author: McWILLIAMS, Circuit Judge.

text:
    COLORADO PUBLIC INTEREST RESEARCH GROUP, INC., a nonprofit Colorado Corporation, et al., Plaintiffs-Appellants, v. Russell TRAIN, as Administrator of the United States Environmental Protection Agency; and United States Environmental Protection Agency, Defendants-Appellees.
    No. 74-1154.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 13, 1974.
    Decided Dec. 9, 1974.

      David C. Mastbaum and James L. Kurtz-Phelan, Denver, Colo. (David E. Engdahl, Western Reserve Law School, Cleveland, Ohio, on the brief), for plaintiffs-appellants.
    Dirk D. Snel, Atty., Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., James L. Treece, U. S. Atty., William K. Hickey, Asst. U. S. Atty., and Edmund B. Clark and Michael D. Graves, Attys., Department of Justice, on the brief), for defendants-appellees.
    Jim Guy Tucker, Atty. Gen., Arkansas; Vem Miller, Atty. Gen., Kansas; Frank J. Kelley, Atty. Gen., Michigan, William M. Eichbaum, Deputy Secretary for Enforcement and General Counsel, Pennsylvania Dept, of Environmental Resources; and Slade Gorton, Atty. Gen., Washington, on the brief of The State of Arkansas, The State of Kansas, The State of Michigan, The Commonwealth of Pennsylvania, and The State of Washington, as amici curiae.
    Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., and Eldon G. Kaul, Special Asst. Atty. Gen., on the brief of The State of Minnesota, as ami-cus curiae, and joint brief of the Minnesota Pollution Control Agency, as amicus curiae.
    Before HOLLOWAY and MC-WILLIAMS, Circuit Judges, and CHRISTENSEN , District Judge.

       Of the District of Utah, sitting by designation.

   McWILLIAMS, Circuit Judge.

This is a citizen suit brought by plaintiffs against the United States Environmental Protection Agency, and Russell Train as its Administrator, wherein the plaintiffs, under the provisions of the Federal Water Pollution Control Act, as amended, sought to compel the Administrator to perform what was alleged to be a nondiscretionary duty to control discharges of radioactive materials into navigable waters. Both plaintiffs and defendants moved for summary judgment on the ground that there were no genuine issues of fact and both agreed that the sole issue was a pure question of law as to the meaning of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (Supp.1973). The trial court granted defendants’ motion for summary judgment and entered summary judgment for defendants. Plaintiffs now appeal the judgment thus entered. We reverse.

We are here concerned with the amendments made in 1972 to the Federal Water Pollution Control Act, and the regulations issued pursuant thereto. The amendments thus made to the Act will hereinafter be referred to as the 1972 Amendments. This is a statutory construction case, and accordingly we shall now refer to the particular statutes and administrative regulations with which we are here concerned.

33 U.S.C. § 1311(a) (Supp.1973) provides, in effect, that the discharge of any pollutant by any person into navigable waters shall be unlawful except in compliance with the various sections of the 1972 Amendments. Under 33 U.S.C. § 1342(a)(1) (Supp.1973) the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, upon the meeting of such conditions as the Administrator determines to be necessary to carry out the several provisions in the Act, as amended.

33 U.S.C. § 1362(6) (Supp.1973) defines “pollutants” and reads as follows:

“The term ‘pollutant’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) ‘sewage from vessels’ within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.” (Emphasis added).

The Administrator, pursuant to his obligations under 33 U.S.C. § 1342 (Supp.1973), issued regulations which became effective July 1, 1973, regarding permits to discharge pollutants. 40 C. F.R. § 125.1 (x) (1973) reads in pertinent part as follows:

“§ 125.1 Definitions “(x) The term ‘pollutant’ means * * * radioactive materials * * * discharged into water. [Fifteen other listed pollutants omitted.] * * *.
“COMMENT. — The legislative history of the [Federal Water Pollution Control] Act ‘Amendments of 1972’ reflects that the term ‘radioactive materials’ as included within the definition of ‘pollutant’ in section 502 of the Act covers only radioactive materials which are not encompassed in the definition of source, by-product, or special nuclear materials as defined by the Atomic Energy Act of 1954, as amended, and regulated pursuant to the latter Act. Examples of radioactive materials not covered by the Atomic Energy Act and, therefore, included within the term ‘pollutant’ are radium and accelerator produced isotopes. (H.R.Rep. 92-911, 92d Cong.2d Sess., 131, March 11, 1972; 117 Cong.Rec. 17401, daily ed., November 2, 1971; 118 Cong.Rec. 9115, daily ed., October 4, 1972.)”

The foregoing COMMENT is at the heart of the present dispute and perhaps deserves a rereading.

Another section of the 1972 Amendments, 33 U.S.C. § 1371(a) (Supp. 1973), relied on by the defendants, reads in pertinent part as follows:

“This chapter shall not be construed as (1) limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter-, * * (Emphasis added).

Although neither is a party to the present proceeding, the Atomic Energy Commission and the Public Service Company of Colorado are to a degree, at least, involved. The Atomic Energy Commission owns the Rocky Flats Plant located between Golden and Boulder, Colorado, which plant until recently has been operated for the Commission by the Dow Chemical Company. The Public Service Company of Colorado under license from the Atomic Energy Commission owns and maintains the Fort St. Vrain Nuclear Generating Station located at Platteville, Colorado. Radioactive materials, including “by-products materials,” “source material,” and “special nuclear material” are, or will be, discharged into navigable waters within the state of Colorado by operation of the Rocky Flats Plant and the Fort St. Vrain Nuclear Generating Station. We are advised that both nuclear facilities have applied to the EPA Administrator for a permit to authorize the discharge of liquid effluents into Colorado waters and that in each instance the Administrator, in line with the COMMENT set forth above, has refused to regulate the discharge of radioactive materials from these facilities.

It was in this general setting that the plaintiffs brought their citizen suit as provided in 33 U.S.C. § 1365(a)(2) (Supp.1973) against the Administrator seeking to compel him to exercise his regulatory duties under the 1972 Amendments as concerns the discharge of radioactive materials into navigable waters. It is the plaintiffs’ basic position that the statute means what it says, and that under the definition of “pollutant,” as set forth in 33 U.S.C. § 1362(6) (Supp.1973), it is the duty of the Administrator to regulate the discharge of all radioactive materials into navigable waters.

The defendants’ basic position is as set forth above in the COMMENT to 40 C.F.R. § 125.1 (x) (1973), namely, that those radioactive materials which are “by-product materials,” “source material,” and “special nuclear material” are not encompassed in the 1972 Amendments and are hence subject to only such regulation as is provided under the Atomic Energy Act of 1954. The trial court adopted the view of the Administrator and it was on this basis that summary judgment was entered for the defendants. We disagree with this disposition of the matter. Brief reference to the general law relating to statutory construction-may be helpful.

It is a basic rule of statutory construction that statutes are to be construed in a manner so as to effectuate the intent of the enacting body, and that in construing a statute the court should first look to the language of the statute itself. If the language is clear and the purpose appears with reasonable certainty, there is no need to resort to other rules of construction to ascertain its meaning. United States v. Ray, 488 F.2d 15 (10th Cir. 1973). An unambiguous statute must be given effect according to its plain and obvious meaning. United States v. Western Pacific Railroad Company, 385 F.2d 161 (10th Cir. 1967).

Another cardinal rule of statutory construction is that where the legislature has acted to except certain categories from the operation of a particular law, it is to be presumed that the legislature in its exceptions intended to go only as far as it did, and that additional exceptions are not warranted. In other words, where there be express exceptions to a statute, additional exceptions by implication are not favored. In re Monks Club, Inc., 64 Wash.2d 845, 394 P.2d 804 (1964), and Knapczyk v. Ribicoff, 201 F.Supp. 283 (N.D.Ill.1962). See also 2A Sands, Statutes and Statutory Construction, § 47.11 (4th ed. 1973), where it is stated that when there is an express exception to a statute, no other exceptions will be implied. See also § 47.07 in that same treatise which states, in part, that a statute which declares what a term “means,” is to be given a strict interpretation and is not subject to expansion. Here, the statute declares not only what the term pollutant “means,” but what it “does not mean.”

And a final rule of construction which has applicability to the present controversy is that the legislative history of a statute cannot be used to change the meaning of a clear and unambiguous statute. United States v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961), and Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207 (1949). Or, as was well stated in Gemsco, Inc. v. Walling, 324 U.S. 244, at 260, 65 S.Ct. 605, at 615, 89 L.Ed. 921 (1945), “the plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” See also United States v. Zions Savings & Loan Association, 313 F.2d 331 (10th Cir. 1963), and Haskell v. United States, 241 F.2d 790 (10th Cir. 1957).

Keeping these general rules in mind let us look at the various statutory provisions with which we are here concerned. It was the expressed general intent of Congress in the 1972 Amendments to enact a comprehensive program looking towards the eventual elimination of all pollution of the Nation’s waterways so as to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 (Supp.1973). And the term “pollution” was defined as meaning “the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water.” 33 U.S.C. § 1362(19) (Supp.1973). The EPA Administrator was generally charged with carrying out the intent behind the 1972 Amendments, and was specifically charged with the administration and enforcement of the several provisions of the statute.

In essence the sections referred to at the outset of this opinion prohibit the discharge of pollutants into navigable waters unless a permit to do so be granted by the EPA Administrator, and the EPA Administrator in considering a request to thus discharge pollutants is subject to the various requirements and limitations provided for in the Act and amendments thereto. The statute then defines the term “pollutant,” and states that among other things the term “pollutant means * * * radioactive materials * * The statute does not say “some” radioactive materials, or radioactive materials “except for,” just “radioactive materials.” So, it would seem to us that if we give the words thus used in the statute their plain and obvious meaning, the EPA Administrator is charged with the duty of regulating the discharge of radioactive materials into navigable waters. No exceptions having been set forth in the statute as concerns radioactive materials, it would follow that the term “radioactive materials” means all radioactive materials, and we so hold.

We are fortified in our conclusion in this regard by the fact that the statute defining “pollutants” does contain two exceptions, neither of which modifies the term “radioactive materials.” Under the rule of construction referred to above, where a statute contains express exceptions, the courts should be exceedingly slow in implying unexpressed exceptions, lest the courts thereby thwart the legislative intent.

In our view, then, the statute is plain and unambiguous and should be given its obvious meaning. Such being the case, under the authorities above cited, we need not here concern ourselves with the legislative history of the 1972 Amendments. In this regard we would note parenthetically that in our view the legislative history of the 1972 Amendments is conflicting and inconclusive. Be that as it may, in the case before us there is no need to address ourselves to the ofttimes difficult task of ascertaining legislative intent through legislative history. Here, the legislative intent is clearly manifested in the language of the statute itself, and we need not resort to legislative history. United States v. Oregon, supra, and Ex Parte Collette, supra.

As indicated, the main thrust of the defendants’ argument in this court is that if there is not in fact an ambiguity in the 1972 Amendments, at least the 1972 Amendments are possessed of an “unfinished character” which requires it to be juxtaposed with the Atomic Energy Act of 1954. The defendants urge that if the 1972 Amendments be so considered, then “by-products materials,” “source material,” and “special nuclear material” are under the Atomic Energy Act of 1954 specifically subjected to the control of the Atomic Energy Commission, which control includes the exclusive power to regulate the discharge of such radioactive materials; and that the Atomic Energy Commission has been, and is, thus regulating the discharge of such radioactive materials. Thus, according to the defendants, the Administrator under the 1972 Amendments only regulates the discharge of “other radioactive materials, such as radium and accelerator produced isotopes. All of which is of course in line with the COMMENT of the EPA in 40 C.F.R. 125.1 (x) (1973). Suffice it to say that this line of argument does not square with our reading of the 1972 Amendments. In this regard we are of course mindful of the rule that the construction given a statute by the administrative officer charged with carrying out its provisions is to be given weight. Board of Dir. & & O., Forbes Fed. Cr. U. v. National Cr. U. Adm., 477 F.2d 777 (10th Cir. 1973). However, such should not be permitted to overrule the express language of a statute, else the administrative officer will himself be thwarting the will of Congress. Or, as was said in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), “administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction."

In support of its general line of reasoning the defendants cite that section of the statute which states that the 1972 Amendments are not to be construed as limiting the functions of any officer or agency acting under any other law or regulation “not inconsistent with this chapter.” 33 U.S.C. § 1371(a) (Supp. 1973). Our answer to that is that the 1972 Amendments are inconsistent, in the particulars indicated, with the Atomic Energy Act of 1954.

We are advised that this is a ease of first impression. However, a case which addressed itself to a somewhat similar problem is Scenic Hudson Preservation Conference v. Callaway, 370 F.Supp. 162 (S.D.N.Y.1973), aff’d 499 F.2d 127 (2nd Cir. 1974). The 1972 Amendments provide that a permit to discharge dredged or fill material is to be obtained from the Secretary of the Army, acting through the Chief of Engineers, rather than the Administrator. 33 U.S.C. § 1344 (Supp.1973). However, Consolidated Edison, which was in the process of trying to build a hydroelectric generating plant, contended that since it was under the general jurisdiction of the Federal Power Commission, it was not required to get a permit from the Army Corps of Engineers. In rejecting such contention, that court stated as follows:

“ * * * Con Ed would infer an exception from the Amendments for hydroelectric plants on the theory that Congress could not have intended to interfere with the jurisdiction of the FPC in view of the long settled policy, discussed above, of allowing that agency unique control over the production of hydroelectric power. The argument is persuasive at first blush, but even more plausible is plaintiffs’ contention that Congress would not design an Act which on its face is all-inclusive, but for specifically enumerated exceptions, and yet intend to establish an unmentioned exception of the scale suggested here. Without any indication that Con Ed’s reading of the Congressional will is accurate, the carving out of so major an exception would be improper. If this was Congress’ intention and the omission is mere oversight, the remedy rests in Congress’ hands, and Congress has shown, by its recent amendments to the Alaska pipeline legislation, that it will not hesitate to remove an obstacle to energy production when it believes a change of requirements is necessary in the public interest.”

We generally concur with the reasoning of this Scenic Hudson case. We are advised in the instant case that “by-product material,” “source material,” and “special nuclear materials” constitute virtually all of the radioactive materials that are of significant concern to water quality, and if such materials are excepted from the 1972 Amendments, then the exception is devouring the general policy of the statute. Edward B. Marks Music Corp. v. Colorado Mag., Inc., 497 F.2d 285 (10th Cir. 1974). In any event, if in the 1972 Amendments Congress intended to except “by-product materials,” “source material,” and “special nuclear material” when it used the unmodified term “radioactive material,” then the omission should be corrected by Congress, and not the courts.

A case mentioned by the trial court in its memorandum opinion and cited here by the defendants is Northern States Power Company v. State of Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972). We do not deem that case to be particularly helpful in our resolution of the present case. That case stands for the proposition that Congress in enacting the Atomic Energy Act of 1954 preempted the field to the exclusion of the several states as concerns the regulation of radioactive waste releases from nuclear power plants. Assuming the correctness of this proposition, such does not mean that Congress is thereafter foreclosed from later deciding, as we believe it did, to vest the Environmental Protection Agency with the duty of regulating the discharge of all radioactive materials into navigable waters.

In sum, then, the 1972 Amendments charge the EPA Administrator with the duty of regulating the discharge of all radioactive materials into the Nation’s waters, and the trial court erred in granting the defendants’ motion for summary judgment.

The trial court denied plaintiffs’ request for reasonable attorney fees as provided in 33 U.S.C. § 1365(d) (Supp. 1973). Plaintiffs appeal this ruling and contend that such constituted an abuse of discretion on the part of the trial court. In view of our disposition of the appeal, we need not here address ourselves to the merit of that particular matter.

Judgment reversed and cause remanded for further proceedings consonant with the views herein expressed.

      . See Colorado Public Interest Group, Inc. v. Train, 373 F.Supp. 991 (D.C.Colo.1974).


source: Caselaw Access Project

author: EDWARD WEINFELD, District Judge:

license: Public Domain

text:
    Barbara WISDOM et al., Plaintiffs-Appellees, v. Nicholas NORTON, Commissioner of Welfare, State of Connecticut and Vincent B. Capuano, Director of Eligibility Services of the Connecticut State Welfare Department, Defendants-Appellants.
    No. 1058, Docket 74-1402.
    United States Court of Appeals, Second Circuit.
    Argued May 29, 1974.
    Decided Oct. 11, 1974.

      Francis J. MacGregor, Asst. Atty. Gen., Hartford, Conn. (Robert K. Killi-an, Atty. Gen., for the State of Conn., Hartford, Conn., of counsel), for defendants-appellants.
    Marilyn Kaplan Katz, Bridgeport, Conn. (Bridgeport Legal Services, Inc., Bridgeport, Conn., and Diane Schneider-man, New Haven Legal Assistance Ass’n, New Haven, Conn., of counsel), for plaintiffs-appellees.
    Before MOORE and FEINBERG, Circuit Judges, and WEINFELD, District Judge.

       Of the Southern District of New York, sitting by designation.

   EDWARD WEINFELD, District Judge:

This appeal presents the question whether an unborn child is eligible for assistance under the Aid to Families with Dependent Children (“AFDC”) provisions of Title IV of the Social Security Act of 1935, as amended, and if so, whether the policy of the State of Connecticut of denying such assistance to the unborn child and its pregnant mother is in conflict with the Act and thus invalid under the Supremacy Clause of the United States Constitution. Ap-pellees, plaintiffs in the courts below, commenced this action seeking declaratory and injunctive relief on behalf of themselves and all others similarly situated with regard to the State of Connecticut’s policy denying AFDC benefits for unborn children to otherwise eligible pregnant women. In substance, the complaint alleges that this policy violates the equal protection clause of the Fourteenth Amendment of the United States Constitution, as well as the Social Security Act and regulations promulgated thereunder, and thus is invalid under the Supremacy Clause. When this suit was instituted, one of the three named plaintiffs was receiving AFDC assistance on the basis of her two children who were living with her, but was denied AFDC benefits for her unborn child; the other two named plaintiffs were not receiving any AFDC assistance. The defendants are the Commissioner of Welfare for the State of Connecticut and the Director of Eligibility Services for the Welfare Department.

The district court consolidated plaintiffs’ motion for a preliminary injunction with the trial on the merits, and after hearing testimony and ruling that the prerequisites of a valid class action had been met pursuant to sections (a) and (b‘) (2) of Rule 23 of the Federal Rules of Civil Procedure, granted judgment for the plaintiffs. The district court stayed its judgment and order pending a decision on appeal by this court.

I.

Section 402(a) (10) of the Act requires that “. . . aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” Section 406(a) of the Act provides, inter alia, that AFDC benefits shall be paid to a needy " 'dependent child’ . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with” any one of several listed persons. The Act is silent as to aid to an unborn child. However, the Department of Health, Education and Welfare adopted an administrative practice first under an audit policy and later promulgated a regulation whereby the federal government reimbursed a state, which at its option extended such benefits to “an unborn child when the fact of pregnancy has been determined by medical diagnosis.” Connecticut, as have thirty-four other jurisdictions, has elected not to pay benefits to unborn children; nineteen jurisdictions have opted to do so. The basic issue, however, centers about the Act and not the regulation.

The district court held the state policy at issue here invalid under the Supremacy Clause of the United States Constitution because it is inconsistent with the eligibility provisions of the Social Security Act. Since states cannot vary the eligibility requirements of AFDC and exclude from its benefits individuals intended to be covered, our inquiry must focus on whether an unborn child is a “dependent child” within the meaning of the Act and therefore entitled to AFDC benefits.

Neither section 406(a) nor any other provision of the Act explicitly includes or excludes an unborn child. As has been cogently argued elsewhere, the language of various sections of Title IV makes sense only if the term “child” is limited to those who are born. The statutory scheme supports the view that Congress did not intend to confer welfare benefits to children until they were born. For example, section 401 states the purpose of the AFDC program as “encouraging the care of dependent children in their own homes or in the homes of relatives . . . . ” Clearly it is impossible to encourage the care of an unborn child in the home of a relative. So, too, sections 402(a)(7) and (8) of the Act require consideration of a child’s income and resources in establishing the amount of assistance. A fetus, of course, has no income. The foregoing, as well as other provisions of the Act — for example, sections 402(a) (11), 402(a) (13) through (15), 402(a) (16), all of which concern living children, give strong support to the view that the “dependent child” referred to in section 406(a) was intended to apply only to one that was born. Appellees’ counter argument that where identical words are used in a statute with quite different meanings it is the duty of the courts to give the words different meanings, is quite unpersuasive in light of the overall purpose of Title IV, as reflected by the sections referred to above.

Appellees, however, citing definitions in several dictionaries, argue that the ordinary meaning of “child” includes an unborn child. Appellants argue contrariwise, citing other dictionaries in support of their contention that under ordinary definitions the word “child” does not mean an “unborn child.”

This battle of dictionaries appears to be a stalemate. Nevertheless, application of the “ordinary meaning” rule in this case would seem to bear against ap-pellees’ position. “[Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.” We are of the view that the word “child” is commonly and ordinarily understood to mean a born child and not a fetus. Indeed, when it i.s intended to refer to a fetus it is usually modified by another word such as “unborn child.” Another example — when enumerating one’s offspring it is common to say, where appropriate, “I have two children and one on the way,” not “I have three children.” Common usage permits the conclusion that while a fetus is more than a non-child, it is something less than a child— a view which finds support in the Supreme Court’s ruling in Roe v. Wade, which refused to recognize that a fetus prior to the final trimester of pregnancy has rights separate from those of its mother.

We will assume, however, that the various dictionary definitions of “child” create sufficient ambiguity as to the meaning of that word as used in the AFDC provisions to justify turning to the legislative history of the Social Security Act for guidance. Appellees urge that inclusion of the unborn within the definition of “dependent child” furthers the underlying purpose of the Act of “encouraging the care of dependent children.” This is hardly open to dispute— indeed, many other provisions could be read into the Act which would further that underlying policy. However desirable such additions might be, they involve legislative policy considerations and are beyond the scope of the judicial func-. tion. The issue is whether Congress intended to extend the benefits of the Act to an unborn child. The entire thrust of Title IV is in furtherance of the interests of living and dependent children. Congress manifested no concern at the time the statute was enacted or in subsequent amendments with making funds available for the benefit of unborn children.

When the Social Security Act was discussed and debated prior to its enactment, what was to become the AFDC program was viewed as a counterpart to, and a federally funded extension of, state statutes known as “mothers’ aid” or “mothers’ pension” laws. These laws were described as follows:

“These are not primarily aids to mothers but defense measures for children. They are designed to release from the wage-earning role the person whose natural function is to give her children the physical and affectionate guardianship necessary, not alone to keep them from falling into social misfortune, but more affirmatively to rear them into citizens capable of contributing to society.”

Another report stated the following about these laws and the proposed AFDC program:

“Through cash grants adjusted to the needs of the family it is possible to keep the young children with their mother in their own home, thus preventing the necessity of placing the children in institutions. This is recognized by everyone to be the least expensive and altogether the most desirable method for meeting the needs of these families that has yet been devised.”

Finally, Title IV of the Act emphasizes that it was designed “for the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives.” Thus, it is apparent that an essential purpose of AFDC was to provide assistance to children who were fatherless or whose absent father failed to provide support so that the mother would be released from a wage-earning role and she would remain at home, supervising their upbringing and preventing them from falling into delinquency. Indeed, so strong was that policy, that Congress in 1950 amended the Act so that the aid would include payments “to meet the needs of the relative with whom any dependent child is living.” It is equally apparent that this concern that the mother be in the home to raise the child only comes into play once the child is born. On the other hand, the principal purpose to be served by making payments for an unborn child would be the care of its mother during the pregnancy by providing nutrition, medication and health care, which no doubt would be beneficial to the unborn child. The Social Security Act at the time of its passage included a separate program which provides payments for maternal and pre-natal health care, but it does so in Title V, not in Title IV which contains the AFDC provisions. For example, section 508(a) of Title V of the Act authorizes federal grants to state agencies and private agencies in support of projects providing “necessary health care to prospective mothers (including, after childbirth, health care to mothers and their infants) who have or are likely to have conditions associated with child bearing

We conclude that the language and purpose of the AFDC provisions and the structure of the Social Security Act indicate that unborn children were not intended to be included in AFDC. We are also of the view that the omission of language in the statute and the absence of legislative history specifically excluding (or, for that matter, including) unborn children from coverage is because Congress never contemplated that they be eligible for AFDC benefits. It is manifest that had Congress intended to include unborn children within the definition of “dependent children,” in all likelihood it would have expressed itself in clear and unambiguous language.

Appellees place great reliance on a trilogy of Supreme Court cases striking down state eligibility restrictions for AFDC benefits. These cases may be summed up as holding that “at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Appellees contend that these eases require inclusion of unborn children in AFDC because fetuses are not specifically excluded from coverage. In a subsequent decision, however, the Court clarified the trilogy rule as applicable to those cases where “it was clear that state law excluded people from AFDC benefits who the Social Security Act expressly provided would be eligible.” The Act does not expressly provide that the unborn are eligible; moreover, we have rejected appellees’ argument that the unborn come within the Act’s definition of “dependent child.” Hence the trilogy rule does not apply here.

We do, however, agree with both appellees and appellants that the Department of Health, Education and Welfare (“HEW”) is incorrect in its policy of allowing payments to unborn children at the option of the participating states. If unborn children are eligible under the Social Security Act for AFDC payments, the trilogy cases clearly prevent the states from granting or withholding these payments at their options, since the Act itself does not provide such an option. If, on the other hand, unborn children are not eligible under the Act for AFDC benefits, HEW has no authority to approve such optional payments. The Act as to unborn children is either mandatory or it is not; either they are eligible or not eligible as “dependent children.” Since we hold that unborn children are not eligible for AFDC, HEW exceeded its authority in granting states the option to make such payments under the Social Security Act.

Appellees contend that we should nonetheless give great weight to the fact that HEW regulations permit AFDC payments to unborn children — although the optional aspect of these payments is invalid — since HEW is the federal agency charged with the program’s administration. However, if HEW has incorrectly construed the Social Security Act to permit optional AFDC payments to unborn children, it may also have misconstrued it in ruling that such payments are permissible under the Act at all. While the construction of a statute by the agency charged with administering it is entitled to be given weight, “in the end, after whatever reserve, upon the courts rests the ultimate responsibility of declaring what a statute means.” We are convinced that our construction of the statute is correct, and decline to follow the HEW regulation to the extent that payments thereunder of AFDC benefits for unborn children are authorized by the Social Security Act. Moreover, reliance upon the administrative regulation as reflecting Congressional purpose to in-elude an unborn child within the definition of a “dependent child” is misplaced. HEW has expressly disavowed that under the Act an unborn child is within the definition of a needy “dependent child.” Its position is that the regulation under which federal financial participation is made available, at the state’s option, in payments on behalf of unborn children is an exercise of administrative discretion authorized by the Secretary’s broad rule-making authority pursuant to section 1102 of the Act. Specifically with respect to that regulation, HEW is of the view “that Congress did not intend to include unborn children within the definition of ‘dependent child’ contained in section 406(a) of the Act.”

Finally, appellees rely on the fact that committees in both Houses of the 92nd Congress proposed an amendment to 42 U.S.C., section 606(a), that would have explicitly excluded the unborn from the term “dependent child.” The amendment was not enacted. Appellees interpret this as congressional recognition of the HEW policy and acknowledgment of the correctness of HEW’s construction of section 606(a). Another court, however, has pointed out that “the reason the legislation was not passed was because the Congress decided to deal only with the Adult Categories of Public Assistance in [the law that was finally enacted, and] [t]herefore, all references to AFDC were set aside at that time.” Moreover, Congress’ failure to enact the proposed amendment at that time — or to enact a similar amendment at any other time — may just as logically be interpreted as acquiescence in HEW’s policy of making AFDC payments to the unborn optional, a policy which, if upheld, would defeat appellees’ statutory claim. “In any event, unsuccessful attempts at legislation are not the best of guides to legislative intent” — certainly not as to the intent of the 74th Congress which passed the legislation here at issue. We can discern no clear meaning from the 92nd Congress’ failure to enact the proposed amendment, and for our purposes ascribe no significance to it.

In sum, with deference to the four courts of appeals who have held otherwise, we hold that Connecticut’s denial of AFDC benefits to unborn children does not conflict with the Social Security Act.

II.

Since we reverse the district court’s holding that Connecticut’s policy conflicts with the Social Security Act, we next consider appellees’ claim that this state policy of denying AFDC assistance to unborn children violates the Equal Protection Clause of the Fourteenth Amendment.

Appellees originally demanded that a three-judge district court be convened pursuant to 28 U.S.C., section 2281, but the district court’s resolution of the pendent statutory claim eliminated the need to consider convening a three-judge court to pass upon the equal protection issue.

Appellees’ constitutional attack on the statewide policy of Connecticut’s Welfare Department is within the scope of section 2281 and the issue is neither “wholly insubstantial” nor “obviously frivolous” so as to avoid under normal circumstances the need to convene a three-judge district court to decide the constitutional issue. Nevertheless, we decline to remand this case to the district judge for him to convene a three-judge district court under 28 U. S.C., section 2284.

In view of our conclusion that AFDC statutory provisions do not permit, much less authorize, payments to the unborn, there is no reason to remand the constitutional question for determination by a three-judge district court when the result is foreordained since that court, bound as it would be by our determination of the statutory issue, would have to deny the equal protection claim. It would be a waste of judicial manpower and of the litigants’ time and resources to require that a three-judge district court go through the ritual of relying on our decision here to reject — as it would have to — appellees’ constitutional argument. This conclusion strikes us as particularly appropriate and consistent with the historical purpose of section 2281, which was enacted for the protection of the states from the judgment of a single district judge, a purpose that would not be served by a remand in this case. True, this action deprives appellees of direct appeal to the Supreme Court from a three-judge court, but Supreme Court review of our decision is available through the device of certiorari, which appears likely, given the status of the litigation on this issue in the various circuits and the already pending petitions for certiorari. Moreover, the direct appeal provision appears “far more likely to have been for the benefit of the state than the plaintiff.”

Turning to the merits of appellees’ constitutional claim, we assume, without deciding, that appellees would be entitled to AFDC benefits in their own behalf rather than in behalf of their unborn children. Essentially, the equal protection claim is based upon alleged discrimination in denying to them, as mothers of unborn children, the AFDC benefits and payments that are provided to all other children and their mothers. The Supreme Court has held that “[i]n the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Further, “the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. ... It is enough that the State’s action be rationally based and free from invidious discrimination.” Connecticut’s policy of denying AFDC benefits to the unborn easily meets that test. Appellees do not allege that it is invidiously discriminatory in a constitutional sense, and the classification is a rational means of advancing the pui’pose of the AFDC program: encouraging the presence of a relative in the home of a dependent child to supervise the child’s upbringing.

The judgment of the district court is reversed.

      . 42 U.S.C. § 601 et seq. (1970).

      . To date, 4 courts of appeals and 10 district courts, including the court below, have held that unborn children are entitled to AFDC benefits. Carver v. Hooker, 501 F.2d 1244 (1st Cir., 1974), aff’g, 369 F.Supp. 204 (D.N.H.1973); Wilson v. Weaver, 499 F.2d 155 (7th Cir. 1974), aff’g, 358 F.Supp. 1147 (N. D.Ill.1973) and Green v. Stanton, 364 F. Supp. 123 (N.D.Ind.1973) ; Alcala v. Burns, 494 F.2d 743 (8th Cir. 1974), aff’g, 362 F. Supp. 180 (S.D.Iowa 1973), petition for cert. filed, 414 U.S. 809, 94 S.Ct. 26, 38 L.Ed.2d 45 (1974); Doe v. Lukhard, 493 F.2d 54 (4th Cir. 1974), aff’g, 363 F.Supp. 823 (E.D.Va.1973), petition for cert. filed, 43 U.S.L.W. 3075 (U.S. Aug. 18, 1974) ; Wisdom v. Norton, 372 F.Supp. 1190 (D. Conn.1974) ; Stuart v. Canary, 367 F.Supp. 1343 (N.D.Ohio 1973) ; Whitfield v. Minter, 368 F.Supp. 798 (D.Mass.1973) ; Jones v. Graham, Civ. No. 73-L-235 (D.Neb., Sept. 5, 1973) ; Harris v. Mississippi State Dept. of Public Welfare, 363 F.Supp. 1293 (N.D. Miss.1973). In addition, two other district courts have granted j)reliminary injunctions against state denials of AFDC benefits to the unborn. Tapia v. Vowell, Civ. No. 73-B-169 (S.D.Tex., Nov. 4, 1973) ; Tillman v. Endsley, No. 73-1476-Civ.-CF (S.D.Fla. Oct. 1, 1973). Four federal district courts liave held that unborn children are not covered. Poole v. Endsley, 371 F.Supp. 1379 (N.D.Fla.1974) ; Mixon v. Keller, 372 F.Supp. 51 (M.D.Flal974), pet. for cert. filed in advance of judgment in 5th Cir., 43 U.S.L.W. 3095 (U.S. Aug. 7, 1974) ; Murrow v. Clifford, Civ. No. 114-73 (D.N.J. June 12, 1973) ; Parks v. Harden, 354 F.Supp. 620 (N.D.Ga.1973).

      . Any question as to the jurisdiction of the federal courts to hear this suit has been settled by the Supreme Court’s decision in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

      . See Fed.R.Civ.P. 65(a) (2).

      . 372 F.Supp. 1190 (D.Conn.1974).

      . 42 U.S.C. § 602(a) (10).

      . 42 U.S.C. § 606(a).

      . IIEW, Handbook of Public Assistance Administration, § 3412.6 (Nov. 4,1946).

      . 45 C.F.R. § 233.90(c) (2) (ii) (1973).

      . The court summarized the reasons for its holding:
      1. The definition of “child” includes a “fetus,” an “unborn human being,” and an “unborn infant.”
      2. The medical evidence clearly indicated that inclusion of the unborn child as a “dependent child” is consistent with the purposes of the Act.
      3. No credible argument can be advanced that Congress intended to exclude an unborn child from coverage of the Act. An unborn child is not any less “needy” or “dependent” than a child who has been born.

        4. IIEW regulations have permitted payments to unborn children; the optional features of the administrative regulations, however, are violative of the provisions of the Act.
      5. Both houses of the 92nd Congress proposed amendments to the Act which would have excluded unborn children, but the amendments were not enacted.
      6. In the absence of express congressional authorization, a state policy that excludes persons eligible for assistance under federal standards is in conflict with the Act and is invalid under the Supremacy Clause. 372 F.Supp. 1190, 1192 (D. Conn.1974).

      . Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 932, 32 L.Ed.2d 352 (1972) ; Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) ; King v. Smith, 392 U.S. 309, 313, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

      . Mixon v. Keller, 372 F.Supp. 51 (M.D.Fla.1974) ; Parks v. Harden, 354 F.Supp. 620, 625 (N.D.Ga.1973). See also Wilson v. Weaver, 499 F.2d 155, at 158 (7th Cir., 1974) (Pell, J., dissenting).

      . 42 U.S.C. § 601.

      . 42 U.S.C. § 602(a) (7) and (8).

      . 42 U.S.C. §§ 602(a) (11), 602(a) (13) through (15), 602(a) (16).

      . Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932).

      . The American Heritage Dictionary of the English Language (1969) ; The Shorter Oxford English Dictionary (1933) ; Webster’s New Twentieth Century Dictionary (Una- ■ bridged) (2d ed. 1970) ; Webster’s Unabridged Dictionary (2d ed. 1969).

      . Funk & Wagnalls Standard Dictionary, International Edition (1958) ; The Random House Dictionary of the English Language (Unabridged) (1966) ; Rogets International Thesaurus (3d ed. 1962) ; Black’s Law Dictionary (4th ed. 1951) ; Webster’s Third International Dictionary (1969) ; Ballentine’s Law Dictionary (3d ed. 1969).

      . Bailey v. Drexel Furniture Co., 259 U.S. 20, 36, 42 S.Ct. 449, 66 L.Ed. 817 (1922) ; DeGanay v. Lederer, 250 U.S. 376, 381, 39 S.Ct. 524, 63 L.Ed. 1042 (1919).

      . Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944). See also Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 276, 69 L.Ed. 660 (1925) : “[T]he plain, obvious and rational meaning of a statute is always preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”

      . 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

      . Message of the President Recommending Legislation on Economic Security, H.R.Doc. No. 81, 74th Cong., 1st Sess. 30 (1935).

      . S.Rep.No.628, 74th Cong., 1st Sess. 17 (1935). See also II.R.Rep.No.615, 74th Cong., 1st Sess. 10-12 (1935).

      . While the AFDC provisions have been amended several times during the intervening years, including in 1962, a change in the title of tlie program from its original “Aid to Dependent Children” to tire present “Aid to Families with Dependent Children,” see Pub.L. No. 87-543, 76 Stat. 172, 185 (1962), there is no evidence that the purpose of the program — promoting the home life of dependent children and their fostering by their mothers or other relatives — has changed. Hee 42 U.S.C. § 601 et seq. (1970).

      . 42 U.S.C. § 606(b) (1).

      . 42 U.S.C. § 701 et seq. (1970).

      . We do not bring attention to Title V with the idea that including unborn children in AFDC would necessarily be inconsistent with providing funds for maternal health care in Title V. To the contrary, as already noted, it would not only be consistent with but it would further the general policy of the entire Act. The significance of Title V for our purposes is as evidence — rather •strong evidence when combined with the language and purpose of the AFDO provisions —of a congressional intent not to include unborn children under AFDC but to provide for maternity care in a different section of the statute.

      . 42 U.S.C. § 708(a).

      . Cf. New York State Dept. of Social Services v. Dublino, 413 U.S. 405, 414, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973).

      . Carleson v. Remillard, 406 U.S. 598, 92 S. Ct. 1932, 32 L.Ed.2d 352 (1972) ; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) ; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

      . Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971).

      . New York State Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2517, 37 L.Ed.2d 688 (1973).

      . In this respect, we disagree with two other courts that have upheld state denials of AFDC benefits to the unborn. See Poole v. Endsley, 371 F.Supp. 1379, 1383 (N.D.Fla. 1974) ; Parks v. Harden, 354 F.Supp. 620, 625-626 (N.D.Ga.1973).

      . 45 C.F.R. §§ 233.90(c) (2) (ii), (c)(3) (1973).

      . Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 790 (2d Cir.), (L. Hand, J.), aff’d, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). See also Volkswa-genwerk Aktiengesellschaft v. Federal Maritime Comm’n, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968) ; FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S. Ct. 1035, 13 L.Ed.2d 904 (1965).

      . This conviction is strengthened by the analysis of the court in Parks v. Harden, 354 F.Supp. 620, 625 n. 5 (N.D.Ga.1973), of the genesis of HEW’s policy allowing AFDC payments to unborn children. According to that court, the policy stemmed from a decision by the Social Security Board to waive an audit exception to payments made to unborn children by the State of Wisconsin. Thus, it appears to have originated as an ad hoo decision to defer to a state’s policy, rather than as a rule based on an interpretation of the federal statute.

      . 42 U.S.O. § 1302.

      . Supplemental brief submitted on behalf of HEW in Adams v. Huecker, U.S.D.C., W.D.Ky. at 9 (May 2, 1974).

      . See H.R.No.92-231, 92nd Cong., 1st Sess. 184 (1971) ; S.Rep.No.92-1230, 92nd Cong., 2d Sess. 467 (1972), U.S.Code Cong. & Admin.News 1972, p. 4989.

      . See Pub.L.No.92-603, 86 Stat. 1329 (1972).

      . Mixon v. Keller, 372 F.Supp. 51, 55 (M.D.Fla.1974).

      . Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 382 n. 11, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969).

      . United States v. United Mine Workers of America, 330 U.S. 258, 281-282, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

      . See Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

      . Board of Regents v. New Left Education Project, 404 U.S. 541, 544 n. 2, 545, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972) ; Ortiz v. Colon, 475 F.2d 135 (1st Cir. 1973) ; Rothblum v. Board of Trustees, 474 F.2d 891 (3d Cir. 1973). See also Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1940).

      . Goosby v. Osser, 409 U.S. 512, 518-519, 93 S.Ct. 854, 35 L.Ed .2d 36 (1973) ; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) ; Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933).

      . Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970).

      . Seergy v. Kings County Republican County Comm., 459 F.2d 308, 313 (2d Cir. 1973).

      . 28 U.S.C. § 1253.

      . See note 2, supra.

      . Astro Cinema Corp., Inc. v. Mackell, 422 F.2d 293, 298 (2d Cir. 1970) ; cf. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964).

      . Appellants contend that appellees can only receive benefits in behalf of their children, and since the Supreme Court ruled in Roe v. Wade, 410 U.S. 113, 158, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that a fetus is not a “person” for the purposes of the Fourteenth Amendment, appellees’ unborn children cannot maintain a claim under the equal protection clause.

      . Dandridge v. Williams, 397 U.S. 471, 485-487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970) ; see Jefferson v. Hackney, 406 U.S. 535, 545-551, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).


author: SEITZ, Chief Judge.

text:
    Russell P. MILLER and Margaret Jane Miller, his wife, Appellants, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY (hereafter AT&T) et al.
    No. 73-2007.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 3, 1974.
    Decided Nov. 4, 1974.

      Clarke F. Hess, King of Prussia, Pa., for appellants; Butera & Detwiler, King of Prussia, Pa., of counsel.

      Philip M. Hammett, Eugene A. Spec-tor, Nicholas E. Chimicles, Philadelphia, Pa., for appellees; Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel.
    Before SEITZ, Chief Judge, GIBBONS and GARTH, Circuit Judges.
   SEITZ, Chief Judge.

Plaintiffs, stockholders in American Telephone and Telegraph Company (“AT&T”), brought a stockholders’ derivative action in the Eastern District of Pennsylvania against AT&T and all but one of its directors. The suit centered upon the failure of AT&T to collect an outstanding debt of some $1.5 million owed to the company by the Democratic National Committee (“DNC”) for communications services provided by AT&T during the 1968 Democratic national convention. Federal diversity jurisdiction was invoked under 28 U.S.C. § 1332.

Plaintiffs’ complaint alleged that “neither the officers or directors of AT&T have taken any action to recover the amount owed” from on or about August 20, 1968, when the debt was incurred, until May 31, 1972, the date plaintiffs’ amended complaint was filed. The failure to collect was alleged to have involved a breach of the defendant directors’ duty to exercise diligence in handling the affairs of the corporation, to have resulted in affording a preference to the DNC in collection procedures in violation of § 202(a) of the Communications Act of 1934, 47 U.S.C. § 202(a) (1970), and to have amounted to AT&T’s making a “contribution” to' the DNC in violation of a federal prohibition on corporate campaign spending, 18 U.S.C. § 610 (1970).

Plaintiffs sought permanent relief in the form of an injunction requiring AT&T to collect the debt, an injunction against providing further services to the DNC until the debt was paid in full, and a surcharge for the benefit of the corporation against the defendant directors in the amount of the debt plus interest from the due date. A request for a preliminary injunction against the provision of services to the 1972 Democratic convention was denied by the district court after an evidentiary hearing.

On motion of the defendants, the district court dismissed the complaint for failure to state a claim upon which relief could be granted. 364 F.Supp. 648 (E.D.Pa.1973). The court stated that collection procedures were properly within the discretion of the directors whose determination would not be overturned by the court in the absence of an allegation that the conduct of the directors was “plainly illegal, unreasonable, or in breach of a fiduciary duty .” Id. at 651. Plaintiffs appeal from dismissal of their complaint.

In viewing the motion to dismiss, we must consider all facts alleged in the complaint and every inference fairly deductible therefrom in the light most favorable to the plaintiffs. A complaint should not be dismissed unless it appeal's that the plaintiffs would not be entitled to relief under any facts which they might prove in support of their claim. Judging plaintiffs’ complaint by these standards, we feel that it does state a claim upon which relief can be granted for breach of fiduciary duty arising from the alleged violation of 18 U.S.C. § 610.

I.

The pertinent law on the question of the defendant directors’ fiduciary duties in this diversity action is that of New York, the state of AT&T’s incorporation. See Perlman v. Feld-mann, 219 F.2d 173, 175 (2d Cir.), cert. denied, 349 U.S. 952, 75 S.Ct. 880, 99 L.Ed. 1277 (1955); Kroese v. General Castings Corporation, 179 F.2d 760, 765 (3d Cir.), cert. denied, 339 U.S. 983, 70 S.Ct. 1026, 94 L.Ed. 1386 (1950) ; Restatement (Second) of Conflicts § 309 (1971). The sound business judgment rule, the basis of the district court’s dismissal of plaintiffs’ complaint, expresses the unanimous decision of American courts to eschew intervention in corporate decision-making if the judgment of directors and officers in uninfluenced by personal considerations and is exercised in good faith. Pollitz v. Wabash Railroad Co., 207 N.Y. 113, 100 N.E. 721 (1912); Bayer v. Beran, 49 N.Y.S.2d 2, 4-7 (Sup.Ct.1944); 3 Fletcher, Private Corporations § 1039 (perm. ed. rev. vol. 1965). Underlying the rule is the assumption that reasonable diligence has been used in reaching the decision which the rule is invoked to justify. Casey v. Woodruff, 49 N.Y.S.2d 625, 643 (Sup.Ct.1944).

Had plaintiffs’ complaint alleged only failure to pursue a corporate claim, application of the sound business judgment rule would support the district court’s ruling that a shareholder could not attack the directors’ decision. See United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119 (1917); Clifford v. Metropolitan Life Insurance Co., 264 App. Div. 168, 34 N.Y.S.2d 693 (2d Dept. 1942); 13 Fletcher, Private Corporations § 5822 (perm. ed. rev. vol. 1970). Where, however, the decision not to collect a debt owed the corporation is itself alleged to have been an illegal act, different rules apply. When New York law regarding such acts by directors is considered in conjunction with the underlying purposes of the particular statute involved here, we are convinced that the business judgment rule cannot insulate the defendant directors from liability if they did in fact breach 18 U.S.C. § 610, as plaintiffs have charged.

Roth v. Robertson, 64 Misc. 343, 118 N.Y.S. 351 (Sup.Ct.1909), illustrates the proposition that even though committed to benefit the corporation, illegal acts may amount to a breach of fiduciary duty in New York. In Roth, the managing director of an amusement park company had allegedly used corporate funds to purchase the silence of persons who threatened to complain about unlawful Sunday operation of the park. Recovery from the defendant director was sustained on the ground that the money was an illegal payment:

For reasons of public policy, we are clearly of the opinion that payments of corporate funds for such purposes as those disclosed in this case must be condemned, and officers of a corporation making them held to a strict accountability, and be compelled to refund the amounts so wasted for the benefit of stockholders. ... To hold any other rule would be establishing a dangerous precedent, tacitly countenancing the wasting of corpo-' rate funds for purposes of corrupting public morals. Id. at 346, 118 N.Y.S. at 353.

The plaintiffs’ complaint in the instant case alleges a similar “waste” of $1.5 million through an illegal campaign contribution.

Abrams v. Allen, 297 N.Y. 52, 74 N.E.2d 305 (1947), reflects an affirmation by the New York Court of Appeals of the principle of Roth that directors must be restrained from engaging in activities which are against public policy. In Abrams the court held that a cause of action was stated by an allegation in a derivative complaint that the directors of Remington Rand, Inc., had relocated corporate plants and curtailed production solely for the purpose of intimidating and punishing employees for their involvement in a labor dispute. The Court of Appeals acknowledged that, “depending on the circumstances,” proof of the allegations in the complaint might sustain recovery, inter alia, under the rule that directors are liable for corporate loss caused by the commission of an “unlawful or immoral act.” Id. at 55, 74 N.E.2d at 306. In support of its holding, the court noted that the closing of factories for the purpose alleged was opposed to the public policy of the state and nation as embodied in the New York Labor Law and the National Labor Relations Act. Id. at 56, 74 N.E.2d at 307.

The alleged violation of the federal prohibition against corporate political contributions not only involves the corporation in criminal activity but similarly contravenes a policy of Congress clearly enunciated in 18 U.S.C. § 610. That statute and its predecessor reflect congressional efforts: (1) to destroy the influence of corporations over elections through financial contributions and (2) to check the practice of using corporate funds to benefit political parties without the consent of the stockholders. United States v. CIO, 335 U.S. 106, 113, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).

The fact that shareholders are within the class for whose protection the statute was enacted gives force to the argument that the alleged breach of that statute should give rise to a cause of action in those shareholders to force the return to the corporation of illegally contributed funds. Since political contributions by corporations can be checked and shareholder control over the political use of general corporate funds effectuated only if directors are restrained from causing the corporation to violate the statute, such a violation seems a particularly appropriate basis for finding breach of the defendant directors’ fiduciary duty to the corporation. Under such circumstances, the directors cannot be insulated from liability on the ground that the contribution was made in the exercise of sound business judgment.

.Since plaintiffs have alleged actual damage to the corporation from the transaction in the form of the loss of a $1.5 million increment to AT&T’s treasury, we conclude that the complaint does state a claim upon which relief can be granted sufficient to withstand a motion to dismiss.

II.

We have accepted plaintiffs’ allegation of a violation of 18 U.S.C. § 610 as a shorthand designation of the elements necessary to establish a breach of that statute. This is consonant with the federal practice of notice pleading. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Fed.R. Civ.P. 8(f). That such a designation is sufficient for pleading purposes does not, however, relieve plaintiffs of their ultimate obligation to prove the elements of the statutory violation as part of their proof of breach of fiduciary duty. At the appropriate time, plaintiffs will be required to produce evidence sufficient to establish three distinct elements comprising a violation of 18 U.S.C. § 610: that AT&T (1) made a contribution of money or anything of value to the DNC (2) in connection with a federal election (3) for the purpose of influencing the outcome of that election. See United States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 755, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); United States v. Lewis Food Co., Inc., 366 F.2d 710 (9th Cir. 1966). The first two of these elements are obvious from the face of the statute; the third was supplied by legislative history prior to being made explicit by 1972 amendments to definitions applicable to § 610.

A “Contribution” to the DNC

In proving a contribution to the DNC, plaintiffs will be required to establish that AT&T did in fact make a gift to the DNC of the value of the communications services provided to the 1968 Democratic convention. Such a gift could be shown, for example, by demonstrating that the services were provided with no intention to collect for them. Likewise, plaintiffs could meet their burden in this respect by proving that although a valid debt was created at the time the services were rendered, that debt was discharged formally or informally by the defendants or is no longer legally collectible as a result of the defendants’ failure to sue upon it within the appropriate period of limitation. In any event, as a threshold matter, plaintiffs will be required to show that actions of the defendants have resulted in the surrender of a valid claim of $1.5 million for services rendered to the DNC.

In Connection With a Federal Election

Plaintiffs must also establish that the contribution was in connection with a federal election. Obviously, the communications services were provided in connection with the 1968 election. If, however, a valid debt was created at that time and the alleged gift was made at some later time when the debt was forgiven or became legally uncollectible, the contribution may have been made in connection with a subsequent federal election. Plaintiffs did not allege the date of the contribution in their complaint, but their burden on remand will include establishing a nexus between the alleged gift and a federal election.

For the Purpose of Influencing an Election

Finally, plaintiffs must also convince the fact finder that the gift, whenever made, was made for the purpose of aiding one candidate or party in a federal election. Proof of non-collection of a debt owed by the DNC will be insufficient to establish the statutory violation upon which the defendants’ breach of fiduciary duty is predicated; plaintiffs must shoulder the burden of proving an impermissible motivation underlying the alleged inaction. In the absence of direct proof of a partisan purpose on the part of the defendants, plaintiffs may produce evidence sufficient to justify the inference that the only discernible reason for the failure to pursue the debtor was a desire to assist the Democratic Party in achieving success in a federal election. At a minimum, plaintiffs must establish that legitimate business justifications did not underlie the alleged inaction of the defendant directors. The possibility of the existence of such reasonable business motives illustrates the need for proof of more than mere non-collection even of the debt of a political party in order to establish a breach of 18 U.S.C. § 610.

III.

In addition to advancing claims of breach of fiduciary duty by the defendants, plaintiffs have urged in this court that we “imply” a direct federal cause of action in their favor against the defendant directors for the alleged violations of 18 U.S.C. § 610 and 47 U. S.C. § 202(a). A federal law count was nowhere included in the plaintiffs’ complaint and there is no indication in the record that this question was ever presented to the district court. After remand of this case, plaintiffs will have an opportunity to move to amend their complaint pursuant to Rule 15, Fed.R. Civ.P., and the district court will act upon any such motion within the discretion afforded under that rule.

The order of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.

      . This was the statute in force at the time of the 1968 Democratic convention. Amendments not pertinent to the problem before us were made by the Federal Election Campaign Act of 1971, 86 Stat. 3 (codified in scattered sections of 2, 18 U.S.C.). See 18 U.S.C. § 610 (1970), as amended (Supp. II, 1972).

      . Although plaintiffs alleged in their complaint that AT&T is a Delaware corporation, they have not suggested the incorrectness of the court’s determination on the application for preliminary injunction that AT&T is in fact organized under the laws of New York. We conclude, therefore, that plaintiffs have tacitly admitted that AT&T is a New York corporation, and we will treat it as such.

      . That violation of a federal statute is the basis of the breach of fiduciary duty and that therefore the court is required to interpret the federal statute lias not d terrecí Xew York courts from entertaining such suits against directors. Bee Knopfler v. Bohen, 15 A.D.2d 922, 225 N.Y.S.2d 609 (2d Dept. 1962) ; cf. Simon v. Socony Vacuum Oil Co., 179 Misc. 202, 38 N.Y.S.2d 270 (Sup.Ct.1942).

      . AAre note that prior to .Tune 1, 1974, corporate political contributions made “directly or indirectly” violated Xew York law. Law of July 20, 1965, eh. 1031, § 43, [1965) X.Y. Laws 1783 (repealed 1974). Furthermore, apart from the statutory prohibition, political donations by corporations were apparently ultra vires acts in Xew York. See IPeople ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N. E. 383 (1907). Corporations or organizations financially supported by corporations doing business in the state are now permitted, to make contributions up to $5,000 per year. X.Y. Election Law § 480 (McKinney’s Consol.Laws, c. 17, Supp.1974).

      . Under Xew York law, allegation of breach even of a federal statute is apparently insufficient to state a cause of action unless tlr' breach caused independent damage to the corporation. Bee Diamond v. Davis, 263 App.Div. 68, 31 N.Y.S.2d 582 (1st Dept. 1941) ; Borden v. Cohen, 231 N.Y.S.2d 902 (Sup.Ct.1962). liiif nee Runcie v. Bankers Trust Co., 6 N.Y.S.2d 623 (Sup.Ct.1938).

      . AAre express no opinion today on the question of whether plaintiffs’ complaint may also state a cause of action for breach of fiduciary duty arising from the alleged violation of 47 U.S.C. § 202(a).

      . See United States v. UAW, 352 U.S. 567, 589, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957), where, after examining the legislative history and chronological development of federal prohibitions on campaign contributions by corporations and labor organizations, the Supreme Court stated: ‘“‘The evil at which Congress has struck in § 313 [now 18 U.S. C. § 610] is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party.”
      As amended by the Federal Election Campaign Act of 1971 (effective April 7, 1972), the definition of “contribution” for purposes of 18 U.S.C. § 610 is a gift of money or anything of value “made for the purpose of influencing the nomination for election, or election” of any person to federal office or for influencing the outcome of a primary or national nominating convention. 18 U.S.C. § 591 (1970), as amended (Supp. II 1972).

      . See 47 U.S.C. § 415(a) (1970) which requires communications carriers to commence actions for recovery of charges within one year from the time the cause of action accrues.

      . Compiling an unsecured debt of this magnitude is no longer possible under new regulations of the Federal Communications Commission adopted May 5, 1972. The FCC regulations, 47 C.F.R. § 64.801-804 (1973), permit the granting of unsecured credit to political candidates but require termination of services if charges remain unpaid for 15 days and the debtor does not pay within 7 days after notice given “forthwith” upon expiration of the 15 day period. Common carriers are explicitly required to act to collect the unpaid balance prior to the running of the one year statute of limitations found in 47 U.S.C. § 415(a) (1970).


author: HOLLOWAY, Circuit Judge.

text:
    Charles W. BARD, Plaintiff-Appellant, v. Robert C. SEAMANS, Secretary of the Air Force, and Major General Alton D. Slay, Commanding General, Lowry Air Force Base, Defendants-Appellees.
    No. 74-1016.
    United States Court of Appeals, Tenth Circuit.
    Argued July 12, 1974.
    Decided Dec. 9, 1974.

      Russell W. Bartels, Denver, Colo., for plaintiff-appellant.
    James L. Treece, U. S. Atty., Denver, Colo. (Lt. Col. Wayne E. Robinson, Office of Staff Judge Advocate, Lowry AFB, Colo., of counsel, on the brief) for defendants-appellees.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Charles W. Bard appeals from the district court’s dismissal of his suit seeking to have his military discharge declared void and expunged for failure of Air Force personnel to follow regulations in handling the discharge. Bard was separated from the Air Force in 1963, and although he was given an honorable discharge at that time, he was officially processed under Air Force Regulation (AFR) 39-16, “Discharge for Unsuitability.” Bard’s records reflect this qualification of the discharge and he claims injury from the nature of the discharge which he must present to potential employers.

Bard brought his suit on March 30, 1973, for a declaratory judgment that his 1963 discharge instruments on Department of Defense forms 256 and 214 are void, for an order that they be expunged from his records, and for other relief. Among other things he alleged that he sought a hardship discharge in December, 1962; that this application was arbitrarily disapproved on the day submitted, without opportunity for a hearing and without being properly processed; and that on December 31, 1962, he was served notice that a discharge was being recommended under Sec B AFR 39-16. He further averred that he was wrongfully informed that the discharge recommended was “honorable;” that none of the interviews conducted were at a time when he realized he was being examined concerning a discharge for unsuitability; that he never received a true psychiatric or other type of medical examination required for an evaluation of his suitability; and that his discharge was not properly authorized. For these and other reasons he claimed that the discharge and instruments issued were void, and he averred that he had exhausted administrative remedies without being afforded relief.

Prior to answering Bard’s complaint the government appellees moved to dismiss or for summary judgment on the following grounds; (1) lack of subject matter jurisdiction; (2) failure to state a claim on which relief could be granted; (3) statute of limitations and laches, and (4) failure to exhaust his administrative remedies. At a hearing on the motion, at which both sides offered evidence outside the pleadings, the court ruled in favor of the appellees on several grounds, not mentioning laches however, and granted the motion. A written dismissal was subsequently entered.

Bard argues that the district court erred as to all grounds for its judgment, and that we should also rule on the merits of his claim, grant summary judgment in his behalf and declare his discharge void. For reasons that follow we conclude that the court had jurisdiction of the subject matter under the Administrative Procedure Act, but affirm the dismissal for lack of exhaustion of administrative remedies, modifying the disposition to one of dismissal on that ground alone.

Subject Matter Jurisdiction

Bard’s complaint alleged that the “cause of action . . . arises under Regulations adopted by the Secretary of the Air Force. . . . Relief in the case is sought under 28 U.S.C.A. § 2201.” The government attacked the jurisdictional allegations, claiming that section 2201 confers no subject matter jurisdiction on the federal courts and that it is insufficient to support plaintiff’s complaint. The trial court stated it agreed with this proposition and later upheld the challenge to jurisdiction, not specifying the ground of the ruling.

We agree that the Declaratory Judgment Act provisions in 28 U.S.C.A. § 2201 confer no additional subject matter jurisdiction on the federal courts and that some statute affording jurisdiction must apply to support a declaratory judgment. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194. Moreover, federal courts are of limited jurisdiction and there is no presumption in favor of subject matter jurisdiction. See Turner v. The President, Directors and Company of the Bank of North America, 4 Dali. (4 U.S.) 7, 11, 1 L.Ed. 718. Bard asserts that “any court, at any time . has jurisdiction to extend a remedy to a violation of a constitutional right.

.” We need not, however, an-alvze this broad assertion or the applicability of various jurisdictional statutes relating to constitutional claims. We are satisfied that the allegations made present a case within jurisdiction conferred by the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq.

We feel the allegations in substance claim that plaintiff is suffering legal wrong because of agency action, or is adversely affected or aggrieved by agency action within the meaning of a relevant statute, and that he is entitled to judicial review. Section 702. We are persuaded that the APA, through §§ 702-704, affords jurisdiction. See Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809; Brennan v. Udall, 251 F.Supp. 12, 14 (D.Colo.), aff’d., 379 F.2d 803 (10th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 477, 19 L.Ed.2d 468. The only question in Rusk was jurisdiction, see 369 U.S. at 370, 82 S.Ct. 787, and we feel that recognition of a jurisdictional grant was clear. See Toilet Goods Association v. Gardner, 360 F.2d 677, 679 n. 1 (2d Cir.), aff’d., 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; K. Davis, Administrative Law Treatise'§ 23.02 (1970 Supp.); but see State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1105 n. 7 (8th Cir.); Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir.), cert. denied 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256.

The APA has not been alleged or argued as a basis of jurisdiction. Averment of a jurisdictional statute, however, is not required. It is sufficient that the operative facts pleaded bring the case within the court’s jurisdiction. Beeler v. United States, 338 F.2d 687, 689 (3d Cir.); see Rule 8(a), F.R.Civ.P. Since we feel that the averments here come within jurisdiction conferred by the APA, we must disagree with the trial court’s ruling that subject matter jurisdiction was lacking.

Exhaustion of Administrative Remedies

Bard argues that the exhaustion requirement does not apply where one seeks to declare an instrument void on a constitutional ruling. And he contends that, in any event, he has exhausted all administrative remedies. We must disagree with both his contentions.

Turning first to the latter argument Bard claims to have sought relief from the Discharge Review Board, the General Accounting Office, the Department of the Air Force, and the Office of the Adjutant General, and that all of these bodies denied relief.

The record reveals that Bard has previously made demands for back pay, based on the allegedly invalid discharge, to the Claims Division, Department of the Air Force, Randolph Air Force Base, Texas, and to the Comptroller General of the United States, General Accounting Office (GAO), Washington, D. C. The fate of the first claim is not clear although it apparently was forwarded to the Air Force Accounting & Finance Center, in Denver and then sent back to Randolph Air Force Base, to the attention of either the Air Force Board for Correction of Military Records or the Discharge Review Board. Nothing else appears from the record.

The GAO evidently forwarded the second- claim to the Adjutant General of the Air Force, who then apparently submitted it to the Air Force Judge Advocate General’s office. This office finally made a determination, concluding that Bard had been properly discharged and that his claim was without merit. Later the GAO also replied to Bard, indicating that it did not have the authority to correct military records and referring him back to the Air Force.

Although Bard has made these previous administrative appeals, he has failed to avail himself of the administrative machinery specifically provided by Congress for the purpose of reviewing and correcting military discharges. See 10 U.S.C.A. § 1552. Pursuant to § 1552 the Air Force has established its Board for Correction of Military Records (BCMR), see 32 CFR § 865.1, et seq., and the courts have required that plaintiffs resort to such boards before obtaining judicial relief. See Nelson v. Miller, 373 F.2d 474 (3d Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980; Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915. We therefore believe that a strong policy exists that demands resort to the BCMR unless to do so would be futile.

We feel that Bard did not allege, nor demonstrate in the matters offered in the summary judgment procedures, that he had sufficiently presented his case to the BCMR. The Board is empowered to correct any military record of the department when it considers it necessary to correct an error or remove an injustice. See 10 U.S.C.A. § 1552(a). It may hold hearings on appeals brought to it, although this is not a matter of right. 32 CFR § 865.7. If a hearing is held, the BCMR will make written findings, decisions and recommendations, 32 CFR § 865.12. As we read the applicable statute and regulations, we believe that the BCMR has the power to afford Bard the relief that he seeks.

As stated, Bard also argues that exhaustion is not required since administrative boards cannot declare a discharge void for constitutional defects. However, there is no indication in the statutes or regulations that the Board cannot determine that a discharge, and the administrative action underlying it, was in violation of regulations. In fact, we feel the language looks the other way. The power of the BCMR to consider even constitutional defects is implicit in Ashe v. McNamara, 355 F.2d 277 (1st Cir.) and subsequent cases. See also, Smith v. McNamara, 395 F.2d 896 (10th Cir.), cert. denied, 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466. Moreover, if the Board can grant Bard the relief he seeks, which we feel it can, it is an adequate remedy, regardless of the ground on which it acts. A constitutional defect is not required to invalidate military action for failure to follow applicable regulations. See Cason v. United States, 471 F.2d 1225, 1230, 200 Ct.Cl. 424; Geiger v. Brown, 136 U.S.App.D.C. 132, 419 F.2d 714, 717-718.

For these reasons we conclude that Bard has not demonstrated exhaustion of available military remedies. Although exhaustion is not an inflexible requirement, see McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194; Gilchrist v. United States, 430 F.2d 631 (10th Cir.), its logic is usually compelling, and we find it to be so in these circumstances.

Accordingly, we hold that the trial court erred in ruling that subject matter jurisdiction was lacking, there being proper jurisdiction under the Administrative Procedure Act, and that the rulings on failure to establish any claim for relief and limitations need not have been reached. We further hold that the court properly dismissed the action since available administrative remedies have not been exhausted. The judgment of dismissal is modified to provide that the dismissal is without prejudice to further proper administrative proceedings and is granted on said ground alone. As modified, the judgment is affirmed.

      . A form DD256AF “Honorable Discharge” was issued to Bard on January 9, 1963. On the same date a related “Report Of Transfer Or Discharge” was issued to him on Form DD214. This latter instrument contains a notation: “Discharge under AFR 39-16 & Sec. B, AFR 39-16.” The regulation cited is one providing for “Discharge for Unsuitability,” on several general grounds including inaptitude; character and behavior disorders; apathy, defective attitudes and inability to expend effort constructively; enuresis; alcoholism; homosexual tendencies ; and obesity.
      Bard offered as an exhibit a letter dated May 12, 1964, from the General Services Administration to a prospective employer, stating:
      Mr. Charles W. Bard lias requested us to give you the specific reason for his discharge.
      He was separated because of his inability to face the requirements of military responsibilities.
      Accordingly, he was honorably discharged January 9, 1963 by reason of unsuitability Air Force Regulation 39-16, and issued an Honorable Discharge Certificate. (R. 6).

      . In Ins brief in opposition to the defendants’ motion to dismiss or for summary judgment, the plaintiff stated that on the basis of the admissions in defendants’ brief, the court should enter a summary judgment for the plaintiff. At the conclusion of the hearing the trial court stated:
      THE COURT: Gentlemen, for an assortment of reasons, in treating the motion before me as a Motion for Summary Judgement, in the first j)lace, the appropriate time provided by the rules for filing any and all affidavits have expired and the matter is properly before me on a summary judgement.
      In the second place, the parties have stipulated into the record the exhibits attached to the Comidaint and to the briefs and I believe it appropriate to rule on the matter as a Motion for Summary Judgement. But treating it as either a Motion for Summary Judgement or as a Motion to Dismiss, the motion is granted on at least the following grounds:
      First, I do not think I have jurisdiction over the subject matter of the action. Secondly, accepting the factual matters before me as true and considering them in the light most favorable to the plaintiff, I think the facts are insufficient to establish any claim for relief. Thirdly, to me it is manifest that the statute [sic] is barred by the Statute of Limitations; and lastly, I do not think that the plaintiff has exhausted his administrative remedies.
      For all of those reasons, the motion is granted.

      . Of course 28 U.S.C.A. § 1331 comes to mind, but no allegation of requisite jurisdictional amount is made. It is incumbent upon the plaintiff properly to allege such jurisdictional facts. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 56 S.Ct. 780, 80 L.Ed. 1135.

      . As to the applicability of the APA to a suit such as Bard’s we note that § 703 refers, among other things, to review by “any applicable form of legal action, including actions for declaratory judgments. . . .” Bard specifically sought declaratory relief.
      In addition § 706 provides inter alia for the reviewing court to hold unlawful and set aside agency action, findings and conclusions found to be not in accordance with law or without observance of procedure required by law.

      . A recognition of jurisdiction under the APA is implicit in several decisions. See Young v. United States, 498 F.2d 1211 (5th Cir.); Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134; Nelson v. Miller, 373 F.2d 474 (3d Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980; Unglesby v. Zimny, 250 F.Supp. 714 (N.D.Cal.); Crawford v. Davis, 249 F.Supp. 943 (E.D. Pa.), cert. denied, 383 U.S. 921, 86 S.Ct. 923, 15 L.Ed.2d 676; Covington v. Schwartz, 230 F.Supp. 249 (N.D.Cal.), modified, 341 F.2d 537 (9th Cir.).

      . Speaking with reference only to the APA and the Declaratory Judgment Act, the Court stated that: “[o]n their face the provisions of these statutes appear clearly to permit an action such as was brought here to review the final administrative determination of the Secretary of State.” Busk v. Cort, supra, 369 U.S. at 372, 82 S.Ct. at 790.

      . The record shows only a letter of transmittal from the Air Force Accounting and Finance Center to an address at Randolph AFB. The address is that of the Board of Correction of Military Records, see 32 CFR § 865.3(a), but reference is made only to the Discharge Review Board. The record reveals nothing concerning who may have received the letter of transmittal or what action, if any, was taken.

      . On January 16, 1973, GAO denied a claim by Bard for back pay due as a result of an allegedly void discharge. Its letter to Bard stated further that GAO did not have authority to correct military records or declare military discharges void for lack of due process. GAO called Bard’s attention to 10 U.S.C.A. § 1552(a), stating that “. . . the Secretary of a military department may correct any military record of that department when lie considers it necessary to correct an error or remove an injustice.”

      . Bard argues, relying on Brownfield v. United States, 148 Ct.Cl. 411, that an appeal to the Department of the Air Force by itself constitutes an exhaustion of available administrative remedies. Reliance on Brownfield, however, is inappropriate. There the plaintiff challenged his demotion on his retirement. The Secretary of the Air Force had himself reviewed the matter and ordered the demotion, and the plaintiff had twice unsuccessfully appealed directly to the Secretary. Thus the Secretary was aware of all the facts of the case and had personally taken the challenged action. In this context, and specifically limiting its holding to the circumstances of the case, the Court of Claims held that these appeals constituted sufficient exhaustion. The ease is quite unlike that of Bard and we see no reason to treat it as mandating an exception to the general exhaustion requirement.

      . Although there is some indication that correspondence concerning Bard’s claim may have reached the BCMR, see note 6, supra, Bard does not allege that he has applied to it or that it has acted on his claim, and the record reveals no response or determination by the BCMR. A certificate from the Department of the Air Force in the record states that as of April 17, 1973, diligent search of the records of the BCMR revealed no record of any application for correction of records or other relief by or in relation to Bard.

      . The Powers of the Board have been liberally construed. See 41 Op.Att’y Gen. 203 (1954); 41 Op.Att’y Gen. 94 (1952); 40 Op. Att’y Gen. 504 (1947).
      The government has also contended that Bard must take his appeal before the Air Force Discharge Review Board (DRB). Although the DRB possesses the authority to “change a discharge or dismissal, or issue a new discharge, to reflect its findings”, 10 U.S.O.A. § 1553(b), under Air Force regulations it may not revoke any discharge or dismissal or reinstate any person in the military service. 32 CFR § 865.101(b). Since Bard’s claim is that his discharge is void for procedural irregularity and should be set aside, it does not seem to come within the Air Force DRB’s jurisdiction as limited by the regulation. It may not revoke a discharge, which is in essence what Bard seeks. Hence we cannot agree that exhaustion of DRB procedures was required.