APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Van Dusen and Rosenn, Circuit Judges.
This controversy depends on the power of a district court to grant a continuance of an evidentiary hearing on an application for preliminary injunctive relief,*fn1 where an administrative agency has requested time to reconsider its ruling challenged in the case, and on the propriety of using such a power in the situation presented by this record. The above appeal challenges a March 1, 1978, district court order denying a motion filed January 31, 1978, by Bushkill-Lower Lehigh Joint Sewer Authority, defendant-intervenor (hereinafter "Authority"), to restrain the EPA Administrator (Costle) and the Regional EPA Administrator for Pennsylvania (Schramm) "from (a) continuing to breach the grant agreement between the United States Environmental Protection Agency ("EPA') and the defendant-intervenor and refusing and/or failing to process said grant agreement in accordance with the usual customary practices and procedures, (b) refusing and/or failing to defend these consolidated actions in good faith, and (c) refusing and/or failing to take proper and necessary steps in furtherance of securing the earliest practicable trial date of" two consolidated actions brought by Concerned Citizens and Taxpayers, et al., against Costle and Schramm. We affirm the district court order insofar as it denied the above portion of the motion filed January 31, 1978.*fn2
On October 26, 1977, the Concerned Citizens of Bushkill Township, et al. ("Concerned Citizens") and Plainfield Township Taxpayers Association, et al. ("Taxpayers") filed separate complaints in the district court, alleging that the above EPA officials were responsible for the decision to grant federal funds in amounts exceeding nine million dollars to the Authority for construction of a sewer project in Northampton County, Pennsylvania, known as the Bushkill-Lower Lehigh Interceptor-Collector System ("Interceptor-Collector System"). The complaints described the project as a system of sewer interceptors and collectors extending from Easton, Pennsylvania, upstream along two creeks for approximately 30 miles. The plaintiffs alleged that the proposed project would have a significant environmental impact, principally by encouraging development of a currently rural area, and that EPA had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 ff., by committing federal funds for the project and by doing so without first preparing an environmental impact statement ("EIS"). It also alleged that EPA's determination that the project would have no significant adverse environmental impact was arbitrary and capricious.*fn3 Further, it was alleged that EPA failed to study the environmental and economic impacts of the project for waste treatment funding, as required by the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1281.
On October 28, 1977, the parties stipulated that plaintiffs' motions for a preliminary injunction would be heard simultaneously with the trial on the merits on November 21, 1977, which trial date was subsequently reset for January 3, 1978. Further, the parties stipulated that EPA and the Authority would not issue any further project approval or accept or award any contracts for sewer construction until after the trial and district court decision.*fn4 Following a December 23, 1977, conference with the district court concerning settlement and EPA's desire to restudy the project, the January 3, 1978, trial date was continued and the parties were directed to appear before the court on February 3, 1978.*fn5
The district court opinion describes the situation before that court on February 3 and its decision to hear argument on the motion filed January 31, 1978, as follows:
"At the February 3, 1978 conference, EPA advised the Court that it had determined that its prior approval of the project without an environmental impact statement was or may have been based upon inaccurate and inadequate information, and that it had therefore decided to prepare an environmental impact statement, at least as to certain areas, to hold further project action in abeyance until such a statement could be prepared, with necessary public participation, fully considered, and ultimately filed in final form.
"At the same time, February 3, 1978, the Authority presented to the Court a complex motion, supported by some fifty pages of affidavits and brief, which it had earlier served upon other parties, and which it served upon the Court that very morning, and requested that the Court hold a hearing on the motion immediately. The Court declined to do so, and instead directed that the parties file briefs, and fixed oral argument thereon for February 28, 1978."
The parties had been actively engaged in discovery in the fall of 1977 and January 1978.
The district court concluded that the Authority's claims were basically for money damages against the United States for breach of contract or based on a United States statute and were barred by sovereign immunity, as well as the provision for recovery of such claims of over $10,000.00 against the United States in the Court of Claims (see 28 U.S.C. § 1491), using this language at 158a-159a:
"It is clear that the Authority's claims, both as stated in the proposed cross-claim, and by any independent analysis, ultimately constitute claims for money damages for breach of contract.
"This may be observed by noting what relief would satisfy the Authority: It is the disbursement of the project grant. Nothing less would alleviate the Authority's concerns. . . . Parenthetically, the Authority also requests that EPA be enjoined and mandamused to defend this action in good faith, but the sole basis for this claim is EPA's alleged contractual obligation, and the sole benefit to the Authority would again be the disbursement of the federal grant.
"Finally, this may be seen by the fact that neither EPA nor plaintiffs are doing anything to prevent the Authority from proceeding with the project. Given relief from its voluntary stipulation, there is no restraint whatsoever upon the Authority other than the matter of finances."
That court also held that there was no mandamus jurisdiction under 28 U.S.C. § 1361 because a discretionary, rather than a ministerial, duty was imposed on the original defendants and that an alternative remedy is available in the Court of Claims under 28 U.S.C. § 1491, citing Mattern v. Weinberger, 519 F.2d 150 (3d Cir. 1975); Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1975); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).*fn6
On March 1, 1978, the district court denied the motion of Authority and also provided in that order:
"It Is Further Ordered that said intervening defendant is relieved from its undertakings and obligations under the Stipulation and Order entered on October 28, 1977, and as to all other parties said Stipulation and Order shall remain in full force and effect, pending further order of this Court."
On March 7, the court entered an order transferring the case to the Civil Suspense File "for statistical purposes" pending preparation of an EIS "as to certain areas within the project . . .," without prejudice to the rights of the parties. On April 27, 1978, the Authority filed its notice of appeal challenging only the March 1, 1978, order.
The district court had jurisdiction to determine whether the defendants had made and were continuing to make an objective, good faith effort to comply with the requirements of Title 42, Chap. 55, of the United States Code, entitled National Environmental Policy Act. See National Helium Corp. II, supra at 1001-03, 1005-06 (Breitenstein, J., concurring). This court's jurisdiction is limited to reviewing that portion of the March 1, 1978, order refusing ...