author: COHEN, Senior District Judge:

text:
    ATLANTIC CITY MUNICIPAL UTILITIES AUTHORITY, Plaintiff, v. REGIONAL ADMINISTRATOR, REGION II, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.
    Civ. A. No. 85-0906.
    United States District Court, D. New Jersey.
    Aug. 27, 1985.

      Slap, Williams & Cuker, By: Albert J. Slap (argued) Philadelphia, Pa., admitted pro hac vice and John C. Matthews, Atlantic City, N.J., for plaintiff.
    Mary Gibbons Whipple, Asst. U.S. Atty., Trenton, N.J., and Ann C. Hurley, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., for defendant.
   OPINION

COHEN, Senior District Judge:

This injunctive action is before the Court on a motion to dismiss for lack of subject matter jurisdiction made by the defendant, the Regional Administrator of Region II (the Regional Administrator) of the United States Environmental Protection Agency (EPA). Alternatively, the EPA seeks summary judgment on the merits of the underlying action which has been brought pursuant to the citizen suit provision of the Federal Water Pollution Control Act (FWPCA) (the relevant portions of which are sometimes referred to as the Clean Water Act), 33 U.S.C. § 1251 et seq. Because we find that the plaintiff seeks to have this Court order the EPA Regional Administrator to perform a nondiscretionary duty, we shall hold that we have citizen suit jurisdiction pursuant to 33 U.S.C. § 1365(a)(2).

Because we further find that the EPA has properly insisted that, in order to receive a $3.5 million construction grant, plaintiff must obtain current state certification of its plan, we shall grant defendant’s motion for summary judgment.

I. Facts and Procedural History

The plaintiff in this action is the Atlantic City Municipal Utilities Authority (AC-MUA), a municipal corporation of the State of New Jersey operating pursuant to N.J. S.A. 40:14B-1 et seq. In August of 1980, the ACMUA submitted an application for an EPA grant to pay for the cost of acquiring a sewage collection system in Atlantic City, New Jersey. Pursuant to the Clean Water Act, plaintiff’s application was first addressed to the New Jersey Department of Environmental Protection (NJDEP). In order to understand our response to plaintiff’s subsequent complaints, it is necessary to gain some familiarity with the FWPCA funding scheme.

A. The Clean Water Act Construction Grants Application Process

Grant funds are annually appropriated by Congress and distributed by the EPA to citizens of the states based upon an allotment formula found at 33 U.S.C. § 1285. Currently, New Jersey entities receive about 4.2% of the total dollars available. Since September 30, 1984, these federal grants have provided up to 55% of a project’s total construction cost. Prior to the FWPCA amendment that set this maximum, EPA grants could provide up to 75% of total costs.

In order to become eligible, for a Clean Water Act grant, an organization must first obtain a favorable ranking in a state’s project priority list. See 33 U.S.C. § 1313(e)(3)(H). In New Jersey, these lists are annually prepared by NJDEP, the state agency designated by the Governor as having responsibility for the administration of EPA construction grants. See 40 C.F.R. § 35.2005(b)(42) (1984) (hereinafter all CFR citations are to the 1984 volume unless otherwise noted). Each NJDEP project priority list “contains two portions: the fundable portion, consisting of those projects anticipated to be funded from funds [currently] available ... and the planning portion, consisting of projects anticipated to be funded from future authorized allotments.” 40 C.F.R. § 35.2015(c). In determining the relative desirability of competing treatment projects, the NJDEP considers the cost of competing projects and the estimated public benefits to be derived therefrom as well as the propriety of federal aid. The last consideration depends upon several specific criteria codified at 33 U.S.C. § 1284 and 40 C.F.R. § 35.830(b).

If a grant application receives a favorable ranking on a state’s priority list, its fate passes to the EPA Administrator, see 33 U.S.C. § 1296, who must approve or disapprove the application within forty-five days after the date of its receipt. 33 U.S.C. § 1299. Applications not acted upon within this time period are deemed approved. Id. The EPA’s evaluation employs the same criteria as the state certification process and, in addition, the Administrator determines the following: (1) whether the proposed project conforms with the state water pollution control plan and has received priority certification by the relevant state agency; (2) whether the project is included in an effective basinwide plan for pollution abatement; (3) whether the project is included in an effective metropolitan or regional plan developed and certified by the Governors of the states affected; and (4) whether the grant applicant has demonstrated that the project will adequately and efficiently treat liquid wastes. See 40 C.F.R. § 35.835-1 to -1. See also 33 U.S.C. §§ 1284(b)(1) & 1296. In addition, where an existing water treatment facility is being modified, the grant applicant must provide assurance to the Regional Administrator that it will remain operable during construction. 40 C.F.R. § 35.835-8. Finally, the state water pollution control agency must provide assurance of at least annual inspection of the facility for the first three years following construction. Id. at -9.

The process by which appeals are taken from a Regional Administrator’s determination of funding eligibility (or ineligibility) has recently been changed. ACMUA’s appeal, which is more fully discussed below, was taken to the EPA Board of Assistance Appeals. This Board, which was established by the EPA in 1979, provided an adversarial dispute resolution format. Its procedures are published at 44 Fed.Reg. 46,770 (1979) (never codified in CFR). Seeking a more “simple, expeditious and inexpensive means to resolve disputes,” see 48 Fed.Reg. 45,061 (1983), the EPA developed a new administrative review process which is described at 40 C.F.R. § 30, Sub-part L (§§ 30.1200-1235). The new review process has only recently become effective because the Board of Assistance Appeals was charged with resolving all appeals docketed on or before October 31, 1983.

Pursuant to the new appeals process, a Regional Administrator’s grant decisions are conclusive unless a petition for a discretionary review is filed to the EPA Assistant Administrator within thirty days of the date of the Regional Administrator’s decision. 40 C.F.R. § 30.1225. As implied, the Assistant Administrator may decide not to review the Regional Administrator’s decision. Id. at § 30.1225(2)(b). Thus, in many cases, the decisions made by the Regional Administrators will be the final decisions of the EPA.

If a construction grant application is approved, the EPA prepares an assistance agreement which must be signed by the grant applicant within three, weeks after receipt. Id. at § 30.305(a). The execution of an assistance agreement creates contractual obligations both on the part of the EPA and on the part of the grant recipient. The obligations of the latter are explicitly nondelegable. Id. at § 30.309. Disagreements about assistance agreement requirements are handled in the same manner as those regarding funding applications. Id. at § 30.1200.

B. ACMUA’s Construction Grant Application

The plaintiff submitted its grant application to the NJDEP on August 5, 1980 and therein requested the state to include the purchase of a privately owned, sewage collection system on its priority list for fiscal year (FY) 1980. The application was atypical in this respect because EPA policy clearly favors the funding of new sewage system constructions rather than the rehabilitation of old systems. Nevertheless, the FWPCA broadly defines the term “construction” to include acquisitions and EPA regulations specifically authorize regional administrators to award grants for the acquisition of existing treatment facilities. 40 C.F.R. § 35.940-3(d).

Apparently impressed by the need to rehabilitate the Atlantic City system, construction of which began in 1885, as well as the engineering and economic analyses obtained by the ACMUA, the New Jersey Construction Grants Administrator informed the group, by letter dated May 19, 1980, that he would support their funding application. The project received official support on the FY 1981 priority list and was ranked number 154 out of 231 eligible projects.

This litigation essentially began when the EPA Regional Administrator denied funding for the state certified project in FY 1981.

His denial was based on the following reasons:

1. The acquisition did not conform with EPA’s policy of assigning the highest priority to the construction of new facilities.
2. The acquisition would not eliminate existing pollution and enhance water quality.
3. If the acquisition were funded by EPA, the result, contrary to EPA policy, would be to reduce the debt the Authority would incur in purchasing the collection system.

Appeal of ACMUA, Docket No.'81-19, EPA Board of Assistance Appeals, slip op. at 4 (attached as Exhibit B to plaintiff’s complaint) (hereinafter cited as EPA Bd. op.). Pursuant to the aforementioned dispute resolution provisions of the EPA regulations, the ACMUA appealed the Regional Administrator's decision to the EPA Board of Assistance Appeals (the Board) and on October 28, 1982, the Board reversed the regional determination.

The Board's reversal was based primarily on its interpretation of a draft Construction Grants Program Requirements Memorandum (RPM), dated November 16, 1979, which provides the EPA’s only guidelines for the acquisition of pre-existing sewage facilities. See 40 C.F.R. § 35.940-3(d). The Board found that each of seven criteria enumerated therein had been met. Specifically, the Board found “that the clear weight of the evidence demonstrates that significant pollution benefits will be gained by acquiring and rehabilitating the existing system.” EPA Bd. op. at 7. Additionally, New Jersey’s low number of new construction projects would have permitted the AC-MUA’s acquisition of the privately owned system without jeopardizing federal funding for any new construction projects. Id. at 8. Finally, the Board found that the proposed rehabilitation was “the most cost-effective and practicable alternative” for providing pollution control benefits to the area, id. at 9, and that the rehabilitation could not begin until the ACMUA purchased the system. Id. at 8. Thus, the Board concluded that the Regional Administrator’s denial was “unreasonable and ... supported by neither the facts nor the law.” Id. at 11.

Approximately nine months after rendering this decision, the Board denied the Regional Administrator’s motion for reconsideration. The Board succinctly reaffirmed that it had based its holding on the draft RPM criteria. Accordingly, the Board concluded that ACMUA’s purchase “of the sewer system is entitled to be federally funded.” EPA Bd. Reconsideration op. at 2 (attached as Exhibit C to plaintiff’s complaint) (emphasis supplied).

Although this language seems mandatory and unqualified, the Regional Administrator’s subsequent refusal to release the requested EPA funds did not contradict or resist the Board’s directive. Instead, the Regional Administrator refused to grant EPA funds to the ACMUA for a reason which was not addressed by the EPA Board of Appeals: New Jersey had not certified the ACMUA project since FY 1981 and he felt that it was necessary, pursuant to 33 U.S.C. § 1284(a)(3), to confirm that file project was still supported at the state level and thereby entitled to a place on New Jersey’s FY 1985 priority list. See Affidavit of William J. Muszynski, Regional Director of EPA Region II (attached to Defendant’s Brief).

Initially, the reason for the Regional Administrator’s refusal to release the funds in question to the ACMUA seemed to be the only material fact in dispute in this case. The dispute, however, was never genuine. Instead, the controversy consisted only of the ACMUA’s bald assertion, In its complaint, that the refusal of the Regional Administrator, William J. Muszynski, was motivated by bad faith. Now, however, the ACMUA does not dispute Mr. Muszynski’s affidavit and accepts that his refusal was based on its failure to obtain recertification from the NJDEP. See Plaintiff’s Brief at 2. Plaintiffs also agree that “[n]o material facts are in dispute.” Id. at 1. Thus, the substantive issue presented by this case is whether the Regional Administrator properly refused to release the money sought from the EPA because the plaintiff's project had not become state certified in the current fiscal year even though the subject grant had received priority listing in a previous year and was not funded because of an erroneous interpretation of the relevant EPA regulations by the EPA Regional Administrator. We, of course, cannot reach this determination unless we first decide that this Court is vested with subject matter jurisdiction.

II. Discussion

A. Plaintiffs Complaint and Requests for Relief

Defendant’s primary contention is that “the relief sought [by ACMUA] is in actuality an order compelling a payment of money [by the United States] in excess of $3,573,750.00.” Defendants’ Brief at 7. Thus, defendants contend that ACMUA’s claim falls squarely within the exclusive Tucker Act jurisdiction of the Claims Court. At first blush, this contention is not unsupportable. See, e.g., United States v. City of Kansas City, Kansas, 761 F.2d 605, 608 (10th Cir.1985). For the reasons which follow, however, we disagree.

It is, of course, first necessary to scrutinize plaintiff’s requests for relief and determine the identity of the real parties in interest. In its complaint, the plaintiff maintains that the EPA should have provided it with the requested grant money as soon as the EPA Board of Assistance Appeals (the Board) reversed the Regional Administrator’s ineligibility determination. Plaintiff appears to have taken umbrage when the Administrator sought Board reconsideration, Plaintiff’s Complaint 1116, and was obviously piqued when the Administrator required FY 1985 state certification. Id. at HI 19-22. In fact, plaintiff maintained that EPA’s decisions were not only in bad faith, but “manifest[ed] a conduct that is outrageous and is abhorrent to the democratic system of government.” Id. at ¶¶ 30-31. Not surprisingly, therefore, the plaintiff requested this Court to “[a]ssess punitive damages against those EPA employees who are responsible for not following the requirements of the law and the express directions of the Board.” Yet, these employees have never been named as defendants. Thus, without regard to its otherwise dubious merits, this relief could not be granted even assuming arguendo the availability of punitive damage awards, see 33 U.S.C. § 1319(d) and the absence of jurisdictional obstacles.

Plaintiff also seeks injunctive relief. Specifically, the ACMUA requests this Court to order the EPA to provide it with the grant certified in the NJDEP FY 1981 priority list. Additionally, plaintiff seeks an order compelling the EPA “to pay any shortfall in the amount ACMUA needs to purchase” the sewage treatment system at 1985 prices.

The citizen suit provision, discussed more fully below, explicitly empowers a court to order the EPA Administrator to perform nondiscretionary duties and to apply “any appropriate civil remedies under section 1319(d) of [the FWPCA].” 33 U.S.C. § 1365(a). The question of whether a request, like the plaintiff’s herein, which seeks to have the Court order the EPA to disburse grant funds, is within the injunctive ambit of § 1365(a) or is a thinly disguised demand for unavailable damages is not easily answered. Although this question is considered at some length below, it is not dispositive. Instead, we shall hold that this Court has jurisdiction, pursuant to § 1365, to order the EPA Administrator to perform a nondiscretionary duty, specifically, to determine whether the appropriate state agency has certified that a grant application is entitled to priority over others on a state’s priority list. See 33 U.S.C. § 1284(a)(3).

Plaintiff’s remaining claims for relief seek an award of costs and counsel fees as well as whatever other legal and equitable relief this Court deems to be just and proper. The FWPCA specifically authorizes awards of the costs of litigation in appropriate citizen suits. See 33 U.S.C. § 1365(d). Thus, except regarding its merits, this request need not engender particular discussion.

Similarly, we think it is clear that both plaintiff’s request for injunctive relief and other “just and proper” equitable relief encompass a permissible request for a declaration regarding the need for current NJDEP certification. See Fed.R.Civ.P. 57. Certainly, we could not order the EPA Administrator to abandon his insistance on FY 1985 state certification without first finding and declaring that the same is not required by the FWPCA. Moreover, the immediacy of their controversy and the adverse interests of the parties warrant this kind of equitable relief. See Middlesex Cty. Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 14-17, 101 S.Ct. 2615, 2623-24, 69 L.Ed.2d 435 (1981); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). Compare J.E. Brenneman v. Schramm, 473 F.Supp. 1316, 1319-20 (E.D.Pa.1979) (contractor lacked standing to contest EPA Administrator’s failure to require a grant recipient to submit cost estimates). This construction of plaintiff’s complaint does not complicate our jurisdictional inquiry because the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202, does not serve as an independent source of subject matter jurisdiction. See Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1438 (S.D.Fla.1984) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1950)).

Although unspecific in this regard, plaintiff’s complaint seems clearly to be directed against the Regional Administrator (who is not identified) in his official capacity. Thus, if successful, it would operate against the sovereign and the Tucker Act, discussed below, may be applicable. See, e.g., Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052, 10 L.Ed.2d 191 (1941); Portsmouth Redevelopment & Housing Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir.1983). Contra Williamsport Sanitary Authority v. Train 464 F.Supp. 768, 775 (M.D.Pa.1979).

Similarly, because the determinations of the Regional Administrator in this context are often final EPA determinations, see supra p. 725, we shall construe plaintiff’s complaint as stating a cause of action against the EPA Administrator thereby rendering the citizen suit provision of the FWPCA applicable. Ultimately, it is the EPA Administrator who is charged with the responsibility of determining whether a state certified project is entitled to funding. 33 U.S.C. § 1284. Thus, we would not dismiss plaintiff’s complaint for lack of subject matter jurisdiction merely because it names as defendant the EPA Regional Administrator, instead of the EPA Administrator, without first permitting the appropriate amendment. See Fed.R.Civ.P. 15. Our subsequent disposition makes this amendment unnecessary.

B. Sovereign Immunity, the Tucker Act, and the Jurisdiction of the Claims Court

As just mentioned, suits against a federal official for acts performed within his official capacity are actions against the sovereign and are prohibited in the absence of Congressional consent. See, e.g., United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Further, because it evinces a waiver of sovereign immunity, the grant of such a right of action must be made with specificity and not by implication. Id.

The Tucker Act, 28 U.S.C. §§ 1346 and 1491, is a jurisdictional statute that does not itself create any substantive rights against the United States. Instead, it establishes

three conditions which, if satisfied, vest subject matter jurisdiction exclusively in the Claims Court. The action must be against the United States, seek monetary relief in excess of $10,000, and be founded upon the Constitution, federal statute, executive regulation, or government contract.

Portsmouth Redevelopment, 706 F.2d at 473. But cf. Coco Bros., Inc. v. Pierce, 741 F.2d 675 (3d Cir.1984) (Claims Court’s equitable jurisdiction is not exclusive of that of the district courts). Not every claim invoking the Constitution, a federal statute or regulation, however, creates a claim cognizable in the Claims Court. The noncontractual claims considered under § 1491

can be divided into two somewhat overlapping classes—those in which the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum; and those demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury ... [because of] a particular provision of law.

Eastport Steamship Company v. United States, 372 F.2d 1002, 1007, 178 Ct.Cl. 599 (1967). The Eastport Steamship analysis of the Claims Court’s noncontractual jurisdiction was approved by the Supreme Court in Testan, 424 U.S. at 398, 96 S.Ct. at 953, and further clarified by the Claims Court in City of Manassas Park v. United States, 633 F.2d 181, 224 Ct.Cl. 515 (1980). There, Judge Nichols provided helpful examples of the two categories of noncontractual claims that are within the Claims Court’s exclusive jurisdiction.

The first [category] is for money illegally exacted, and in Treasury coffers, as, e.g., tax refund claims. The second is when the claimant urges that some specific provision of law commands expressly or by implication the payment of money, upon proof of conditions he is said to meet, e.g., fifth amendment taking claims or claims by illegally discharged government employees for back pay.

Id. 633 F.2d at 183. Before considering the claims of the plaintiffs herein in the light of this analysis, we note further that Congress can withdraw the Claims Court’s exclusive Tucker Act jurisdiction via subsequent legislation but that a court should not find such “partial repeals” of the Tucker Act to have been made “by implication.” Ruckelshaus v. Monsanto Co., — U.S. —, 104 S.Ct. 2862, 2881, 81 L.Ed.2d 815 (1984) (emphasis supplied).

Although the EPA insists that plaintiff’s claim lies within the exclusive jurisdiction of the Claims Court, it does not attempt to identify the claim as contractual or as arising under a specific federal statute or regulation. Instead, the defendant relies on two similar cases and concludes that courts have repeatedly held that claims like those of the ACMUA were “monetary ... in excess of $10,000 and, as such, were within the Claims Court’s exclusive jurisdiction.” Defendant’s Brief at 9. Examination of these two cases, Heart of Valley Metro. Sew. Dist. v. EPA, 532 F.Supp. 314, 316 (E.D.Wis.1981) and Concerned Citizens of Bushkill Township v. Costle, 468 F.Supp. 21 (E.D.Pa.1978) aff’d 592 F.2d 164 (3d Cir.1979), as well as other precedent, is far more enlightening.

In Heart of Valley, the district court was presented with a jurisdictional dispute virtually identical to the one in the case sub judice. There, however, the plaintiffs grant application was denied funding by both the EPA Regional Director and by the Board of Assistance Appeals. The court properly noted that its “inquiry did not end with a finding that the [grant applicant was] seeking monetary relief in an amount greater than $10,000.” 532 F.Supp. at 317. Instead, the court went on to consider whether Tucker Act jurisdiction existed by virtue of a government contract, or a federal statute or regulation.

The court subsequently rejected EPA’s position that its refusal to approve the grant application constituted a contractual dispute. At the same time, the court recognized that an assistance agreement, engendered by a successful grant application, becomes a contractual obligation of the United States and is enforceable in the Court of Claims. See, e.g., State of Texas v. United States, 537 F.2d 466, 110 Ct.Cl. 522 (1976). We are in accord with each of these conclusions.

Finally, the Heart of Valley court considered whether the claim of a disappointed grant applicant fell within one of the two categories of the Claims Court’s noncontractual jurisdiction. Judge Warren found that it did. Because the grant applicant’s complaint sought federal funds based on “33 U.S.C. § 1281 et seq. [the FWPCA] and 40 C.F.R. § 35-940-3(b) [allowable treatment work costs]” it was included within the second noncontractual category. Id. at 318. For whatever reasons, however, after rejecting two alternative jurisdictional bases, 5 U.S.C. § 701 et seq. (the Administrative Procedure Act) and 28 U.S.C. § 1331 (federal question), the court did not consider whether the citizen suit provision of the FWPCA, 33 U.S.C. § 1365, withdrew the presumptively established Tucker Act jurisdiction. See Monsanto, 104 S.Ct. at 2881. Although we agree with all of Judge Warren’s stated jurisdictional conclusions, we believe it is necessary to make this final inquiry.

The suit in Concerned Citizens was initiated, appropriately enough, by groups of concerned citizens who claimed that EPA officials (individually named as defendants) had improperly awarded a construction grant to a sewer authority without first requiring, inter alia, an environmental impact statement. The sewer authority sought to intervene and to bring cross claims contending that the EPA had breached “the grant agreement as a contract” and failed to defend the concerned citizens’s suit in good faith. 468 F.Supp. at 24. Judge Troutman concluded that the citizen suit provision did not provide a jurisdictional basis for these cross claims because they alleged that the EPA Administrator had failed to do only discretionary acts to which § 1365 clearly does not apply. Id. at 26.

Although this aspect of Judge Trout-man’s opinion was not considered upon appeal, see 592 F.2d at 165 n. 2, we have no doubt as to its propriety. There seems to be little question that a Regional Administrator must use his discretion or judgment in order to determine whether a particular grant fund application meets the numerous criteria discussed supra at pp. 724-725. See also United States v. City of Kansas, 761 F.2d 605 (10th Cir.1985). Similarly, the manner in which one defends a lawsuit is inherently discretionary. Neither consideration, however, resolves the specific issue before this Court, to wit: May an EPA Administrator use his or her discretion to require current state certification in some but not in all proposed projects? If this question is answered in the negative, i.e., if we find that current state certification is either required or not required by the FWPCA (and is not within the discretion of the EPA administrator), then Concerned Citizens is inapposite and that aspect of the Claims Court’s jurisdiction, established by the second noncontractual category articulated in Eastport Steamship, would not prevent our adjudication of the present controversy.

Review of two other cases is indispensable to a full understanding of the Claims Court jurisdiction as it relates to this case. In City of Manassas Park v. United States, 633 F.2d 181, 224 Ct.Cl. 515, cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980), Judge Nichols, speaking for the Claims Court, noted that generally “[w]hen the government prescribes how grant money is to be used, it is performing sovereign acts for which it is not liable on á contract theory.” Id. at 184. Accordingly, the court dismissed the claim of the plaintiff sewage authority as being outside the scope of its Tucker Act jurisdiction. This case has been misapprehended by present counsel who have proposed that it stands for the proposition that EPA grant agreements are unenforceable in the Claims Court. This is simply incorrect.

The sewer authority in Manassas Park (an EPA grant recipient) complained that the government “forced” it to accept a grant totalling 75% of an eighty-two million dollar sewage project when it only sought a grant for a forty-nine million dollar project. The EPA insisted on the larger amount in order to comply with its requirement that each grant be sufficient to produce a “complete and operable treatment works” thereby avoiding “unfinished and useless facilit[ies].” Id. at 182. The sewer authority agreed to the larger amount. In its subsequent suit, however, the authority sought an “equitable adjustment” in their grant agreement, which would make it responsible for 25% of only the $49,000,000 figure, contending that the government had somehow coerced its consent. Judge Nichols held that this claim was “not contractual but [was] one for misgovernment excluded from Tucker Act jurisdiction----” Id. at 184. The plaintiff never even alleged that the EPA had breached its grant agreement.

Relying upon City of Manassas, the district court in Allegheny County Sanitary Authority v. E.P.A., 557 F.Supp. 419 (W.D. Pa.1983) aff’d 732 F.2d 1167 (3d Cir.1984), held that, for the purposes of considering plaintiffs request for a preliminary injunction, its allegation that EPA officials had approved an improper Pennsylvania priority list was “a claim for misgovernment beyond the jurisdiction of the Court of Claims.” 557 F.Supp. at 426. Although the court accepted the well pleaded material allegations of plaintiff’s complaint as true and refused to dismiss the count in plaintiff’s complaint directed against the EPA defendants, id. at 427, it denied plaintiff’s request for a preliminary injunction. On appeal, the Third Circuit concluded that this denial did not constitute an abuse of discretion. 732 F.2d at 1177. It did not have to consider the district court’s ability to hear a claim for permanent relief, however, because a “district court [may] properly exercise[ ] jurisdiction over [a] motion for a preliminary injunction, while postponing a jurisdictional ruling on [a] damages claim.” Coco Bros., 741 F.2d at 677 n. 1. Thus, this case is not governed by the Allegheny County appellate court opinion because the plaintiff, ACMUA, seeks permanent relief.

Moreover, the Allegheny County case is factually distinguishable in an important way. There, the plaintiffs alleged that the EPA officials had misapplied the complex criteria used to evaluate grant applications. See 33 U.S.C. § 1284; 40 C.F.R. § 35.835. Their complaint was virtually identical to the appeal which the plaintiff herein brought successfully to the EPA Board of Assistance Appeals. The ACMUA’s present complaint, however, merely alleges that the EPA Regional Administrator improperly required a current, FY 1985 state certification. Unlike the Allegheny County court, we have not been asked to evaluate an EPA decision regarding the propriety of a state certification decision; we have only been asked, essentially, to determine the existence of a state certification decision (i.e., whether a FY 1981 certification is still effective in 1985). We have not been asked to find that an official’s determination, of whether a proposed facilities plan is likely to succeed in a cost-effective manner, is not a discretionary act. See 33 U.S.C. § 1298(b).

C. The FWPCA “Citizen Suit” Withdraws Tucker Act Jurisdiction Over Nondiscretionary Acts

Assuming arguendo that a claim that one has been improperly denied a FWPCA grant would fall within the second noncontractual category of the Claims Court’s exclusive Tucker Act jurisdiction, we find that the citizen suit provision of the FWPCA withdraws this jurisdiction when the claim is based upon the failure of an EPA official to perform a nondiscretionary act. See Monsanto, 104 S.Ct. at 2881. Compare Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823-24 (10th Cir. 1981) (exclusivity of Claims Court’s jurisdiction is not withdrawn by general federal question jurisdictional statute, 28 U.S.C. § 1331). Thus, we need not consider “the intriguing question of whether Congress may consistent with the Constitution and separation of powers principle, place exclusive equitable jurisdiction in an Article I Court to enjoin and compel activities of the executive branch.” Coco Bros., 741 F.2d at 679 n. 4.

The citizen suit provision of the FWPCA reads in relevant part:

(a) [A]ny citizen may commence a civil action ...
(2) against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator____
The district courts shall have jurisdiction without regard to the amount in controversy or the citizenship of the parties, ... to order the Administrator to perform such act or duty____

33 U.S.C. § 1365.

The FWPCA does not specify or imply what acts or duties of the EPA Administrator are not discretionary. Judicial decisions, however, have established that “discretionary” is not a term of art and is to be given its ordinary meaning. Thus, notwithstanding the fact that 33 U.S.C. § 1319(a)(3) states that the EPA Administrator shall issue abatement orders when he learns of a FWPCA violation, courts have held that the decision to issue such orders is discretionary. See, e.g., Sierra Club v. Train, 557 F.2d 485 (5th Cir.1977). Similarly, EPA’s decisions regarding the issuance of effluent discharge permits are discretionary and, therefore, not reviewable via a citizen’s suit. District of Columbia v. Schramm, 631 F.2d 854 (D.C.Cir. 1980); Sun Enterprises, Ltd. v. Train, 532 F.2d 280 (2d Cir.1976). See also J.E. Brenneman Co. v. Schramm, 473 F.Supp. 1316 (E.D.Pa.1976). These decisions of the EPA Administrator require application of scientific expertise to a particular set of circumstances. They seem, therefore, inevitably to involve an exercise of discretion. One must use discretion to decide “questions arising in a particular case not expressly controlled by fixed rules of law according to the circumstances and ... [one’s] judgment.” Webster’s Third New International Dictionary 647 (14th ed. 1961).

The same cannot be said of the question of whether an EPA grant application must obtain current state certification. We believe that the FWPCA either requires current certification or it does not. The concept of “[discretion may be as elastic as a rubber-band but it, too, has a breaking point.” Birnbaum v. United States, 588 F.2d 319, 329 (2d Cir.1978). The question of whether a particular project requires current state certification need not and, in fact, should .not be left to the discretion of the EPA Regional Administrator. Thus, we hold that we have jurisdiction to do the following: (1) to order the EPA Administrator to determine whether the ACMUA grant application is entitled to priority over other such proposals in New Jersey’s priority list, see 33 U.S.C. § 1284(a)(3); and (2) to decide whether the Regional Administrator properly construed § 1281(a)(3) as requiring the ACMUA project to be listed on the New Jersey FY 1985 project priority list. See Manatee County, Fla. v. Train, 583 F.2d 179 (5th Cir.1978).

III. The FWPCA Requires A Construction Grant Applicant To Obtain Current State Certification

The FWPCA does not explicitly state that in order to receive an EPA grant, a new construction project must have current state priority certification. It does provide, however, that supplementary grants, which reflect an increased percentage of the EPA’s contribution to a project’s total costs, shall be awarded “without regard to the fiscal year for which funds were [initially] authorized.” 33 U.S.C. § 1282(b). Similarly, an EPA regulation explicates that “[a]ny project which is not contained on an accepted current priority list will not receive funding.” 40 C.F.R. § 35.2015(e)(3) (1984) (emphasis supplied). A number of other regulations suggest that the fundable portion of priority lists are meant to be controlling or effective for only one fiscal year. See, e.g., id. at (e). Most importantly, the Act’s entire funding structure presupposes annual state certification.

Congressional allotments for EPA grants are made on an annual basis. Id. at § 35.2010(a). Each year, states submit a new priority list to the EPA. Clearly, the ranking of projects in a priority list addresses the relative, not the inherent, merits of each. The perceptions held by the NJDEP, regarding what water treatment facilities are most needed, simply may change from year to year. The FWPCA sensibly permits these perceptions to be given effect.

In this case, for example, the FY 1981 NJDEP evaluation of the ACMUA proposed project may no longer accurately reflect the water treatment needs of New Jersey. The EPA Board of Assistance Appeals, it should be recalled, specifically premised its approval of the ACMUA project on the relatively low number of competing, proposed acquisitions. EPA Bd. op. at 8. Thus, funding the ACMUA project did not jeopardize funding for the new construction grants which the EPA favors. See supra p. 8 n. 3. The NJDEP may no longer view the ACMUA proposal in this light. If we prevented the NJDEP from fully participating in the FY 1985 evaluation process, by insisting that it abide by one of its FY 1981 conclusions, we would subvert the FWPCA funding scheme.

For the foregoing reasons, we hold that the EPA Regional Administrator properly interpreted the FWPCA and shall grant defendant’s motion for summary judgment. Accordingly, plaintiff’s request for an award of the costs of litigation shall be denied. The Court shall issue an appropriate order.

      . The amendment in question was enacted in 1981, the year in which plaintiff’s grant application was certified for EPA funding. Notwithstanding its previous contentions of EPA bad faith, the plaintiff has never alleged that this amendment has had any impact on the current dispute.

      . The grant money in question, which is available to provide financial assistance for the construction of sewage treatment facilities, is often referred to as a "Step 3" grant. The EPA also awards grants in order to permit applicants to undertake feasibility studies (Step 1 grants) and to prepare resulting drawings and specifications (Step 2 grants). See H.R.Rep. No. 270, 97th Cong., 1st Sess. 4, reprinted in 1981 U.S.Code Cong. & Ad.News 2629, 2632. Because neither of the preliminary investigative types of grants are at issue, we shall not employ the "step” nomenclature.

      . Apparently, the ACMUA grant application was also given some kind of informal NJDEP approval in FY 1980 despite not having been placed on the state’s priority list for the year. See EPA Bd. op. at 3.

      . The draft RPM provides that:
      Acquisition of an operable portion of a treatment works is generally not an allowable grant cost. However, the Regional Administrator may allow the acquisition of any or all portions of an existing treatment works in the limited and rare occasions when all the following criteria can be fulfilled:
      1. The acquisition would be consistent with established policy that the highest priority is assigned to the construction of facilities which will reduce pollution from the existing population and enhance water quality.
      2. The acquisition has received a separate project priority certification from the State’s water pollution control agency.
      3. A facility planning type analysis unquestionably supports the acquisition as the cost-effective means of reducing existing pollution in order to meet the discharge requirements of the [state] permit.
      4. The acquisition does not result in a change of ownership or restructuring of the financial investment without any additional pollution control benefits.
      5. The construction or previous purchase of the acquisition did not involve Federal or public monies.
      6. The acquisition costs are reasonable, computed in accordance with established Federal practices, and otherwise allowable.
      7. The acquisition does not circumvent any statutory requirements, such as an environmental review.
      The Regional Administrator’s three stated reasons for denying the grant appear to have been based upon criteria one and four. EPA Bd. op. at 4-5.

      . In pertinent part, 33 U.S.C. § 1284(a) provides:
      Before approving grants for any project ... the Administrator shall determine—
      (3) that such works have been certified by the appropriate state water pollution control agency as entitled to priority over such other works in accordance with any applicable state plan____
      The question of whether annual certification is required is addressed infra pp. 733-734.

      . See Fed.R.Civ.P. 56(e). Moreover, even without regard to defendant’s summary judgment motion, the plaintiff bears both the initial and final burden of proving that this Court has subject matter jurisdiction. E.g., Thomson v. Gas-kill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942).

      . Although we shall address the jurisdiction question first, the jurisdictional and substantive issues presented by this case actually are curiously interwoven. If the Regional Administrator’s decision, to deny funding to any project that does not appear on a current state priority list, is deemed to be discretionary, any judicial review thereof would not be plenary and his decision would stand absent an abuse of discretion. Yet, if the decision is deemed to be discretionary, this Court does not have subject matter jurisdiction to review it pursuant to the FWPCA "citizen suit” provision, 33 U.S.C. § 1365(a)(2), the only jurisdictional basis proffered by the plaintiff for our consideration.

      . Section 1346(a)(2) provides district courts with jurisdiction, concurrent with the Claims Court, over
      Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort, which are subject to sections 8(g)(1) of the Contract Disputes Act of 1978.
      28 U.S.C.A. § 1346 (West Supp.1985).
      In relevant part, § 1491 provides:
      (a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
      (3) To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief. In exercising this jurisdiction, the court shall give due regard to the interests of national defense and national security.
      28 U.S.C.A. § 1491 (West Supp.1985).

      . "The Federal Court Improvements Act of 1982 created the Article I Claims Court and essentially transferred to it the trial jurisdiction of the former Court of Claims.” Coco Bros., 741 F.2d at 677.

      . Judge Troutman also expressed concern about the sewer authority's failure to comply with the notice provision of § 1365. Id. at 26. But see Pymatuning Water Shed Citizens For a Hygienic Environment v. Eaton, 506 F.Supp. 902 (W.D.Pa.1980) aff’d 644 F.2d 995 (3d Cir.1981) (per curiam) (notice requirement is not jurisdictional).

      . In relevant part, § 1298 provides:
      before the Administrator approves any grant to any ... agency for the erection ... [or] acquisition ... of any treatment works the Administrator shall determine that the facilities plan ... constitutes the most economical and cost-effective combination of treatment works over the life of the project to meet the requirements of this chapter____
      33 U.S.C.A. § 1298(b) (West Supp.1985).

      . We shall not equate "not discretionary" with ministerial. Otherwise, given the existence of mandamus jurisdiction pursuant to 28 U.S.C. § 1361, we would hold that Congress added little, or perhaps nothing at all, to FWPCA enforcement by enacting 33 U.S.C. § 1365(a)(2). See, e.g., Taylor v. United States Dept. of Labor, 552 F.Supp. 728, 744 (E.D.Pa.1982).


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Jacqueline HAFNER, Plaintiff, v. The LUTHERAN CHURCH-MISSOURI SYNOD; Ontario District of the Lutheran Church-Missouri Synod; Albin Stanfel; Konstantine Hahn; Gerald Scholz; Dr. Ralph Bohlman; Matthias Krey, as Chairman of the Department of Missions, Defendants. Milton HAFNER, Plaintiff, v. The LUTHERAN CHURCH-MISSOURI SYNOD; Ontario District of the Lutheran Church-Missouri Synod; Albin Stanfel; and Ralph Bohlman, Defendants.
    Nos. 84-612, S 84-737.
    United States District Court, N.D. Indiana, South Bend Division.
    Aug. 27, 1985.

      Milton Hafner, Middlebury, Ind., for plaintiffs.
    Gregory L. Kelly, Lynn C. Tyler, Douglas K. Dieterly, South Bend, Ind., Robert P. Stoner, Valparaiso, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Milton Hafner is an ordained minister in the Lutheran Church-Missouri Synod and is married to Jacqueline Hafner. Milton Hafner is also a duly licensed attorney at law. The complaint of Jacqueline Hafner was filed October 3, 1984 and the complaint of Milton Hafner was filed on Decembér 10, 1984. Both complaints portend to invoke the jurisdiction of this court on the basis of diversity of citizenship under 28 U.S.C. §§ 1332 and 1441. The allegations of the complaints in each case are basically the same except that Jacqueline Hafner alleges the status of a third party beneficiary in the contract to which her husband, Milton Hafner, was a party. Milton Hafner alleges that he became ill while he was a pastor in the Ontario District of the Lutheran Church-Missouri Synod and became disabled. He further alleges that Article III, Section 10 of the Constitution of the Lutheran Church-Missouri Synod placed a duty upon the Ontario defendants to provide for his welfare and that the Ontario defendants failed to discharge this duty. It is further alleged that Article III, Section 10 of the Constitution of the Lutheran Church-Missouri Synod did not become effective until January 23,1980. Milton Hafner’s ministry in the Ontario District lasted until the middle of 1980 at which time he resigned as the pastor of the Mount Olive Lutheran Church in London, Ontario. He continued to work for the Ontario District until the end of 1980. During the entire period between 1976 and end of 1980 Milton Hafner and his wife were residents of Ontario, Canada. He also received treatment for his condition at the Homewood Sanitarium in Guelph, Ontaria, Canada.

Albin J. Stanfel has been President of the Ontario District of the Lutheran Church-Missouri Synod since 1972 and has never been a citizen or resident of the State of Indiana although he is a citizen of the United States of America. Albin J. Stanfel has visited Indiana on several occasions in his capacity as an officer in the Ontario District. Between 1976 and 1981 Stanfel attended meetings in Fort Wayne, Indiana on four or five times per year as an officer of the Concordia Lutheran Theological Seminary located in St. Catharines, Ontario. Each meeting lasted approximately a day and a half and since 1981 his trips to Indiana as such an officer have been less frequent. Stanfel attended a meeting at the office of Dr. Elwood Zimmermann, President of the Indiana District of the Lutheran Church-Missouri Snyod in Fort Wayne, Indiana on January 26, 1984 in an attempt to deal with the claims and controversies that are reflected in the two lawsuits now before this court. Stanfel has also corresponded with Milton Hafner and others in Indiana on four or five occasions with regard to Hafner’s moving expenses and continued status as a pastor as well as with regard to matters unrelated to the present case. Stanfel owns no real or personal property located in the State of Indiana. Defendants Stanfel,' Gerald Scholz, Konstantine Hahn have been at all times during the pendency of this ease and for some considerable time prior thereto residents of Canada.

All of the defendants in this case raise a fundamental constitutional challenge to the subject matter jurisdiction of this court based upon the First Amendment of the Constitution of the United States and the interpretation thereof by the Supreme Court of the United States, and indeed by this judge in a case decided in the Court of Appeals of the State of Indiana. These defendants bottom the challenge to the subject matter jurisdiction on the most recent relevant statement on that subject as found in the Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). In that case the majority stated:

“[T]he First Amendment severly circumscribed the role that civil courts may play in resolving church property disputes. First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern____ The First Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.” This principle applies with equal force to church disputes over church policy and church administration. 426 U.S. 709-10, 96 S.Ct. 2380-81.

The majority decision in the Serbian Eastern Orthodox case parallels and is consistent with the earlier decision of the Court in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). It is also to be noted that this judge writing for another court in Draskovich v. Pasalich, 151 Ind. App. 397, 280 N.E.2d 69 (1972) cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1974) dealt with the Mary Elizabeth Blue Hull Memorial Presbyterian Church case in a fashion consistent with the Supreme Court’s decision in the Serbian Eastern Orthdox Diocese case.

In this case the plaintiffs are asking this court to interpret Article III, Section 10 of the Constitution of the Lutheran Church-Missouri Synod. The relevant provision provides:

The Synod, under Scripture and the Lutheran Confessions, shall—
10. Aid in providing for the welfare of pastors, teachers and other church workers, and their families in the event of illness, disability, retirement, special need, or death.

There is some divergence of views between the plaintiffs and the defendants as to the duties that may be imposed upon the defendants under the aforesaid provisions of that church constitution.

If the plaintiffs are correct it will become the function of this court to interpret that provision of that church constitution. Such an inquiry is the kind of inquiry that was requested of and rejected by the Supreme Court of the United States in the Serbian Eastern Orthodox Diocese case and in the Court of Appeals in Indiana in the Draskovich case. A superficial and cursory examination of the Constitution of the Lutheran Chureh-Missouri Synod demonstrates beyond question that it is basically and fundamentally a religious doctrine. Indeed, it is the organic document of that church. It includes multiple citations to the Scriptures and a confession of faith.

The progeny of the Serbian Eastern Orthodox Diocese is relevant. In Kaufmann v. Sheehan, 707 F.2d 355 (8th Cir.1983), a priest, in the Roman Catholic Church brought an action against an archbishop of that church for defamation on the basis of the disclosure of a psychiatrist’s report by the archbishop about the priest. A district court held that the defamation claim was barred by the statute of limitations and the priest sought to amend his complaint to allege a violation of due process. The district court, however, denied the motion for leave to amend and the United States Court of Appeals for the Eighth Circuit affirmed stating:

The allegations of combination, conspiracy, and concerted course of action contained in the proposed amended complaint might arguably state a claim for. fraud or collusion, particularly when viewed under the Haines v. Kerner [404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1974)] standard of liberal construction for pro se pleadings. Significantly Milivojevich did not foreclose “ ‘marginal civil court review’ under the rubrics of ‘fraud’ or ‘collusion’ when church tribunals act in bad faith for secular purposes.” In the instant case, however, Kaufmann’s claims relate to his status and employment as a priest, and possibly to other matters of concern with the church and its hierarchy, and go to the heart of internal church discipline, faith, and church organization, all involved with ecclesiastical rule, custom, and law____ In spite of Kaufmann’s argument, the proposed amendments to the complaint deal only with matters of religion and there is no allegation that we can construe in any other light. 707 F.2d at 358-59. (emphasis added).

In this case the plaintiff’s claim relates to his status and employment as a pastor and to matters of concern with the church and its ecclesiastical hierarchy. Indeed, Count VI of the plaintiff Milton Hafner’s complaint alleges that Roy Knoll as Executive Secretary of the Ontario District, exceeded his authority apparently as defined by the Constitution of the Lutheran Church-Missouri Synod.

Although decided before the Serbian Eastern Orthodox Diocese but after the Mary Elizabeth Blue Hull Memorial Presbyterian Church case, the case of McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972) is relevant progeny of that 1969 decision of the Supreme Court of the United States. In McClure, a former ordained minister of the Salvation Army brought suit alleging that she had been a victim of discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964. In affirming the district court’s dismissal for lack of subject matter jurisdiction, the Court of Appeals for the Fifth Circuit stated:

An application of the provisions of Title VII to the employment relationship which exists between the Salvation Army and Mrs. McClure, a church and its minister, would involve an investigation and review of these practices and decisions and would, as a result, cause the State to intrude upon matters of church administration and government which have so many times before been proclaimed to be matters of a singular ecclesiastical concern. Control of strictly ecclesiastical matters could easily pass from the church to the State. The church would then be without the power to decide for itself, free from state interference, matters of church administration and government.
Moreover, in addition to injecting the State into substantive ecclesiastical matters, an investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty, which involve a person at the heart of any religious organization, could only produce by it coercive effect the very opposite of that separation of church and State contemplated by the First Amendment. 460 F.2d at 560.

To avoid a subject matter constitutional jurisdictional infirmity, the Fifth Circuit held that Congress did not intend for Title VII of the Civil Rights of 1964 to regulate the employment relationship between a church and its minister. Two years later the same court in Simpson v. Wells La-Mont Corp., 494 F.2d 490 (5th Cir.1974), faced a similar issue. Again, the plaintiff was a minister and again the defendant was his church. In this case the minister’s first sermon apparently displeased the members of his congregation and shortly thereafter, the Circuit of the United Methodist Church, which had employed him, relieved him of his charge. The minister brought suit pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986. The Court of Appeals affirmed the district court’s dismissal for lack of subject matter jurisdiction and stated that the interaction between the church and its pastor is an integral part of church government. The relationship between an organized church and its minister is its life blood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. The initial function of selecting a minister is a matter of church administration and government. So are the functions which accompany retention and retirement.

The aforesaid authorities lead this court inescapably to the conclusion that this court lacks subject matter jurisdiction over this dispute between a minister and his church regarding the conditions of his employment and post-employment obligations. Therefore, on that basis alone the motions to dismiss and to grant summary judgment to the defendants are well taken and should be granted.

II.

A.

There are also more mundane, traditional and jurisdictional problems relating to whether or not any of the defendants in this case are subject to the personal jurisdiction of this court. There can be no doubt that the Lutheran Church-Missouri Synod as a church enity does “do business” in this district and might be subject to the personal jurisdiction of this court were it not for the aforesaid inhibitions imposed by the First Amendment of the Constitution of the United States as last interpreted by the Supreme Court in the Serbian Eastern Orthodox Diocese case.

With respect to the remaining defendants a more serious problem arises as to the necessary contacts with the State of Indiana under Indiana Trial Rule 4.4. This court has been the author of a number of opinions which deal with the outer due process limits of that Indiana Trial Rule. See Stoutco Inc. v. Amma, Inc., 570 F.Supp. 1376 (N.D.Ind.1983) and Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306 (S.D.Ind.1978). For an early word on this subject by this judge see Security Credit Acceptance Corp. v. State of Indiana, 144 Ind.App. 558, 247 N.E.2d 825 (1969) and for an early word by this judge speaking for this court on the subject, see Valdez v. Ford, Bacon & Davis Texas, Inc., 62 F.R.D. 7 (N.D.Ind.1974). See also, Cumis Insurance Society, Inc. v. South-Coast Bank, 587 F.Supp. 339 (N.D.Ind.1984); Subacz v. Town Tower Motel Corp., 567 F.Supp. 1308 (N.D.Ind.1983); W & W. Farms, Inc. v. Chartered Systems, 542 F.Supp. 56 (N.D.Ind.1982). Except for the Lutheran Church-Missouri Synod none of the defendants in this case have had any relevant contact with the State of Indiana that would subject them to the personal jurisdiction of this court. Generally, a corporate officer who has contact with a forum only in regard to the performance of his official duties is not subject to the personal jurisdiction of that forum. A person whose contact with the forum stems from acts performed in a corporate capacity is generally not subject to personal jurisdiction in the forum in his individual capacity. See Forsythe v. Overmyer, 576 F.2d 779 (9th Cir.1978) and K-Mart Corp. v. Knitjoy Mfg. Inc., 534 F.Supp. 153 (E.D.Mich.1981), supplemented 542 F.Supp. 1189. See also C. Wright, A. Miller, Federal Practice and Procedure § 1069 at page 58 (supplement 1984).

Reverend Stanfel has never lived in Indiana, has attended religious meetings in Indiana unrelated to this case and has corresponded with Milton Hafner while Milton Hafner has lived in Middlebury, Indiana and has corresponded with business enterprises in Elkhart, Indiana in regard to Milton Hafner’s moving expenses on several occasions. He did attempt to resolve the differences here by attending a meeting in Fort Wayne, Indiana. It would be stretching the most liberal intendment of Indiana Trial Rule 4.4 to assert personal jurisdiction over Reverend Stanfel on the basis of his attendance of a settlement conference in this district in his official capacity. The remaining defendants have had virtually no contact of any kind that is relevant to this case in this district or state. Here, the quantity and quality of the contacts with Indiana are in sharp contrast to those in Burger King Corp. v. Rudzewicz, — U.S. —, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

B.

Some of the defendants also have asserted that the courts in Ontario, Canada are more convenient forum and have requested the dismissal on that basis. This is certainly the slenderest of all the reeds which the defendants attempt to lean upon for the dismissal of this case. It is correct that when a foreign country is a more convenient forum an action may be dismissed for improper venue on that bases. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court identified several factors relevant as to whether a district court should dismiss a case for forum non conveniens:

A. Private interest factors
1. Relative east of access to sources of proof.
2. Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses.
3. Possibility of view of premises, if view is appropriate.
4. Enforceability of a judgment.
5. All other practical problems that make trial of the case easy, expeditious and inexpensive.
B. Public Interest Factors
1. Congestion of the Court’s docket.
2. Burden of imposing jury duty on a community which has no relation to the litigation.
3. Local interest in having localized controversies decided at home.
4. Whether local or foreign law will govern.

330 U.S. at 508-09, 67 S.Ct. at 843.

Certainly one can make a very strong argument that the above factors announced by the Supreme Court in Gulf Oil Corp. lean heavily in favor of Ontario, Canada as the most convenient forum in which to decide this case. (This court does not know, has not been advised, and does not attempt to speculate on whether or not the provisions of Canadian law would inhibit the courts of that jurisdiction from attempting to decide and interpret the provisions of this church constitution.)

The only connection that this court has with this case is that the fact that after the dispute arose between Milton Hafner and his church he moved into this district.

Again, on this issue the Lutheran Church-Missouri Synod stands on a different bases than the remaining defendants. This court doubts that it would be any more inconvenient for the Lutheran Church-Missouri Synod to try this case in Indiana that it would to try it in Ontario, Canada. However, it would appear that the remaining parties are indeed indispensable to this dispute and that it would be very inconvenient for the remaining defendants to try this case in the Northern District of Indiana.

C.

There is an additional problem referred. to in the parantheses above. This problem relates to the choice of law that might be applicable even if this court had subject matter jurisdiction. Since this is alleged to be a contract dispute the “most intimate contact” test must be applied by this court with reference to the choice of law. See Suyemasa v. Myers, Ind.App., 420 N.E.2d 1334 (1981). Even assuming that the plaintiff here could get over the First Amendment subject matter jurisdictional hurdle the law of Canada would have to be applied. This would be true whether or not the bases of the plaintiffs’ claim sound in tort or in contract. It is now beyond any dispute that Indiana follows the lex loci delicti choice of law rule for torts. See Zandman v. Joseph, 102 F.R.D. 924, 930 (N.D.Ind.1984); and see also Eby v. York-Division, Borg-Warner, Ind.App., 455 N.E.2d 623, 626 (1983).

The factual setting of Schertenleib v. Traum, 589 F.2d 1156 (2d Cir.1978), illustrates the application of these ideas. The plaintiff in that case was a Swiss attorney who was suing a New York attorney on the basis of events which took place in Geneva, Switzerland. The New York attorney controlled several foreign mutual funds and had retained the Swiss attorney to sue the funds. The Swiss attorney caused the Attorney General of Switzerland to file a criminal complaint against the funds. The Swiss attorney alleged that he, the Swiss attorney, dropped the criminal matter because the New York attorney promised to redeem the share of the investors. The Swiss attorney further alleged that the New York attorney breached the settlement agreement and wasted the assets of the funds. Finally, the Swiss attorney alleged that the New York attorney then filed criminal charges against him (the Swiss attorney) in Switzerland and caused the Swiss attorney to be arrested. The district court in New York dismissed the complaint and the Court of Appeals for the Second Circuit affirmed, noting that the balance of factors weighed heavily in favor of Switzerland as the proper forum. The court noted that none of the events occurred in the United States; none of the sources of proof were in the United States; all of the witnesses were in Geneva except the defendant; the expenses of bringing witnesses to the United States would be prohibitive; foreign citizens were not subject to compulsory process in the United States; Swiss law would govern the dispute; and several documents would have to be translated from French into English, imposing additional expenses. There is certainly no need for translation here but the other factors identified in Schertenleib are significantly comparable to those in this case.

It is correct that the Supreme Court of the United States has not decided whether federal or state law govern the dismissal of a diversity case on forum non conveniens. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Indiana courts, however, consider the same factors as applying federal law. Forum non conveniens is governed by Indiana Trial Rule 4.4(C), which provides in pertinent part:

Jurisdiction under this rule is subject to the power of the court to order the litigation to be held elsewhere under such reasonable conditions as the court in its discretion may determine to be just.
In the exercise of that discretion, the court may appropriately consider such factors as:
(1) Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
(2) Convenience to the parties and witnesses of the trial in this state in any alternative forum;
(3) Differences in conflict of law rules applicable in this state and in the alternative forum; or
(4) Any other factors having substantial bearing upon the selection of a convenient, reasonable, and fair place of trial.

Certainly there is an overlay between the factors considered in Indiana Trial Rule 4.4(C) and those identified by Justice Jackson for the Supreme Court in Gulf Oil Corp. v. Gilbert. Factors number 1 and 2 in Gilbert are identical. The fourth factor is significantly extensive enough to encompass the other Gulf Oil Corp. factors. Thus, under both Indiana and federal law the dismissal of this case could be based upon forum non conveniens. The values spelled out by Justice Jackson in Gulf Oil v. Gilbert remain alive and well and are the conceptional backdrop for section 1404(a) of Title 28 of the United States Code. The suggestion is here made by the plaintiffs that the Gilbert factors have been replaced by 28 U.S.C. § 1404(a). Such is not the case. The historical and revision notes in the United States Code Annotated indicates that section 1404(a) has been in effect since 1948 and grew from a felt need announced in Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28 (1941). Where the more convenient forum is a foreign court section 1404(a) would not be directly applicable although the case law developed under it may be considered.

D.

Some of the defendants make an argument that these are tort claims that would be subject to the two year statute of limitations as found in 6 Ind.Code § 34-1-2-2(1) (1982). This court chooses not to bottom any decision here on that bases.

This case is DISMISSED. Each party will bear its own costs. SO ORDERED.

      . See also Merryman v. Price, 147 Ind.App. 295, 259 N.E.2d 883 (1970), cert. denied, 404 U.S. 852, 92 S.Ct. 89, 30 L.Ed.2d 92 (1971). Cf. United Methodist Church v. St. Louis Independent Methodist Church, 150 Ind.App. 574, 276 N.E.2d 916 (1971); March v. Kragulac, Ind.App., 415 N.E.2d 91 (1981), and Grutka v. Clifford, Ind.App., 445 N.E.2d 1015 (1983). For an application of the First Amendment in the area of teacher employment in church-related schools see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979).

      . This court’s independent research, through West Law, indicates that Gulf Oil Corp. v. Gilbert has been cited no less than 800 times since 1948. The most recent is Burger King Corp. v. Rudzewicz, — U.S. —, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). See especially footnote 20 which cites both 28 U.S.C. 1404(a) and Gulf Oil Corp. v. Gilbert in precisely the same vein. For a recent example of a district court dismissing a case on the bases of forum non-conveniens where the most convenient forum is in a foreign country, see Stamoulos v. Howland Panama, S.A., 610 F.Supp. 453 (E.D.La.1985).

      . The reasoning and result in Piper is of particular moment here. Gulf Oil v. Gilbert is reaffirmed. The factual setting is similar. Schertenleib is cited with approval in footnote 21. It is very supportive of the decision here announced.