low-rent housing units for the elderly. One of the units was to be constructed in that portion of the City of Bethlehem situate in Northampton County and the other was to be constructed in that portion of the City of Bethlehem situate in Lehigh County. Proposals were submitted by a number of developers. Plaintiffs and defendant Zumas submitted bids with site locations in each county. At a regular meeting of the BHA on March 31-April 1, 1969, the BHA selected as its first choice for the Northampton County unit, the site proposed by plaintiffs; second choice was the Elm Street site of Zumas. BHA's first choice for the Lehigh County unit was the Leibert Street site proposed by Zumas and the alternate choice was a site submitted by plaintiffs. These recommendations were forwarded to the Regional Office of HUD in Philadelphia.
On April 22, 1969 the four sites recommended by the BHA were inspected by Thomas Anderson, a representative of HUD, and Ralph Bartholomew and Henry Bodder, members of the BHA. After inspecting the four sites Anderson, Bartholomew and Bodder agreed that the two Zumas sites were the more desirable. On June 6, 1969, HUD transmitted a letter to the BHA "concurring" in the selection of the two Zumas sites. At a regular meeting on June 9, 1969, the BHA, by a vote of four-to-one, approved the selection of the two Zumas sites. One member challenged the validity of this vote apparently because he believed that HUD had either misinterpreted the BHA's earlier recommendations from the March 31-April 1 meeting or that HUD was making the initial selection of sites in contravention of what this member believed to be the requirements of the "Low-Rent Housing Manual."
Thereafter, a meeting was held with HUD officials on July 1, 1969 at which the alleged procedural improprieties were discussed. On July 7, 1969 at a special meeting, the BHA rejected, by a three-to-two vote, a motion to rescind the action taken on June 9, 1969. The BHA, HUD and Zumas are presently engaged in the step-by-step process
outlined in HUD Regulations for reaching a final agreement for the construction of these turnkey projects. At this point, plaintiffs have been excluded from further negotiations with the two administrative agencies and plaintiffs seek to enjoin defendants from proceeding with their negotiations.
I. Plaintiffs' Standing as Taxpayers.
The Secretary's motion to dismiss contests plaintiffs' standing to maintain this suit. Plaintiffs contend that they have standing under the Supreme Court's recent decision in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).
Specifically, plaintiffs have alleged that the methods and procedures used by BHA and HUD in selecting sites and proposals for these turnkey projects violated HUD regulations
and thereby arbitrarily excluded plaintiffs from consideration for the award of the contracts on these projects. Plaintiffs argue that their "right to work" which they claim is protected under the Due Process Clauses of the Fifth and Fourteenth Amendments, and their right to equal protection of the law under the Fifth and Fourteenth Amendments, have been infringed and that they and all other effected taxpayers will be subjected to increased tax liabilities as a result.
To establish standing under the Flast decision a taxpayer must show a logical nexus between the status asserted as a taxpayer and the claim sought to be adjudicated so that the complaint will be presented in the adversary context required by Article III of the Constitution. To challenge the constitutionality of an exercise of congressional power under the taxing and spending clause,
a taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the taxing and spending power. It is not sufficient to allege "an incidental expenditure of tax funds in the administration of an essentially regulatory statute * * * " since this is not a challenge to the enactment itself. Further, an allegation that one is deprived of property without due process of law because of an increase in tax liability does not charge the type of "specific constitutional limitation" which creates standing for a taxpayer to challenge a congressional enactment. Flast v. Cohen, supra.
Plaintiffs here do not challenge the constitutionality of a legislative enactment under the taxing and spending clause of the Constitution, rather they attack an incidental expense in the administration of a statute. Their attack does not focus on the violation of constitutional rights of taxpayers generally, that is, on "specific constitutional limitations" on congressional taxing and spending power, but only on a specific infringement of plaintiffs' alleged constitutional right to be awarded a contract. Plaintiffs seek standing as taxpayers but in reality their status is that of unsuccessful bidders who are, coincidentally, taxpayers. As such, they have no standing to sue on the alleged constitutional grounds.
Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96 (1955); Contel Constr. Corp. v. Parker, 261 F. Supp. 428 (E.D.Pa.1966).
II. Plaintiffs' Failure to Set Forth a Valid Claim.
The Secretary's motion to dismiss also raises the question whether the complaint sets forth a claim upon which relief can be granted. Plaintiffs have attempted to state a valid claim under 28 U.S.C. § 1361 which provides as follows:
"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 to perform a duty owed to the plaintiffs."
Mandamus proceedings against government officials lie only with respect to performance or non-performance by those officials of non-discretionary acts. If the action or inaction complained of by a plaintiff is within the discretion of government officials or agencies, there is no "duty owed" to the plaintiff, and hence the court lacks the power to grant the requested relief. See, e.g., Smith v. United States Air Force, 280 F. Supp. 478, 479 (E.D.Pa.1968); Hill v. United States Board of Parole, 257 F. Supp. 129, 130 (M.D.Pa.1966); Armstrong v. United States, 233 F. Supp. 188, 190 (S.D.Cal.1964), aff'd 354 F.2d 648 (9th Cir. 1965), cert. denied, 384 U.S. 946, 86 S. Ct. 1472, 16 L. Ed. 2d 543 (1966); Parrott v. Cary, 234 F. Supp. 572, 574 (D.C.Colo.1964).
In the present case, plaintiffs contend that HUD and the BHA owed a duty to plaintiffs to apply applicable statutory and regulatory provisions equally and fairly, and not arbitrarily, in the selection of sites for these turnkey projects, and that the Secretary of HUD has failed in this duty by (a) selecting a site in Lehigh County (the Leibert Street site) which has a surface slope in excess of ten percent in violation of HUD Regulation 205.1(2c),
and (b) using improper procedures in the method of selecting sites in violation of HUD Regulation 221.1(4e).
(a) Excessive grade.
Plaintiffs' first contention is that Regulation 205.1(2c) absolutely forbids the selection, for a housing project for the elderly, of a site which has an undeveloped surface grade in excess of ten percent. This interpretation is too constrictive. Regulation 205.1(2c) provides as follows:
" Physical Characteristics. No site shall be selected where topography or subsurface conditions prevent economical and well planned development and operation of the project.