B-192417, JUL 31, 1978

B-192417, JUL 31, 1978

RE: J.E. BRENNEMAN COMPANY V. SCHRAMM, C.A. NO. 78-2028 (D.C., E.D. PA.)

ROBERT FORSTER, ASSISTANT ATTORNEY:

DURING OUR RECENT PHONE CONVERSATION CONCERNING THE SUBJECT LITIGATION, I OBJECTED TO THE REQUEST FOR RELIEF FOUND IN PLAINTIFF'S COMPLAINT IN MANDAMUS FILED IN THE SUBJECT LITIGATION. THE REQUESTED RELIEF WOULD PREVENT EPA AND ITS GRANTEE FROM EXPENDING REMAINING GRANT FUNDS UNTIL GAO HAS CONDUCTED AN AUDIT OF SIX AREAS ASSOCIATED WITH THE CONTESTED WASTEWATER TREATMENT CONSTRUCTION GRANT. AT OUR CONVERSATION'S CONCLUSION, I UNDERSTOOD YOU TO AGREE THAT OUR OBJECTIONS SHOULD BE BROUGHT TO THE COURT'S ATTENTION, AND THAT THIS COULD BE ACCOMPLISHED IN CONJUNCTION WITH A MOTION FOR DISMISSAL OR SUMMARY JUDGMENT THAT YOU ANTICIPATE FILING IN MID-AUGUST.

ENCLOSED FOR YOUR INFORMATION IS A COPY OF GAO'S MOST RECENT ANNUAL REPORT. CHAPTER 1 IS AN OVERVIEW OF GAO'S ACTIVITIES AND IS A GOOD STATEMENT OF GENERAL BACKGROUND ABOUT GAO.

YOU ALSO REQUESTED INFORMATION ABOUT GAO'S STATUTORY AUDIT AND REVIEW AUTHORITY. GAO'S BASIC AUDIT AUTHORITIES ARE FOUND AT 31 U.S.C. 53, 67 AND 1154. THE FIRST OF THESE, 31 U.S.C. 53, IS DERIVED FROM THE BUDGET AND ACCOUNTING ACT, 1921, AND AUTHORIZES THE COMPTROLLER GENERAL OF THE UNITED STATES (WHO HEADS THE GAO) TO INVESTIGATE "ALL MATTERS RELATING TO THE RECEIPT, DISBURSEMENT, AND APPLICATION OF PUBLIC FUNDS." THE COMPTROLLER GENERAL IS ALSO TO MAKE SUCH INVESTIGATIONS AND REPORTS AS REQUIRED BY EITHER HOUSE OF CONGRESS OR BY ANY COMMITTEE HAVING REVENUE, APPROPRIATIONS OR EXPENDITURE JURISDICTION.

THE SECOND GENERAL AUDIT AUTHORITY, 31 U.S.C. 67, WAS ENACTED AS PART OF THE ACCOUNTING AND AUDITING ACT OF 1950 AND AUTHORIZES GAO TO AUDIT THE FINANCIAL TRANSACTIONS OF EXECUTIVE, LEGISLATIVE AND JUDICIAL AGENCIES. FINALLY, 31 U.S.C. 1154, PART OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, AUTHORIZES THE COMPTROLLER GENERAL TO REVIEW AND EVALUATE THE RESULTS OF GOVERNMENT PROGRAMS.

ALTHOUGH THESE THREE STATUTES DO NOT CONSTITUTE THE ENTIRE LEGISLATIVE LIST OF GAO AUTHORITIES, THEY ARE THE BASIC AUTHORITIES FOR GAO'S AUDITS AND MANAGEMENT REVIEWS.

WHILE I DO NOT INTEND TO MAKE THIS LETTER A LEGAL BRIEF, I DO WANT TO REITERATE MY OBJECTIONS TO THE COMPLAINT'S REQUEST FOR RELIEF INSOFAR AS IT REQUIRES A GAO AUDIT. IN SUM, IT APPEARS THAT THE COURT IS PRESENTLY WITHOUT JURISDICTION OVER GAO, AND THAT, EVEN IF IT HAD JURISDICTION, GRANTING THE REQUESTED RELIEF WOULD BE INAPPROPRIATE AND POSSIBLY ILLEGAL.

THIS MANDAMUS ACTION IS BROUGHT AGAINST AN EPA REGIONAL ADMINISTRATOR. GAO IS NOT NAMED AS A PARTY AND, ACCORDING TO OUR RECORDS, HAS NEVER BEEN SERVED IN THIS ACTION. ON THE BASIS OF KNOWN FACTS, IT APPEARS THAT THE COURT LACKS JURISDICTION OVER GAO FOR WANT OF SERVICE AND CANNOT COMPEL IT, AS A NON-PARTY, TO PERFORM THE REQUESTED AUDIT.

PLAINTIFF'S REQUEST THAT GAO CONDUCT AN AUDIT CONSTITUTES, IN EFFECT, A MANDAMUS ACTION AGAINST GAO. MAINTENANCE OF SUCH AN ACTION IS PREMISED ON 28 U.S.C. 1361, WHICH STATES:

"THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ANY ACTION IN THE NATURE OF MANDAMUS TO COMPEL AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY THEREOF TO PERFORM A DUTY OWED TO THE PLAINTIFF."

PLAINTIFF'S COMPLAINT ALLEGES NO DUTY OWED TO IT BY GAO AND SO IS DEFICIENT ON ITS FACE. MOREOVER, WHATEVER DUTY GAO MAY OWE TO THE HOUSES OF CONGRESS OR THEIR COMMITTEES BECAUSE OF 31 U.S.C. 53, 67 AND 1154, ABOVE, NONE OF THESE AUTHORITIES CREATES ANY DUTY OWING TO INDIVIDUAL MEMBERS OF THE PUBLIC THAT WOULD SUPPORT MANDAMUS. IN ADDITION, PLAINTIFF'S STANDING TO BRING AN ACTION AGAINST GAO IS EXTREMELY SUSPECT. CERTAINLY THERE IS NO STATUTE APPLICABLE TO GAO THAT IS COMPARABLE TO 33 U.S.C. 1365, WHICH GIVES CITIZENS STANDING TO SUE EPA.

AN ORDER THAT GAO CONDUCT THE AUDIT REQUESTED BY PLAINTIFF CREATES OTHER PROBLEMS AS WELL. IF GAO MADE FINDINGS OF FACT THAT WERE NOT BINDING ON ALL PARTIES, INCLUDING THE COURT, ANY PARTY COULD CHALLENGE THE AUDIT RESULTS. SINCE THE COURT WOULD THEN HAVE TO RESOLVE MATTERS, NO TIME WOULD BE SAVED AND GAO'S AUDIT WOULD SERVE NO USEFUL PURPOSE. ON THE OTHER HAND, IF GAO'S FACT FINDINGS WERE BINDING ON ALL PARTIES, INCLUDING THE COURT, THEN GAO RATHER THAN THE COURT BECOMES THE ULTIMATE FINDER OF FACT. WHETHER THE COURT CAN DELEGATE THIS ASPECT OF ITS JUDICIAL AUTHORITY TO GAO IS QUESTIONABLE.

I ORIGINALLY MENTIONED TO YOU THAT THE REQUESTED COURT-ORDERED AUDIT EFFECTIVELY PUT GAO INTO THE BUSINESS OF ADMINISTERING THE WASTEWATER TREATMENT CONSTRUCTION GRANT PROGRAM CONTRARY TO 33 U.S.C. 1281 ET SEQ., WHICH PLACES THAT RESPONSIBILITY ON THE EPA ADMINISTRATOR. SINCE THE PROJECT IS AT LEAST PARTIALLY COMPLETED, I ASSUME THE ADMINISTRATOR HAS MADE THE NECESSARY JUDGMENTS AND GIVEN HIS APPROVAL OF THE PROJECT'S PLANS AND SPECIFICATIONS AS REQUIRED BY 33 U.S.C. 1283. THIS BEING THE CASE, MY ARGUMENT LOSES MUCH OF ITS FORCE SINCE GAO WOULD NOT, AS AN INITIAL MATTER, BE SUBSTITUTING ITS JUDGMENT FOR THE ADMINISTRATOR'S. HOWEVER, FOR THE REASONS I PREVIOUSLY MENTIONED, THE REQUESTED GAO AUDIT STILL SERVES NO USEFUL PURPOSE.

I APPRECIATE YOUR OFFER TO BRING THESE MATTERS TO THE COURT'S ATTENTION SHOULD CONDITIONS WARRANT. IN ORDER TO PRESERVE OUR NON PARTY STATUS, HOWEVER, IT WOULD BE BEST IF THE FOREGOING VIEWS ARE PRESENTED WITHOUT ATTRIBUTION TO GAO, OR IN SOME OTHER NEUTRAL MANNER, SO AS NOT TO GIVE THE IMPRESSION THAT YOUR OFFICE IS REPRESENTING GAO.

I APPRECIATE THE TIME TAKEN TO BRING ME UP TO DATE ON THE SUIT'S STATUS. IF I CAN BE OF FURTHER ASSISTANCE, PLEASE LET ME KNOW. I CAN BE REACHED AT FTS 275-5212.