvie, 327 F.Supp. 1154 (S.D.Ill.1971), aff’d 471 F.2d 680 (7th Cir. 1972). We reverse the dismissal of the federal defendants and affirm the dismissal of the state defendants.

Count I of the complaint alleges that plaintiffs are residents and taxpayers of Madison County, Illinois, and that on July 5, 1968 the Federal Highway Administrator of the Department of Transportation caused a written order to issue to the Illinois Department of Public Works and Buildings directing that all new federal-aid construction contract authorizations in Madison County be withheld. Among the reasons stated for this “freeze order” was the “failure to achieve substantial improvement in compliance with Federal laws and directives with reference to equal employment opportunity in the East St. Louis area.”

Count I alleges that pursuant to this order, all work was stopped for approximately two years on some fifteen highway and bridge construction projects which had previously been approved by the Secretary of Transportation. Plaintiffs contend that the “freeze order” was unlawful because it was not issued in compliance with the conditions set forth in Section 602 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-l, and that the order constituted a breach of the contractual obligations which plaintiffs contend were created upon approval by the Secretary of Transportation of the construction projects in question.

With respect to the Illinois officials named a.s defendants, Count II alleges that on January 20, 1971, Cellini and Golterman directed the closing of four other highway projects, financed in part by federal-aid funds, because of the “failure to have the required number of minority trainees on the job.” Again, plaintiffs allege that this action was unlawful because it was not taken in compliance with the provisions of § 602 of the Civil Rights Act of 1964.

42 U.S.C. § 2000d (§ 601 of the Civil Rights Act of 1964) provides that:

“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

42 U.S.C. § 2000d-l (§ 602 of the Civil Rights Act of 1964) directs federal departments and agencies empowered to extend federal financial assistance to any program or activity to “effectuate the provisions of section 2000d of this title ... by issuing rules, regulations or orders of general applicability which shall be consistent with the achievement of the objectives of the statute authorizing the financial assistance . . . ” .

§ 2000d-l requires that -such rules, regulations and orders shall be effective only upon approval of the President. It provides that compliance with any requirement so adopted may be effected:

“(1) by the termination of or refusal to grant or to continue assistance . to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination . shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non-compliance has been so found >>

Before termination of federal assistance under § 2000d-l may become effective, the statute requires that the department or agency concerned must have advised “the appropriate person or persons of the failure to comply with the requirement” and must have determined “that compliance cannot be secured by voluntary means . . .

Finally, § 2000d-l provides that no such agency action shall become effective until thirty days after the head of the federal department concerned has filed “with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action.”

The complaint alleges that several of these conditions precedent to the termination of federal assistance were not satisfied prior to issuance of the July 5, 1968 “freeze order,” and that the order was therefore unlawful. The defendants respond, inter alia, that plaintiffs lack standing to sue; that because the freeze order has since been cancelled, the issue is moot; and that plaintiffs’ claim is barred by operation of the doctrine of sovereign immunity, since the relief sought by plaintiffs includes the expenditure of federal highway funds.

1. THE FEDERAL DEFENDANTS.

(A) MOOTNESS

Defendants’ claim that the issues presented are moot may ultimately be established, but it cannot be sustained upon a motion to dismiss. Whether the alleged unlawful action by federal officials did, in fact, result in the loss of funds, and whether the construction projects involved have actually been resumed without any attendant loss of funds, are representative of the factual issues which clearly affect any determination of whether plaintiffs’ claims were mooted by cancellation of the “freeze order” on June 3, 1970. The district court apparently recognized the inappropriateness of dismissing this action as moot on the strength of the present record, and relied instead on the doctrine of sovereign immunity as the basis for dismissal.

(B) STANDING

Under § 209 of the Federal-Aid Highway Act of 1956, the “Highway Trust Fund” was created. The Act provides that specified percentages of highway taxes, (e. g., taxes on .gasoline, diesel fuel, tires, etc.) shall be appropriated to the Highway Trust Fund; these funds are then used to reimburse the various states for expenditures under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. The complaint alleges that plaintiffs are residents and taxpayers of Madison County, that four cents of the per gallon price of gasoline purchased by them is paid into the Highway Trust Fund, and that the funds which were suspended pursuant to the “.freeze order” of July 5, 1968 were payable from the Highway Trust Fund for the construction projects in question. Plaintiffs argue that because taxes which they are obliged to pay are used to fund the highway projects subject to the “freeze order,” they are “aggrieved” persons within the meaning of § 603 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-2, and therefore have standing to sue.

In Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L.Ed.2d 947 (1968), the Supreme Court thoroughly examined the concept of standing in the context of taxpayer suits, stating that “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” 392 U.S. at 101, 88 S.Ct. at 1953. The test enunciated in Flast to determine “the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation” 392 U.S. at 101, 88 S.Ct. at 1953, was subsequently adopted in a somewhat modified form in two cases which, unlike Flast, were not concerned with the constitutionality of a federal statute, Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Justice Douglas, speaking for the Court, viewed the issue of standing in those cases as involving two separate but related questions:

(1) “The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.” 397 U.S. at 152, 90 S.Ct. at 829.
(2) The second question concerns “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question.” 397 U.S. at 153, 90 S. Ct. at 830.

In the instant case, plaintiffs’ payment of taxes specifically ear-marked for the Highway Trust Fund, the subsequent suspension in payment of such funds for all highway construction projects in the county wherein plaintiffs reside, and the allegation that the “freeze order” suspending the funds was illegal, combine to satisfy both criteria enunciated in Data Processing and Barlow. Plaintiffs have clearly suffered an alleged economic “injury” through the payment of fuel taxes, as well as non-economic injury owing to the loss of improved highways on which to travel. We are also satisfied that the interests sought to be protected are within the “zone of interests” to be protected under the Civil Rights Act of 1964, particularly since 42 U.S.C. § 2000d-2 provides for judicial review on behalf of “any person aggrieved” by action taken pursuant to § 2000d-l. In so providing, § 2000d-2 includes within the zone of interests to be protected the interests of virtually all persons satisfying the first requirement of standing, for if the challenged action has injured plaintiffs, economically or otherwise, they must be considered persons “aggrieved” within the meaning of § 2000d-2.

(C) SOVEREIGN IMMUNITY

The defendants’ assertion that this action is barred by the doctrine of sovereign immunity compels us to examine one of the more ill-defined aspects of federal jurisdiction. Perhaps the only irrefutable statement that can be made regarding this doctrine is that it appears to offer something for everyone. In anticipation of the government’s cry that the sovereign cannot be sued without consent, complaints are drawn with a covetous eye on the doctrine’s “exceptions,” only to be confronted with assertions that the facts present an “exception to the exception,” Zapata v. Smith, 437 F.2d 1024 (5th Cir. 1971), or “qualify” the exceptions, Knight v. State of New York, 443 F.2d 415 (2nd Cir. 1971), or that entertainment of the plaintiff’s claim would create an “intolerable burden on governmental functions,” requiring use of the doctrine despite its otherwise applicable exceptions, State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). Warnings that absent sovereign immunity, government would be “stopped in its tracks,” Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), are countered with no less persuasive arguments that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).

As Judge Winter noted in Littell v. Morton, 445 F.2d 1207, 1212 (4th Cir. 1971), “the authorities are not reconcilable, and there are conceptual conflicts in various holdings . . .”. Judge McGowan’s remarks in Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122, 448 F.2d 1045, 1051 (1971) are equally appropriate:

“The doctrine itself is in a considerable state of disrepair, at least in terms of intellectual respectability; and it is hardly in the original condition of pristine purity which once made it such a useful tool for Government lawyers seeking to dispense with trials on the merits.”

The conceptual conflicts and lack of intellectual respectability referred to by Judges Winter and McGowan are best understood with reference to the leading Supreme Court cases and pertinent Courts of Appeals decisions.

Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), relied upon by the district court in the instant case, involved a suit against the War Assets Administrator. The Court held that, because the relief sought involved the disposition of property of the United States, the action was one against the sovereign and, applying the doctrine of sovereign immunity, the Court affirmed dismissal of the suit. The Court noted that:

“the area of .controversy is entered when the suit is not one for damages but for specific relief: i. e., the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions. In each such case the question is directly posed as to whether, by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign.” 337 U.S. at 688, 69 S.Ct. at 1460.

The Court then set forth two exceptions to the doctrine’s applicability:

(1) “[Wjhere the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions .... His actions are ultra vires his authority and therefore may be made the object of specific relief.” 337 U.S. at 689, 69 S.Ct. at 1461.
(2) “A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign’s name is claimed to be unconstitutional.” 337 U.S. at 690, 69 S.Ct. at 1461.

In what has become Larson’s famous and debatable footnote 11, the court added:

“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief . will require affirmative action by the soverign or the disposition of unquestionably sovereign property . . .”. 337 U.S. at 691, 69 S.Ct. at 1462.

Larson was subsequently followed in Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L.Ed.2d 168 (1962), wherein the court found neither of the Larson exceptions applicable and therefore directed that an action of ejectment against a Department of Agriculture official be dismissed.

The following year, the Court decided Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), a suit for in-junctive relief by water rights claimants against officials of the U. S. Bureau of Reclamation. The Court held the action to be one against the United States, citing the “general rule” that a suit is one against the sovereign “if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ ... or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act,’ . . .”. 372 U.S. at 620, 83 S.Ct. at 1006.

The Court further held that, under the facts in Dugan, the federal official’s conduct did not fall “within either of the recognized exceptions to the above general rule .... Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manners in which they are exercised are constitutionally void.” 372 U.S. at 621-622, 83 S.Ct. at 1007.

Although the instant case purports to assert a claim against federal officials, and not directly against the United States, it quite clearly involves a suit against the sovereign. The relief sought contemplates that funds allegedly diverted as a result of the 1968 “freeze order” be restored and made available for the construction of certain highway projects previously approved by the Secretary of Transportation.

Since the “judgment sought would expend itself on the public treasury or domain,” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), the fact that the United States is not named as a party is irrelevant to the question of whether this action is one against the sovereign. Accordingly, the doctrine of sovereign immunity operates to deprive the court of jurisdiction unless (1) the defendants have acted beyond their statutory powers, (2) the powers exercised by the defendants (or the manner in which they were exercised) are constitutionally void, or (3) the government has consented to be sued.

In the instant case, plaintiffs have clearly alleged ultra vires conduct on the part of federal officials. The substance of Count I of the complaint is that the action taken by the defendants was beyond their statutory authority, since termination of federal assistance is not authorized by 42 U.S.C. § 2000d-l unless the conditions precedent to such action have been satisfied. But the implications of Larson’s footnote 11, as construed by various Courts of Appeals, serve to confuse what might otherwise be a simple process of logical deduction.

As previously indicated, footnote 11 advised that “a suit may' fail” even though federal officials have acted in an ultra vires manner, if the relief sought “will require affirmative action by the sovereign.” In reliance upon the language of footnote 11, some courts have held the doctrine applicable in any instance in which the relief sought contemplates affirmative action by the sovereign or the disposition of sovereign property. For example, in Knight v. State of New York, 443 F.2d 415 (2nd Cir. 1971), the court reasoned that footnote 11 “qualified” the exceptions set forth in the main body of the Larson Opinion, and held that where the relief sought would have required the disposition of sovereign property, the doctrine of sovereign immunity was applicable. Similarly, the Fifth Circuit has held, under like circumstances, that footnote 11 represents “a well recognized exception to the exception which applies to this case . . .”. Zapata v. Smith, 437 F.2d 1024, 1025 (5th Cir. 1971).

The inclination to close the courthouse doors to litigants solely because affirmative action may be required on the part of the government, however, is not as “well recognized” as the Zapata decision implies. In Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122, 448 F.2d 1045 (1971) and State Highway Commission of Missouri v. Volpe, 479 F.2d 1099 (8th Cir. 1973), the courts reasoned that “affirmative relief” was not being sought; rather, the cessation of unauthorized conduct by federal officials was held to be the object in each case. The language of footnote 11 was therefore found inapposite. While this reasoning may have achieved a desired result, it lends credence to Judge McGowan’s concern regarding the doctrine’s lack of “intellectual respectability,” particularly considering the fact that in Volpe, the relief sought was, as here, the restoration of federal highway construction funds.

A better reasoned approach to this problem is reflected in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969), wherein the State of Washington sought to obtain judicial review of an administrative decision by the Secretary of the Interior that Washington was not entitled to the delivery of water from the Columbia Basin Project to more than 160 acres of certain state-owned lands.

The Udall court reasoned that “a suit may fail,” does not mean that a suit must fail, and ruled that Larson “indicated no intent to overrule a long line of cases wherein such relief was granted against the Government.” 417 F.2d at 1317. See cases cited at 417 F.2d 1317 and 1318.

The Udall court concluded that footnote 11 envisioned the possibility of applying the doctrine of sovereign immunity, even though the official’s alleged conduct is ultra vires, where “the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm.” 417 F.2d at 1318. The court found no such intolerable burden in Udall.

We consider the reasoning in Udall persuasive, primarily on the basis of Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Dugan cited Larson for the “general rule” that sovereign immunity is a bar “if ‘the judgment sought would expend itself on the public treasury or domain’ . . .”. 372 U.S. at 620, 83 S.Ct. at 1006. Du-gan then noted the “recognized exceptions to the . . . general rule,” in-eluding “action by officers beyond their statutory powers.” To hold that the prospect of requiring the expenditure of federal funds nonetheless creates an “exception to the exception” would invite a thoroughly circular and untenable application of the doctrine. Accordingly, we construe footnote 11 as recognizing that the doctrine may bar a suit in exceptional cases (i. e., where to do otherwise would impose “an intolerable burden on governmental functions, outweighing any consideration of private harm”). This seems to us to represent a far more reasonable view.

As in Udall, we find no such intolerable burden in the instant case. The construction projects involved here were all allegedly approved by the Secretary of Transportation prior to the issuance of the “freeze order.” Pursuant to 23 U.S.C. § 106, the Secretary’s approval created “a contractual obligation of the Federal Government for the payment of its proportional contribution thereto.” State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1108 (8th Cir. 1973). The single source from which this contractual obligation can be satisfied is the Highway Trust Fund. As the Volpe court noted, the “resultant release of funds is only to the extent that Congress has already authorized them to be appropriated and expended.” 479 F. 2d at 1123.

The doctrine of sovereign immunity is also inapplicable, of course, where the government has consented to be sued. But even this self-evident proposition assumes a measure of vagueness when considered in terms of what constitutes consent, an issue which has often been raised in terms of the Administrative Procedure Act. Section 702 of the Act provides that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

Section 704 provides, in part, that agency action “made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” And Section 701(a) provides that the APA applies in all cases except to the extent that:

“(1) statutes preclude judicial review ; or

(2) agency action is committed to agency discretion by law.”

One question regarding which there exists a clear conflict among the Circuits is whether the APA constitutes a waiver of sovereign immunity. The Second Circuit has so held in Kletsehka v. Driver, 411 F.2d 436 (2d Cir. 1969), as has the Court of Appeals for the District of Columbia in Seanwell Laboratories v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970) Estrada v. Ah-rens, 296 F.2d 690 (5th Cir. 1961), held that the APA “makes a clear waiver of sovereign immunity in actions to which it applies,” 296 F.2d at 698, but the Fifth Circuit apparently abandoned this position in Colson v. Hickel, 428 F.2d 1046 (5th Cir. 1970), without expressly overruling Estrada. The First, Fourth, Eighth, Ninth, and Tenth Circuits have held that the APA does

not constitute a waiver of sovereign immunity.

To the extent that the Supreme Court has thus far considered the impact of the APA upon the jurisdiction of federal courts to review agency decisions, little guidance has been given. In Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970); and Abbott Labora-3 tories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the APA was held applicable and administrative decisions were held reviewable. While none of these cases involved the expendí-. ture of federal funds or the transfer of government property, the absence in each case of any discussion regarding sovereign immunity is unfortunate, particularly since Larson, Malone and Du-gan were each decided after enactment of the APA without any mention of its provisions. In each of latter cases, judicial review of agency action was prohibited by application of the doctrine of sovereign immunity.

The need for a definite statement by the Supreme Court regarding the impact of the APA on the doctrine’s continued viability was well stated in Littell v. Morton, supra:

“Our task is magnified because we have been unable to find any ease in which the Supreme Court has sought to reconcile the notion of sovereign immunity with the fundamental concept of the APA that a person adversely affected by administrative action is presumptively entitled to judicial review of its correctness.” 445 F.2d at 1212.

It may be that the APA, standing alone, does not represent a waiver of sovereign immunity, but where, as here, the statute which defines the government's authority to take specific action also provides for judicial review of such action in accordance with the provisions of the APA, we believe the sovereign has consented to be sued. 42 U.S.C. § 2000d-l provides both the authority for and the conditions precedent to the suspension of federal assistance. 42 U.S.C. § 2000d-2 provides that “any person aggrieved . . . may obtain judicial review” of agency action which results in the suspension of federal financial assistance, in accordance with the provisions of the APA. It further provides that such agency action “shall not be deemed committed to unreviewable agency discretion,” thus precluding one of the exceptions to the applicability of the APA set forth in section 701(a) of the Act.

The clear intent of section 2000d-2 is to provide a forum for judicial review for persons aggrieved by the severe action authorized by § 2000d-l. It incorporates the provisions of the APA for the purpose of facilitating judicial review, but does not incorporate whatever limitations may be imposed upon the Act by the doctrine of sovereign immunity, since the government’s consent to be sued does not emanate from the APA, but rather from the very statute which provides authority for the challenged agency action.

Accordingly, having found that the government has waived sovereign immunity and, in any event, that the ultra vires exception renders the doctrine inapplicable, plaintiff’s action against these federal defendants is not barred by the doctrine of sovereign immunity.

The remaining contentions regarding dismissal of the federal defendants are easily resolved. It is asserted first that the authority of federal officials to suspend federal assistance is also authorized by Executive Order No. 11246, and that the Order has the same weight and sufficiency as that of a statute.

Part III of E.O. 11246 pertains to nondiscriminatory provisions in federally assisted construction contracts and prescribes the steps which must be taken by applicants as a condition to receipt of financial assistance. Section 303(b) provides for the suspension of financial aid in the event an applicant “fails and refuses to comply with his undertakings.”

The Order, however, is no less compelling than is the Civil Rights Act of 1964 with respect to the limitations imposed upon federal agencies in connection with the suspension of federal financial assistance. Section 303(c) provides that

“Any action with respect to an applicant pursuant to Subsection (b) shall be taken in conformity with Section 602 of the Civil Rights Act of 1964 [42 U.S.C. § 2000d-l(b)] . . . to the extent applicable. In no case shall action be taken with respect to an applicant pursuant to Clause (1) or (2) of Subsection (b) [i. e., regarding suspension of or the refusal to extend financial assistance] without notice and opportunity for hearing before the . . . department or agency.”

Section 304 of the Order also provides that “actions to effect compliance by recipients of Federal financial assistance with requirements imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with the procedures and limitations prescribed in Section 602 thereof ft

In view of the foregoing, we see no distinction between action taken by a federal agency pursuant to 42 U.S.C. § 2000d-l and that taken pursuant to Executive Order No. 11246.

For some reason, the defendants argue that the “Civil Rights Act was not extended to federally funded highway construction until enactment of Section 140 of Title 23 of the Federal Aid Highway Act ... on August 23, 1968 . and ... at the time of the advent of the alleged freeze, equal employment opportunity . . . did not apply as complained of by the Plaintiffs-Appellants herein.” The language of Executive Order No. 11246, Part III, would certainly indicate to the contrary, but more fundamentally, the legality of suspending federal funds in July of 1968 for previously approved construction projects would certainly be suspect but for the fact that 42 U.S.C. § 2000d-l provides the authority for such action.

Defendants’ apparent purpose in relying upon 23 U.S.C. § 140 is to avoid the attendant conditions imposed by § 2000d-l. Section 140 provides that the Secretary of Transportation shall require that employment in connection with proposed highway projects be provided without regard to race, color, creed or national origin and simply clarifies the Secretary’s responsibility to obtain assurances of non-discrimination “prior to approving any program.” Nothing in Section 140 implies that the conditions set forth in § 2000d-l are not applicable to actions taken by the Secretary of Transportation which result in the suspension of financial assistance.

(II) STATE OFFICIALS

Count II of the complaint challenges the legality of an order dated January 22, 1971 which was caused to be issued by defendants Cellini and Goiter-man closing four highway construction projects in Madison County for “failure to have the required number of minority trainees on the job.” Plaintiffs assert that there is “no Federal or state law which empowers or authorizes the defendants to prescribe a required number of minority trainees on any job or to close down a job because of the absence of such trainees.” As in Count I, plaintiffs allege that the failure to satisfy the conditions set forth in Section 602 of the Civil Rights Act of 1964 renders the state officials’ actions unlawful.

Regarding plaintiffs’ contention that no federal or state law exists which authorizes these defendants to prescribe a required number of minority trainees to be employed by a contractor in connection with highway construction projects, little need be added to the excellent opinions authored by Judge Poos and Judge Sprecher in the “Ogilvie Cases,” S.I.B.A. v. Ogilvie, 327 F.Supp. 1154 (S.D.Ill. 1971) , aff’d 471 F.2d 680 (7th Cir. 1972) upholding the legality of the so-called Ogilvie Plan.

These opinions describe in detail “the inequality of minority representation in the highway construction industry with respect to the defendant unions.” 327 F.Supp. at 1157. Judge Poos viewed the Ogilvie Plan as “a realistic plan which realistically promises to work immediately. It provides a starting point by assuring that certain minorities are provided an equal employment opportunity.” 327 F.Supp. at 1159.

Authority for adoption of the Ogilvie Plan was described by Judge Sprecher as follows:

“Section 22(a) of the Federal Aid Highway Act of 1968 (23 U.S.C. § 140) requires the State of Illinois to adopt the Ogilvie Plan or one substantially like it with apprenticeship . programs without regard to race, color, creed or national origin, in order to participate in Federal-aid highway construction programs. Executive Order 11246 . . ., requires contractors desiring to participate in Federal-aid programs to take ‘affirmative action’ in regard to equal opportunity employment ....
“The obligation to take affirmative action imports more than the negative obligation not to discriminate. The Secretary of Labor is authorized to ‘adopt such rules, regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof’ (Sec. 201). The Secretary’s regulations require that contractors develop written affirmative action plans which shall ‘provide in detail for specific steps to guarantee equal employment opportunity . .. . ’.” 471 F.2d 684.

The four highway projects referred to in Count II were closed down “for noncompliance [by the unions] with the provisions of the construction contracts relating to the Ogilvie Plan .....” 327 F.Supp. at 1158. Whether these projects have since been resumed is unclear from the record before us, but suffice it to say that the legality of the Ogilvie Plan and of the federal statutes and Executive Order providing the authority therefore, dispels any illusion that there exists “no federal or state law” authorizing the prescription of a required number of minority trainees in connection with federal-aid highway projects. Plaintiffs have not alleged and the record does not disclose any indication that the closing down of the projects in question was done in a manner not contemplated and authorized under the Ogilvie Plan.

Plaintiffs’ contention that the action taken by state officials was unlawful because of their failure to fulfill the conditions set forth in Section 602 of the Civil Rights Act of 1964 is misplaced. Of critical importance is the distinction between the limited right of federal officials to suspend or terminate financial assistance to a state pursuant to Section 602, and the discretion afforded the state in allocating appropriated funds under a valid affirmative action program. Section 602 provides the authority for and the conditions precedent to the suspeñsíon or termination of federal assistance by federal officials. It neither empowers state officials to take such action, nor limits their right to do so pursuant to affirmative action programs authorized and developed pursuant to valid statutes or regulations, such as the Federal Aid Highway Act and the regulations issued pursuant thereto. As previously noted, the legality of the Ogilvie Plan has heretofore been upheld, and we are therefore satisfied that the district court’s dismissal of Count II and the state officials, on the basis of S.I.B.A. v. Ogilvie, supra, was correct.

Accordingly, the dismissal of Count II and the state officials named as defendants is affirmed, and dismissal of Count I and the federal officials is reversed and remanded for further proceedings consistent with the foregoing.

Affirmed in part,

Reversed in part.

FAIRCHILD, Circuit Judge

(dissenting in part, concurring in part).

I believe that plaintiffs lack standing to challenge this suspension of federal highway funds, and that, on the allegations in the complaint, the relief sought would impinge on sovereign immunity. Therefore, I respectfully dissent from the reinstatement of the count against the federal defendants. As to the state defendants, I concur in the result.

Plaintiffs claim injury from an act of a federal official allegedly ultra vires his statutory power. With respect to standing, “[t]he first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.” Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). I do not agree that payment by plaintiffs of the federal motor fuel tax, proceeds of which support highway construction, amounts to an injury in fact. The tax is one of general applicability and not contingent on the expenditure of federal funds in the fuel purchaser’s locality. See 26 U.S.C. §§ 4041, 4081. Plaintiffs aver that, in addition to being residents and taxpayers, one, an Association of Commerce, is a not-for-profit corporation, and one is a business manager of a union. They aver that the projects were “important” and “vitally needed.” Arguably, the delays in highway improvements in the vicinity of plaintiffs’ residences could constitute a type of noneconomic injury. The complaint, however, does not spell out any way in which the delay has actually harmed plaintiffs. The Supreme Court has indicated some strictness in requiring such allegations when standing depends on a claim of noneconomic injury. See Sierra Club v. Morton, 405 U.S. 727, 734-735, 92 S.Ct. 1361, 31 L. Ed.2d 636 (1972).

Moreover, even if the plaintiffs have standing, the averments of the complaint fall short of demonstrating that the relief they seek does not invade sovereign immunity. Federal officials set each state’s highway allocation and may refuse to authorize particular contracts. However, the power to channel federal funds to specific projects belongs to the state. See 23 U.S.C. §§ 104-105. The plaintiffs have not alleged that the suspension of funds for Madison County construction resulted in any money being withheld in the federal treasury. Their complaint is consistent with the federal defendants’ position that they paid Illinois the full amount of its allocation, but refused to permit any .expenditure in Madison County. If that is the situation, plaintiffs’ claim is, in essence, that defendants must obtain a new, supplementary appropriation of federal money and must direct that it be spent in Madison County. The federal defendants lack the power to direct the expenditure in Madison County. See 23 U.S.C. § 105. The appropriation of additional funds would require affirmative action and “disposition of property admittedly belonging to the United States.” Such relief is outside the exception to the sovereign immunity doctrine delineated in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). See State of Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963). As the plaintiffs have not alleged that the federal defendants control any specific funds which, but for the freeze, Illinois would have received, they have not avoided the bar of sovereign immunity.

I would affirm the district court’s dismissal of the complaint.

      . Section 602 of the Civil Rights Act of 1964 provides authority for the suspension or termination of federal financial assistance to any recipient failing to comply with rules, regulations or orders issued by a department or agency for the purpose of effectuating Section 601 of the Act (42 U.S.C. § 2000d), prohibiting racial discrimination under Federally assisted programs.
      Section 602 also sets forth certain requirements and conditions precedent to the issuance of such regulations and the suspension or termination of financial assistance. Plaintiffs complain that many of these requirements and conditions were not satisfied prior to the suspension of financial assistance in the instant case.

      . 23 U.S.C. § 120 note.

      . 42 U.S.C. § 2000d-2 provides, in part:
      “Any . . . action taken pursuant to section 2000d-l . . . shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating . . . financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section 2000d-l . . ., any person aggrieved . . . may obtain judicial review of such action in accordance with [the provisions of the Administrative Procedure Act. 5 USC § 701, et seq.] . ”

      . 5 U.S.C. § 701 et seq.

      . 5 U.S.C. § 702.

      . 5 U.S.C. § 704.

      . 5 U.S.C. § 701.

      . “Furthermore, the A.P.A. constitutes a waiver of sovereign immunity concerning those claims which come within its scope.” 411 F.2d at 445.

      . “It seems axiomatic to us that one must imply, from a statement by the Congress that judicial review of agency action will be granted, an intention on the part of Congress to waive the right of sovereign immunity; any other construction would make the review provisions illusory.” 424 F.2d at 874.

      . Cyrus v. United States, 226 F.2d 416 (1st Cir. 1955).

      . Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971).

      . Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967).

      . State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969).

      . Motah v. United States, 402 F.2d 1 (10th Cir. 1968).

      . Without any mention of sovereign immunity, the Court stated:
      “A threshold question — whether petitioners are entitled to any judicial review — is easily answered. Section 701 of the Administrative Proceduce Act, 5 U.S.C. § 701 . . ., provides that the action of ‘each authority of the Government of the United States,’ which includes the Department of Transportation, is subject to judicial review except when there is a statutory prohibition on review or where ‘agency action is committed to agency discretion by law.’ ” 401 U.S. at 410, 91 S.Ct. at 820.

      . 42 U.S.C. § 2000e, note.

      . Brief and Argument for Defendants-Ap-pellees State Officials, p. 8.

      . 42 U.S.O. § 2000d-l.

      . “An Agreement to Facilitate Equal Employment Opportunities in State Highway Construction in Madison and St. Claire Counties.”